Backlogs – Page 50 – immigrationcourtside.com

“’DUH’ ARTICLE OF DA DAY” – Former FBI Acting Director McCabe Says “then–Attorney General Sessions [was] a Trump-like idiot and racist” – Gee, Seems Like That Was What Liz, Corey, & The Black Caucus Told Us – But McConnell Silenced The Truth & He & His GOP Cronies Subjected America To Perhaps The Worst & Least Qualified Attorney General In U.S. History!

https://slate.com/news-and-politics/2019/02/andrew-mccabe-book-jeff-sessions-irishmen.html

Molly Olmstead reports for Slate:

Former FBI Deputy Director Andrew McCabe’s new book, which details his frustrations with President’s Trump administration, has made it clear that his “disdain for Trump is rivaled only by his contempt for [Jeff] Sessions,” according to an assessment from Washington Post reporter Greg Miller.

According to Miller’s review of the book, McCabe saw then–Attorney General Sessions as a Trump-like idiot and racist who had “trouble focusing, particularly when topics of conversation strayed from a small number of issues,” failed to read intelligence reports, and jumbled classified material with publicly reported news.

The strangest detail from the book, though, had to do with Sessions’ thoughts on the FBI’s hiring practices. According to the Post:

The FBI was better off when “you all only hired Irishmen,” Sessions said in one diatribe about the bureau’s workforce. “They were drunks but they could be trusted. Not like all those new people with nose rings and tattoos — who knows what they’re doing?”

According to a Wall Street Journal review of the book, McCabe wrote in his book that Sessions was only interested in immigration issues. He obsessed over the connection between crime and immigration, and he believed that Islam was an inherently violent religion, according to the Post. When presented with a counterterrorism case, he would first ask where the suspect was born or where the suspect’s parents were from. “He blamed immigrants for nearly every societal problem and uttered racist sentiments with shocking callousness,” Miller concluded from McCabe’s book.

McCabe’s assessment is surprising in only that it comes so bluntly from a man who once was acting head of the FBI but now seems intent on speaking out against the men who made his professional and personal life so difficult for 10 months (before he was fired just hours before his planned retirement, blocking him from receiving his full pension benefits). Sessions has a long, long history of making racist and anti-immigrant comments, while also implementing racist and anti-immigrant policies. A non-exhaustive list includes: allegedly warning a black lawyer to “be careful how you talk to white folks”; calling the NAACP “un-American”; reportedly joking that he used to think the KKK was “OK” until he discovered some smoked marijuana; praising an 1924 immigration act promoted by Nazi-style eugenics; denigrating a judge in Hawaii as “sitting on an island in the Pacific”; fondly remembered George Wallace, America’s most famous segregationist politician, as “one of the most formidable third-party candidates in this century; and lauding “the Anglo-American heritage of law enforcement.”

As for actions, in Alabama, Sessions punished black activists, defended voter suppression tactics, and kept black judges off the federal bench. He opposed sentencing reform over the crack-cocaine disparity. He has opposed hate crime protections and defended the official display of the Confederate flag. He has regularly attended events hosted by anti-immigrant and anti-Muslim groups, which he maintains a close relationship with. He touted falsehoods about DACA and immigrants in general. And of course, he pushed, relentlessly, for deportations and prosecutions of undocumented immigrants and even refugees fleeing domestic and gang violence.

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Sessions is a living example of how someone can spend a lifetime “on the dole” as a so-called “public servant” without providing any meaningful positive service or contributions to the public good.

Compare this “life not so well lived” with the “real world” contributions of the many decent, hard-working, honest, and dedicated civil servants who were screwed over by Trump’s shutdown. Or, compare Sessions’s squandered, anti-social life with the significant “real life” contributions of many of the immigrants, both documented and undocumented, who came before me in Immigration Court over 13 years.

I’m not sure even the worst of the aggravated felons that I ordered deported did as much lasting damage to our nation and its future as did Sessions! He was a child abuser on a grand scale, and someone who used knowingly false narratives to send deserving refugees, particularly abused women, back to torture or even death in the countries from which they had fled. He was the architect of both family separation and the unbridled expansion of the “New American Gulag.”

He promoted hate, intellectual dishonesty, ignorance, bias, and intolerance of all kinds, and was an avowed enemy of kindness and human compassion. He even had the absolute audacity to cite the Christian Bible, the compassionate, merciful, inclusive, and forgiving teachings of one of the world’s greatest “outcasts,” in support of his own perverted, bias-driven, and totally un-Christian world view.

Oh yeah, and he had no management qualifications going into the job and proved, beyond a reasonable doubt, that he couldn’t manage his way out of a paper bag. Seldom in modern times has there been a more demoralized, mission-less, and dysfunctional mess than today’s Department of Justice. Even Watergate didn’t do as much institutional damage.

Sessions’s only real contribution to justice, due process, and the public good was the day he walked out of the U.S. Department of Justice for the last time. But, it will take years, if not generations, to repair the damage he has inflicted on the rule of law, our Constitution, honest government, and humane values.

Truly, Liz was right! This was one supremely unqualified dude!

PWS

02-16-19

“SIMPLY BRILLIANT” — Retired U.S. Immigration Judge Carol King Tells Us All We Need To Know About The Deplorable State Of EOIR & Practice In The Largely “Due Process Free” Zone Of Today’s Immigration Courts In Her Keynote Address To The AILA Northwest Regional Immigration Law Conference!

KEYNOTE SPEECH

I.
KEYNOTE: AILA NORTHWEST REGIONAL IMMIGRATION LAW CONFERENCE February 14, 2019
Seattle, Washington
PRACTICING IN PERILOUS TIMES
INTRODUCTION: Practicing in Perilous Times a.What does it mean to be PRACTICING IN
PERILOUS TIMES? Is this time really so
different? b.ALWAYS:
i. You have ALWAYS worked with the most vulnerable clients
ii.You have ALWAYS taken in stories of trauma, persecution and grief in the normal course of your work
iii.You have ALWAYS had an uphill battle obtaining the relief to which your clients are entitled, because you operate in a system that is broken and often oblivious to their suffering.
c.YOU PERSISTED:
i. But you PERSISTED on behalf of your
clients because you had the skills and the courage to fight those battles on a relatively consistent, if not level, playing field.
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ii.You PERSISTED because you had for inspiration the resilience and courage and dreams of your immigrant clients
iii.You PERSISTED because, maybe not as often as you’d like, but at least occasionally, you had the satisfaction of helping someone achieve a second chance in life – a chance to start over in the country they chose as home, to work and contribute in their chosen manner, to be with their families, to enjoy a life free of persecution or torture or crushing poverty.
d.NOW
i. NOW the playing field tilts more
drastically every day and the battles are so bloody and so mean-spirited and the results so frequently demoralizing and unfair and lacking in due process, that it has become really difficult to carry on, to keep on persisting.
ii.NOW you’re not only experiencing stories of past trauma, but you are witnessing, in real time, the traumatization of your clients as this administration literally terrorizes them with its rhetoric and actions.
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iii.NOW you see decades of hard-won development of protections for your clients swept away in a single day and with a single pen stroke.
iv.In my more than 30 years both practicing as an immigration attorney and sitting as an immigration judge, I don’t believe there has been a more difficult or perilous time to practice in this area.
1.What you are all doing at this time in history is really, really difficult
2.It takes an inordinate amount of dedication, courage and vision.
3.I am in awe of each and every one of you.
II. IMMIGRATION COURT UPDATE a.I’ve been asked to give today an
IMMIGRATION COURT UPDATE.
i. That’s a bit of a difficult task, since
you are the experts on what you’re seeing every day in court, and since I have been off the bench and somewhat “out of the inside loop” for two years, and much has occurred since then. Despite that, I’m going to venture an opinion, and that is that the Immigration Court system itself is also
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in serious peril, as is its ability to provide due process of law to those who appear before it.
ii.I want to focus on a few issues that I think are extremely important to protecting due process in our court system.
b.ADMINISTRATIVE ISSUES resulting in a Crushing caseload: The Immigration Court has been functioning under a crushing caseload and with entirely inadequate resources for as long as I worked there.
i. That caseload is now growing exponentially for a variety of reasons (the last statistic I heard was that, on average, individual Immigration Judges have a pending caseload of over 2500 cases). What are some of the reasons for this exponential growth?:
1.Priorities: This administration has absolutely refused to set any kind of meaningful priorities for prosecution of cases. The policy is to prosecute every issue in every possible case to the max. There is no recognition that limitations on resources require prosecutorial discretion.
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2.Erosion of case management tools:
a.The current management of EOIR has eroded the case management tools that in the past allowed judges to juggle a massive caseload and prioritize the cases that were ripe for adjudication. First, administrative closure was taken away by AG Sessions, with a suggestion that such situations could be dealt with by continuances. Then, once that was in place, EOIR openly discouraged continuances, requiring judges to issue a long- form written decision justifying each granted continuance. No such decision is required to deny a continuance. In addition to eliminating essential tools for managing a massive caseload, incentivizing a particular outcome in decision-making undermines the independence of the court and due process
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and has no place in a court
system!
3.Aftermath of Gov’t Shut Down:
a. My contacts are with the SF
Immigration Court, not Seattle, but I think some generalizations can be made: First, there was ZERO GUIDANCE from EOIR management on how to deal with the specifics of the shut-down. Thus, each court administrator decided how to deal with, for instance, filings during the shut down, and the resetting of cases.
b.In San Francisco, all mail was opened and date stamped, then set for a 10 day call up to begin the day the government reopened. They received 10,000 filings during the 5 week shutdown. None of them could be entered into the system. They all came up for call up on Feb 7, 2019.
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Thus, the SF court, which is one of the most efficient and well-run courts, is overwhelmed still by the remnants of the shut down.
c. In addition, when the SF Court Administrator asked EOIR for a 3 day “recovery period” after the shutdown, the request was denied and they were told that all courtrooms had to be in full swing as of the morning of the first day the government reopened. ACCs did not have their files, court files had not been pulled for Master Calendar and Individual Calendar hearings. At that point 10,000 filings, including those filed before the two week filing deadline for cases scheduled that morning, were in a pile waiting to be entered into the court
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system and were
inaccessible to the judges. d.The only support offered
from EOIR was unlimited overtime for staff, so some staff has now been consistently working 20 hours a week overtime to try to catch up on the aftermath of the shutdown.
e.As an example of the delays engendered by the shutdown, in San Francisco 67 full Master Calendars had to be cancelled. As new cases pour in and add to the backlog, all these cases have to be reset to new Master Calendars, not to mention hundreds of individual cases which must now be reset.
4.Severe shortage in resources: As always, the Immigration Court is operating under a severe shortage of resources. As an example, in San Francisco, by this summer they will have a full complement of 27
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Judges and all courtrooms will be full, but the court is already down 30 Legal Assistants from what they should have and all Legal Assistants are carrying 2 judges’ caseloads, a nearly impossible task even in a short-term emergency situation. Because Legal Assistant hiring falls far behind even IJ hiring, by summer all the Legal Assistants will have to carry 3 judges’ caseloads.
c.LEGAL AND INDEPENDENCE ISSUES
i. I talked about incentivizing denying
continuances. But there are even more direct ways in which this administration has undermined the independence of the Immigration Court. When the Attorney General of the United States goes to a conference of Immigration Judges and specifically tells judges that entire categories of asylum cases should “generally” be denied (as AG Sessions did in the summer of 2018), this is a direct and blatant attack on the decisional independence of the Immigration Judges.
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ii.Matter of A-B- was only one in a series of decisions in which the current Department of Justice is inappropriately using the AG Certification Process in an attempt to roll back decades of painstaking development of the law, developments which had finally brought us into closer compliance with our international obligations to protect true refugees. This tactic has gone hand in hand with vicious attacks on immigrants in the press and disregard of their true motives for coming to the United States.
iii.Add to all of this the jurisdictional issues raised by the Supreme Court in Pereira v. Sessions and the Immigration Court system is in severe peril. It seems to me extremely clear that the legal conclusion in that case compels a finding that the vast majority of Notices to Appear filed with the court during the entire time I have been involved in immigration law are invalid and incapable of conferring jurisdiction on the Immigration Court. As I’m sure you know, a panel of the 9th Circuit
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recently held otherwise, but with very shaky reasoning. If eventually all these NTA’s are declared invalid, I have grave concerns for the impact that will have on the Immigration Court system, and even on tens of thousands of immigrants who have been granted relief by Immigration Courts over the last 40 years.
iv.The final perilous factor I want to talk about today is the pressure on judges to complete an overwhelming number of cases in a very short period of time, probably the most dangerous threat to due process of all.
1.Immigration Judges have, for the first time, been mandated to complete 700 cases per year. In the past we had “aspirational goals” to complete certain cases by a certain time, and that in and of itself, created a lot of pressure and fear among judges.
2.But now, not only have the case completion goals become mandatory, they have been tied to the Immigration Judge’s Performance Evaluations. If you
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look at the ABA’s guidelines for evaluation of judges, you will see that completing a particular number of cases is absolutely inappropriate as a factor to evaluate judges. Judges are evaluated by their peers and party/ stakeholders on criteria such as legal reasoning ability; knowledge of the law; knowledge of rules of procedure and evidence; keeping up on current developments; Integrity and Impartiality; communication skills; professionalism and temperament; administrative capacity (including managing a docket efficiently and effectively) – while this includes promptness in deciding cases, the commentary makes clear that these are aspirational goals, that some factors affecting promptness of decisions may be outside the judges’ control and that the purpose of such an evaluation is primarily for the individual improvement of each judge and
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should never be tied to
disciplinary action.
3.Now we have a situation in the Immigration Court in which the judges’ continued employment depends on their ability to keep up with an artificial and unrealistic case completion mandate, which requires the completion of approximately three full hearings a day, leaving complex asylum and cancellation hearings lucky to be scheduled for 90 minutes, where such hearings used to be scheduled for a full morning or afternoon, and might take even more than one such session.
4.This is something that requires vigilance by all of us. Knowing that the judges are under an incredible amount of pressure, and even sympathizing with that situation (please do!), does not relieve us of zealously representing our clients. What does that mean in this milieu? It means being super prepared. It means being super efficient in the presentation of your cases. It
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means trying to work out stipulations with ICE counsel as to issues, admissibility of evidence, the need for cross examination (anything you can think of to make the hearing go faster for the judge), it means briefing every or almost every case and making sure all arguments are addressed in writing in case time is not given for closing arguments or opening statements. And then, after you have done the most thorough, efficient, and complete job you can at presenting your case, if the time given is not sufficient and the judge is cutting off the presentation of the case, it means standing up on the record and using the words “denial of due process”.
III. CONCLUSION:
a.What does all this mean as we struggle to
deal with the peril in which we find ourselves?
i. As a community, we must continue to advocate for a more independent
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court, one which exists outside of any prosecutorial agency such as the DOJ.
1.For years we had mostly small incursions into decisional independence, most often when EOIR management made what they believed to be an “administrative” decision which inadvertently encroached on decisional independence
2.But, as judges, we saw the potential and feared that more intentional and direct incursions could be made under the current system. Therefore, at peril to our own jobs, we chose to advocate for an independent court under Article 1 of the United States Constitution. Since then, the Federal Bar Association, AILA and others have joined us in this call.
3.We are now seeing the types of direct and intentional attacks on the independence of the Immigration Judges that we mostly only feared before. Therefore, we must redouble our efforts to attain
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independent status for the
Immigration Court.
ii.As individuals, as I said in the
beginning, we are facing truly perilous times, and we can’t underestimate the impact that has on our health, our ability to stay in the work for the long term, and our competence as attorneys.
1.It bears saying that, in such perilous times, it is terribly easy to feel that there is no time to rest, no time to take a break, spend time with family, engage in self- care such as meditation or exercise or dancing or surfing or whatever floats your boat and helps you renew your stamina. It’s so easy to feel that our clients are suffering so badly that we ourselves have no right or ability to rest.
2.A young lawyer said to me recently, “We start out in this work feeling like warriors; but we wind up barely hanging on.” That got me thinking what it would mean to approach our work with the heart
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of a warrior. The characteristics of warriors are:
a.Persistence: not accepting what seems to be inevitable. We didn’t accept it when years of “settled law” seemed to preclude effective use of Particular Social Group in asylum cases, and we must not accept either when the AG “grabs” cases in order to undermine decades of patient and attentive legal development, as he did in Matter of A-B-. Likewise, we must not accept having our cases rushed beyond all semblance of due process.
b.Preparation: Warriors prepare themselves for battle – as we are doing now, and do regularly, by educating ourselves, learning from each other, strategizing and skills training. As warriors, we also prepare our cases as well as ourselves, and do so zealously and to the best of our ability.
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c.Dedication: As warriors, we must consistently ask ourselves – does this work bring me joy? If not, you will not be able to fully dedicate yourself to it for the long term. Because we believe in the work we are doing and the people we are representing, we WANT to give of ourselves 110%. But what does that mean? As part of her preparation for battle, a warrior prepares herself by taking care of body and soul.
I propose to you that in these perilous times, self-care becomes even more essential than it ordinarily is. It HAS to figure in to the 110% that you are giving! Our brains and bodies break down if we remain consistently in fight or flight mode and that effects not only our own happiness and health, but our ability to represent our clients competently and intelligently over a long period of time. Don’t put off this
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aspect of your role as a warrior for your clients. Please don’t wait, as I did, until you are too fundamentally exhausted to implement a self-care plan.
d.Do it now, do it for yourselves, do it for your family, do it for your current and future clients.
3.Thank you
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Thank you, Carol. Proud to be your colleague in “Our Gang!”

PWS

02-15-19

HEIDI ALTMAN @ HEARTLAND ALLIANCE: How EOIR & Other Trump Toadies Lie & Distort “Statistics” To Support A White Nationalist Immigration Agenda!

https://immigrantjustice.org/sites/default/files/content-type/research-item/documents/2019-01/NIJC-Policy-Brief_Trump-Data-Manipulation_Jan2019.pdf

The Trump Administration’s Manipulation of Data to Perpetuate Anti-Immigrant Policies

The Trump administration regularly manipulates data to support its anti-immigrant agenda. Two weeks after President Trump shut down the federal government because Congress refused to approve funding to build a wall on the southern border, Homeland Security Secretary Kirstjen Nielsen presented a slideshow to the president’s Cabinet that was widely publicized for relying on inaccurate and heavily inflated numbers to create a sense of crisis in the border region.1 But it has long been a tried and true strategy for this administration’s agencies and government officials to misrepresent facts and figures and implement policy changes intentionally developed to gin up data points that prove a pre-established nativist narrative.

This policy brief describes how the administration has corrupted immigration data to fuel its anti- immigrant policy agenda. Particularly alarming examples include its manipulation of information and data to (I) undermine access to asylum; (II) exacerbate the due process crisis in the immigration courts; and (III) escalate the criminalization of migrants.

I. Crippling Asylum Access, then Touting Low Approval Rates

as Evidence of Fraud

The Trump administration made it nearly impossible for many people to get asylum, and now cites low grant rates to claim there are no legitimate asylum seekers.

The administration’s campaign to close the
border to asylum seekers began almost on
day one. President Trump’s February 2017
Executive Order on border security called for
higher standards for screening asylum
seekers’ fear of return.2 At the border,
Customs and Border Protection (CBP) has
intentionally reduced the processing of
asylum seekers at ports of entry3 and
doubled down on a so-called “metering”
system that numerically limits the number of
asylum seekers processed.4 Within the
immigration court system, Department of
Justice (DOJ) leadership has upended
longstanding case law to make it even more
difficult for survivors of gang-related and domestic violence to establish eligibility for asylum.5Unsurprisingly, these policies have shut off asylum protections for many applicants in need:

January 2019 immigrantjustice.org

under the Trump administration, denial rates for asylum applicants rose from 54.6 percent in fiscal year (FY) 2016 to 60.2 percent in FY 2017 and to 65 percent in FY 2018.6

The president and his Cabinet officials, after imposing such arbitrary obstacles to asylum, now claim that the resulting low asylum grant rates mean that most asylum seekers are here to “game the system,” as Acting Attorney General Matthew Whitaker recently stated after asserting that “only 20 percent of aliens have been granted asylum after a hearing before an immigration judge.”7 In his presidential proclamation attempting to ban certain migrants from asylum eligibility, President Trump stated that “only a fraction” of claimants at the southern border “ultimately qualify for asylum.”8

The fault in the president’s logic is so simple it’s easy to miss: the Trump administration made it nearly impossible for even the most bona fide refugee to obtain asylum, and now claims that applicants’ failures to win protection proves they filed applications for nefarious reasons. The administration is cynically using its own cruel policies to create facts designed to further more cruelty.

II. Distorting Immigration Court Representation and Appearance Data

The administration downplays the access to counsel crisis in our nation’s immigration courts, especially for children, and lies about the prevalence of non-appearance rates in immigration court.

Trump’s appointed officials frequently mislead Congress through incomplete and conflated data that obfuscates the due process crisis playing out every day in U.S. immigration courts. Most frequently, these misrepresentations downplay the critical importance of legal representation in immigration court proceedings and falsely suggest that the majority of immigrants do not appear for their scheduled immigration court hearings.

The DOJ Executive Office for Immigration Review’s (EOIR) own data shows that at least 60 percent of immigrant families in deportation proceedings appear for hearings, a statistic that rockets up to 98 percent when families are represented by counsel who can help them understand the court process.9 Among unaccompanied children, 67.6 percent overall and over 95 percent of minors with legal representation appear for their hearings.10

But in one recent hearing before the Senate Permanent Subcommittee on Investigations of the Homeland Security and Governmental Affairs Committee, EOIR Director James McHenry put forward several problematic representations of immigration statistics that

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subverted this reality.11 At one point, McHenry cited statistics from a program whose scope is limited to providing children’s parents or sponsors a basic legal orientation to argue that providing full legal representation is ineffective in ensuring children’s appearance in court.12During the same hearing, McHenry also blatantly misrepresented court appearance data, testifying without evidence that children in immigration court proceedings appear in court only 53 percent of the time.13

The president’s mischaracterization of this data has been even further removed from reality, including unsubstantiated claims that immigrants “never show up [to court], it’s like a level of 3 percent. They never show up for the trial.”14

Obfuscation about representation and appearance rates in immigration court is particularly harmful given how powerfully the deck is already stacked against immigrants in deportation proceedings. Although U.S. Immigration and Customs Enforcement (ICE) is represented in each proceeding by its own federal counsel, there is no right to counsel for indigent immigrants who cannot afford private representation. Nationally, only 37 percent of all immigrants and only 14 percent of detained immigrants are represented in their immigration court proceedings.15Representation is a particularly critical due process safeguard in immigration court, where people face life-altering consequences and need an expert in the law by their side to ensure they understand how to comply with complex court processes.16 Immigrants with attorneys are five times more likely to win their cases than those without attorneys.17 For detained immigrants, it can be nearly impossible to even present a case without counsel; those with attorneys are 11 times more likely to be able to seek a defense to deportation.18

III. Increasing Prosecutions to Inflate the Number of So-Called

“Criminal” Immigrants

The administration employs both the criminal justice and deportation systems to target immigrants, using its discretion to increase already sky-high prosecutions of immigrants and subsequently touting increased convictions to demonize immigrants.

The Trump administration is quite literally creating its own crime statistics by making it impossible for asylum seekers to present lawfully at ports and then choosing to prosecute as many people as possible for crossing the border elsewhere to request protection. In April 2017, the DOJ announced it would prioritize the prosecution of migration-related offenses,19a jarring announcement in light of the fact that migration-related prosecutions already constituted more than half of all federal prosecutions when the Trump administration took office.20 A year later, DOJ established a

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“zero-tolerance” policy, whereby U.S. Attorneys Offices at the southwest border were instructed to prosecute all migrants entering between ports of entry under 8 U.S.C. § 1325, improper entry.21

Zero tolerance led to a spike of prosecutions along the southwest border, with a 30 percent increase from the month prior to the announcement of the policy.22 As Acting Attorney General Matthew Whitaker recently noted, in FY 2018, DOJ charged 85 percent more immigrants with unlawful entry than in FY 2017, and increased felony reentry prosecutions by over 38 percent.23Fueling the zero-tolerance policy was the administration’s concerted blockading of the southern border through illegal turnbacks and so-called “metering” of asylum seekers at ports of entry, both still ongoing, forcing many asylum seekers desperate to reach the safety of the United States to attempt to enter between ports.24

The administration utilizes the statistics resulting from these policies to conflate notions of criminality and immigration status in its policy and rhetoric. ICE routinely touts the high percentage of immigration-related criminal arrests and deportations that involve immigrants who enter outside a port of entry, yet increasingly these statistics reveal the extent to which the administration is cooking the books by driving up the rates of migration-related offenses. Most recently, in ICE’s FY 2018 data release, the agency specifically highlighted arrests of immigrants by “Criminality,” arguing that “the largest percentage of aliens arrested by ICE are convicted criminals (66 percent).” Of the categories of underlying criminal conduct, however, immigration-related offenses ranked as third with 51,249 immigrants.25 Similarly, CBP highlights immigrants convicted of both entry and reentry offenses, with statistics as of August 2018 demonstrating they were the leading type of convictions for so-called “criminal aliens,” representing 41 percent in FY 2017 and 47 percent of all convictions in the first eight months of FY 2018.26 While the administration frames these statistics to argue that migrants have become a greater threat, the story they really tell is of a federal agency that has become obsessed with punishing people for crossing the border.

Conclusion

The use of official government resources to paint groups of people as undesirable or criminal mirrors strategies employed by authoritarian regimes throughout world history who have sought to consolidate power, effectuate anti-democratic agendas, and provide a pretext for persecution. During World War II, the Nazi regime published a list of supposed crimes committed by the Jewish population.27 Russia’s current authoritarian regime regularly employs the criminal justice system to prosecute and convict LGBTQ individuals.28 Scapegoating minorities is one of the time-tested tools for dictators.29

Through data manipulation, the Trump administration is deftly employing the various levers of government to implement inherently flawed policy that criminalizes immigrants, subsequently touting that criminalization to vilify them. Collaterally, the administration manipulates or misrepresents data to impugn immigrants and their families as criminals who are undeserving of protection. The endgame is apparent—to build a foundation to enact policies that erode due process, increase incarceration of communities of color, and strip legal protections from immigrants. Congress and other stakeholders must hold this administration accountable and

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ensure that its anti-immigrant policies are not justified through the use of data or policy inherently designed to undermine basic human and civil rights.

Acknowledgments

This policy brief was authored by Jose Magaña-Salgado for the National Immigrant Justice Center. NIJC’s Heidi Altman and Tara Tidwell Cullen contributed to the report.

For questions, contact NIJC Director of Policy Heidi Altman at (312) 718-5021 orhaltman@heartlandalliance.org.

Endnotes

1 Philip Bump, “The administration is using heavily inflated numbers to argue for a border wall,” Washington Post, Jan. 4, 2019, https://www.washingtonpost.com/politics/2019/01/04/administration-is-using-heavily-inflated-numbers- argue-border-wall/?utm_term=.c72735337b9c.
2 Border Security and Immigration Enforcement Improvements, Exec. Order No. 13,767, 82 Fed. Reg. 8793, Jan. 25, 2017, https://www.federalregister.gov/documents/2017/01/30/2017-02095/border-security-and-immigration- enforcement-improvements.
3 Hamed Aleaziz, “The Trump Administration is Slowing the Asylum Process to Discourage Applicants, an Official Told Congress,” BuzzFeed, Dec. 17, 2018, https://www.buzzfeednews.com/article/hamedaleaziz/the-trump- administration-is-slowing-the-asylum-process-to.
4 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
5 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), https://www.justice.gov/eoir/page/file/1070866/download. This opinion is currently subject to litigation, with a preliminary, nationwide injunction in place as of December of 2018. Lauren Pearle, “Judge blocks Trump administration efforts to restrict asylum for migrants fleeing domestic and gang violence,” ABC News, Dec. 20, 2018, https://abcnews.go.com/Politics/judge-blocks-trump-administration-efforts- restrict-asylum-migrants/story?id=59913629; Grace, et al., v. Whitaker, No. 18-CV-01853 EGS (D.D.C. Dec. 19, 2018), available at https://www.aclu.org/legal-document/grace-v-whitaker-opinion. See also Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), https://www.justice.gov/eoir/page/file/1040936/download (undermining the right to an evidentiary hearing for asylum applicants).
6 TRAC Immigration, Asylum Decisions and Denials Jump in 2018, Nov. 29, 2018,http://trac.syr.edu/immigration/reports/539/.
7 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration. Asylum denials often have life and death consequences for individuals, with deported asylum seekers facing persecution and even death in their home countries. See Jaya Ramji-Nogales , Andrew I. Schoenholtz and Philip G. Schrag, Refugee Roulette, Disparities in Asylum Adjudication and Proposals for Reform, 2009; Sarah Stillman, “When Deportation is a Death Sentence,” The New Yorker, Jan. 15, 2018, https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a- death-sentence (documenting the harms awaiting immigrants deported back to their home countries, including violent deaths).
8 Proclamation No. 9822, 83 Fed. Reg. 57,661, Nov. 15, 2018,https://www.federalregister.gov/documents/2018/11/15/2018-25117/addressing-mass-migration-through-the- southern-border-of-the-united-states.
9 Human Rights First, Myth v. Fact: Immigrant Families’ Appearance Rates in Immigration Court, July 31, 2016,https://www.humanrightsfirst.org/resource/myth-vs-fact-immigrant-families-appearance-rates-immigration-court.
10 American Immigration Council, Children in Immigration Court: Over 95 Percent Represented by an Attorney Appear in Court, May 16, 2016, https://www.americanimmigrationcouncil.org/research/children-immigration-court-over-95- percent-represented-attorney-appear-court.
11 Permanent Subcommittee on Investigations, Homeland Security & Governmental Affairs Committee, U.S. Senate,Oversight of Efforts to Protect Unaccompanied Alien Children from Human Trafficking and Abuse, Aug. 16, 2018,https://www.hsgac.senate.gov/subcommittees/investigations/hearings/oversight-of-efforts-to-protect-unaccompanied- alien-children-from-human-trafficking-and-abuse.

12 Id. (exchange begins at 1:36:40). In this same hearing, Director McHenry also cited an EOIR-produced statistic that the “representation rate for UACs [unaccompanied immigrant children] in proceedings . . . whose proceedings have been pending for over a year is already 75 percent.” By focusing on representation for unaccompanied minors with cases pending for a year or more, Director McHenry excluded representation rates for cases completed in less than a year, namely cases where a judge ordered a minor deported in absentia (e.g. without the minor’s presence in the court) precisely because the minor did not have representation. See Denied a Day in Court: The Government’s Use of In Absentia Removal Orders Against Families Seeking Asylum 15, Catholic Legal Immigration Network, Inc. and the Asylum Seeker Advocacy Project, 2018, https://cliniclegal.org/sites/default/files/Denied-a-Day-in-Court.pdf. Looking at impartial data regarding representation rates provides a more sobering picture; as of November 2018, only 48 percent of unaccompanied minors had representation, regardless of how long their case had been pending. See Juveniles — Immigration Court Deportation Proceedings, TRAC Immigration, Nov. 2018,http://trac.syr.edu/phptools/immigration/juvenile.

13 McHenry Testimony, supra note 11, at 1:47:10.
14 Linda Qiu, “Trump’s Falsehood-Laden Speech on Immigration,” The New York Times, Nov. 1, 2018,https://www.nytimes.com/2018/11/01/us/politics/fact-check-trump-immigration-.html.
15 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016, https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.
16 Id.
17 Id.
18 Id.
19 Office of the U.S. Attorney General, Memorandum for all Federal Prosecutors, “Renewed Commitment to Criminal Immigration Enforcement,” Apr. 11, 2017, https://www.justice.gov/opa/press-release/file/956841/download.
20 TRAC Immigration, Immigration Prosecutions for December 2016, June 4, 2018,http://trac.syr.edu/tracreports/bulletins/immigration/monthlydec16/fil/; Cristobal Ramon, Federal Prosecutions of Illegal Immigrants, Bipartisan Policy Center, Mar. 27, 2018, https://bipartisanpolicy.org/blog/the-prosecution-pipeline/.
21 Office of the U.S. Attorney General, Memorandum for Federal Prosecutors along Southwest Border, “Zero- Tolerance for Offenses Under 8 U.S.C. § 1325(a),” Apr. 6, 2018, https://www.justice.gov/opa/press- release/file/1049751/download.
22 TRAC Immigration, Criminal Prosecutions for Illegal Border Crossers Jump Sharply in April, June 4, 2018,http://trac.syr.edu/immigration/reports/515/.
23 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration.
24 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
25 U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, Fiscal Year 2018 ICE Enforcement and Removal Operations Report , Dec. 14, 2018,https://www.ice.gov/doclib/about/offices/ero/pdf/eroFY2018Report.pdf.
26 U.S. Customs and Border Protection, U.S. Department of Homeland Security, Criminal Alien Statistics – FY 2018(Oct. 23, 2018), https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-alien-statistics.
27 Amanda Erickson, “Adolf Hitler also published a list of crimes committed by groups he didn’t like,” The Washington Post, Mar. 2, 2017, https://www.washingtonpost.com/news/worldviews/wp/2017/03/02/adolf-hitler-also-published-a- list-of-crimes-committed-by-groups-he-didnt-like/ (“There’s a reason Trump’s opponents are so worried. This strategy — one designed to single out a particular group of people, suggesting that there’s something particularly sinister about how they behave — was employed to great effect by Adolf Hitler and his allies. In the 1930s, the Nazis used a similar tactic to stir up anger and hatred toward Jews.”).
28 The Council for Global Equality, The Facts on LGBT Rights in Russia, accessed Jan. 2, 2019,www.globalequality.org/component/content/article/1-in-the-news/186-the-facts-on-lgbt-rights-in-russia.
29 Bruce Bueno de Mesquita and Alastair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics, 2012.

Images from The Noun Project. Credits: Robbe de Clerck, Adrien Coquet, Luis Prado, and SBTS

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It’s time for some House Oversight of the ridiculous mess at EOIR and the lies, fabrications, and intentional distortions that support the restrictionist enforcement agenda of what once purported to be a “court system” but now is a “CINO” (“Court in Name Only”) — an unapologetic adjunct of DHS Enforcement (their “partner” according to the now departed Sessions). Amazingly, it’s actually much worse than the dysfunction that led to the removal of the Immigration Courts from the “Legacy INS’ and establishment of a supposedly “independent” EOIR within DOJ in the first place, in 1983.

Then, I don’t think INS was intentionally falsifying anything or carrying out a political agenda in the Immigration Courts. Honestly, the “Legacy INS’ was simply ethically and administratively incompetent to run a due process court system.

But, to the credit of all involved during the Reagan Administration, including then Commissioner Al Nelson and General Counsel “Iron Mike” Inman, we recognized the problem and acted to solve it. We also saw that a “level playing field” and a more independent Immigration Court would gain credibility with the Article III courts, which would benefit INS enforcement. We even got then Associate Attorney General Rudy Giuliani to endorse the “divestiture program.”

Although the first Director of EOIR, David Milhollan, who was also the BIA Chair, and the first Chief Immigration, Judge William R. Robie, were both stalwart Republicans, neither brooked interference from “Main Justice” with their operations. They were particularly proud and assertive of their independence from INS. Indeed “we’re not INS” became the “mantra” of the “early EOIR.”

Milhollan, having moved EOIR Headquarters across the river to Falls Church, VA more or less hoped that at some point DOJ would forget that EOIR every existed. He occasionally sent a little “excess money downtown” to ensure that the “Main DOJ” and the Attorney General would have only “kind thoughts” about EOIR and would otherwise leave him alone. Up to a certain point, it worked.

Sadly, for all of its original promise and development during its first two decades, the “EOIR Experiment” has turned out to be a disastrous failure. It’s quite painful for those of us who devoted large chunks of our professional lives and emotionally invested in the effort to make EOIR a “real” court.

The idea that a court system can operate independently and provide fairness, impartiality, and due process within the now thoroughly politicized DOJ is simply a non-starter. It’s basically a “return to the Nixon Administration” which is where I came in, with the hope of “learning the ropes” and eventually being able to help in some small way to create “good government” and a better America.

Unfortunately, a divided Congress and an Administration bent on destroying our Constitution and democratic institutions are unwilling and/or unable to put “Eyore” out of its misery. That means that innocent lives will continue to be wrongfully destroyed and Constitutional Due Process mocked until the next generation can put the “malicious incompetence” of Trumpism behind us and advance our nation and the world to a better, fairer, more realistic and inclusive future. That’s what the “New Due Process Army” is all about!

PWS

02-15-19

JUDICIAL BRAIN DRAIN: As Outlaw Administration Attacks Due Process & Attempts To Institutionalize Xenophobic Bias, Experienced, Conscientious U.S. Immigration Judges Head For The Exits – Abandonment Of Scholarship, Fairness, Commitment To Due Process Threatens Entire U.S. Justice System!

https://www.buzzfeednews.com/article/hamedaleaziz/immigration-policy-judge-resign-trump

Hamed Aleaziz reports for BuzzFeed News:

Being An Immigration Judge Was Their Dream. Under Trump, It Became Untenable.

“It has become so emotionally brutal and exhausting that many people I know are leaving or talking about finding an exit strategy,” said one immigration judge. “Morale has never, ever been lower.”

Hamed AleazizBuzzFeed News Reporter

Reporting From

San Francisco, California

Posted on February 13, 2019, at 6:15 p.m. ET

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Constanza Hevia for BuzzFeed News

Former immigration judge Rebecca Jamil in Fremont, California, on Dec. 28, 2018.

SAN FRANCISCO — Rebecca Jamil was sitting in a nondescript hotel ballroom in suburban Virginia when she realized that her dream job — being an immigration judge — was no longer tenable. It was June 11, 2018, and then–attorney general Jeff Sessions, her boss, was speaking to a room packed with immigration judges, running through his list of usual complaints over what was, in his estimation, a broken asylum system.

Toward the end of the speech, Sessions let slip some big news: He had decided whether domestic abuse and gang victims could be granted asylum in the US. Advocates, attorneys, and judges had been waiting months to see what Sessions, who in his role as attorney general had the power to review cases, would do. After all, it would determine the fate of thousands of asylum-seekers, many fleeing dangerous situations in Central America.

Sessions didn’t reveal to the room the details of his ruling but Jamil, based in San Francisco since she was appointed in 2016, learned later that day that the attorney general had decided to dramatically restrict asylum protections for domestic abuse victims.

“I’d seen the faces of these families,” the 43-year-old judge said. “They weren’t abstractions to me.”

Eric Risberg / AP

Hundreds of people overflow onto the sidewalk in a line snaking around the block outside a US immigration office with numerous courtrooms in San Francisco.

Jamil, a mother of two young daughters, had been shaken by the images and sounds that came as a result of the Trump administration’s policy to separate families at the border. As a judge who oversaw primarily cases of women and children fleeing abuse and dangers abroad, this was the last straw.

Soon after, she stepped down from the court.

“I can’t do this anymore,” she told friends. “I felt that I couldn’t be ‘Rebecca Jamil, representative of the attorney general’ while these things were going on.”

In many ways, her resignation underscores the tenuous position of immigration judges, who are overseen by the attorney general and susceptible to the shifting winds of each administration. To avoid potential conflicts, the union that represents the judges has long called for its court to be an independent body, separate from the Department of Justice.

The Trump administration has undertaken a monumental overhaul of the way immigration judges, which total around 400 across the country, work: placing quotas on the number of cases they should complete every year, ending their ability to indefinitely suspend certain cases, restricting when asylum can be granted, and pouring thousands of previously closed cases back into court dockets.

In the meantime, the case backlog has jumped to more than 800,000 under the administration and wait times have continued to skyrocket to hundreds of days.

The quotas in particular have made judges feel as if they were cogs in a deportation machine, as opposed to neutral arbiters given time to thoughtfully analyze the merits of each case.

“The job has become exceedingly more difficult as the court has veered even farther away from being administered as a court rather than a law enforcement bureaucracy,” said Ashley Tabaddor, an immigration judge who heads the National Association of Immigration Judges, a union representing around 350 judges.

And it’s not just Jamil who has departed because of the massive changes to the court undertaken by the Trump administration, according to observers within the Department of Justice and those on the outside. While some, like Jamil, have resigned, others have retired early in large part because of the policies instituted under Trump, they said.

For those remaining at the immigration court, the mood is bleak.

Justin Sullivan / Getty Images

Attorney General Jeff Sessions speaks during a news conference on Oct. 16, 2018.

“It has become so emotionally brutal and exhausting that many people I know are leaving or talking about finding an exit strategy,” said one immigration judge who declined to be named. “Morale has never, ever been lower.”

Another Justice Department official, who was not authorized to speak on the record, told BuzzFeed News, “It is exhausting when you feel undervalued by the people at the top of your organization, especially when they are motivated by partisanship and have not spent their careers doing the job that you do.”

Tabaddor, the head of the union, said that her group has noticed a higher rate of retirements and resignations than in the past because of the way judges have been treated under Trump.

Some have been bold in their timing. John Richardson, a former immigration judge in Phoenix, stepped down on Sep. 30, 2018 — the day before the administration instituted a quota for the number of cases to be completed by judges.

“The timing of my retirement was a direct result of the draconian policies of the Administration, the relegation of [judges] to the status of ‘action officers’ who deport as many people as possible as soon as possible with only token due process, and blaming [judges] for the immigration crisis caused by decades of neglect and under funding of the Immigration Courts,” he said in a statement to BuzzFeed News.

Another judge who resigned from the bench in September told staff members in a goodbye email, “I know things are getting difficult for you at [the Executive Office for Immigration Review], but I believe all you will ‘ride through the storm’ and ‘come out with a smile.’”

There have long been work challenges for immigration judges, including heavy caseloads and assignments, leading to comparatively high burnout rates. Justice Department officials told BuzzFeed News that concerns over retirements were nothing new.

“In 2015, 2013, and 2011, the National Association of IJs [immigration judges] raised the same concerns. In 2011, the NAIJ said that ‘stress on judges has reached unbearable levels … a large contributing factor to retirement at the earliest possible opportunity,’” said Steven Stafford, a Justice Department spokesperson. “What is actually new is that we are hiring more and more IJs and doing so faster than ever before. Today we have 68.9 percent more IJs than we did in 2010, and that number is only rising.”

According to the agency, from the beginning of fiscal year 2014 through Feb. 12, 2019, 94 immigration judges have retired, separated, or died. More than a third of those judges, 32, have left since Oct. 1, 2017. The agency does not track why judges leave their positions.

To those within the court and others who have recently retired, the situation has worsened to an unprecedented level. Richardson, the former judge in Phoenix, said he would have continued presiding over immigration cases if the status quo had remained.

“Yes, I was 75 years old with over 50 years of honorable federal service with the Department of Defense and the Department of Justice, but had no plans for retirement as long as I was treated with respect, appreciated, and provided adequate support,” he said. “I had 28 years as an IJ and very much enjoyed my job, even with the poor funding and lack of support by Congress and the White House during that 28 years.”

Jeff Chase, a former immigration judge who stepped down years ago and who speaks regularly with others who’ve left the bench, was blunt in his characterization.

“The fastest growth industry is former immigration judges,” Chase said. Those still on the bench have told him, “It’s horrible. Whatever you think it is, it is much, much worse.”

In the meantime, the Trump administration has hired more than 100 judges to not only fill the vacancies of those who’ve retired but to add numbers to the bench. It’s a rehauling of the courts that could “have a drastic impact,” according to Chase.

Many of the judges retiring in recent months are experienced jurists, hired by the Clinton administration in the mid to late ’90s, he said. These judges, Chase said, were more willing to push back on claims made in court by US Immigration and Customs Enforcement or to allow immigrants extended time to make their cases in what could otherwise be a rushed procedure.

In their place, Chase said, are judges hired by the new administration with case completion quotas, a two-year probation period, and a mandate to avoid showing sympathy for the people appearing before them.

“Even if it doesn’t show up on the sheet, just the level of humanity, that makes a huge difference — that’s what this administration is trying to remove from the immigration judge corps,” he said.

Constanza Hevia for BuzzFeed News

Rebecca Jamil holds her immigration judge certificate.

For her part, Jamil wanted to become an immigration judge from the earliest moments of her legal career. After working as a staff attorney at the 9th Circuit US Court of Appeals, she joined the government as a prosecutor with ICE in 2011, where she was able to use discretion to focus deportation efforts on those with serious criminal backgrounds. Under the Trump administration, ICE attorneys have been told that nearly all undocumented immigrants are priorities for deportation.

In 2014, Jamil took a chance to fulfill her dream: She applied to become an immigration judge. It was a 17-month process, full of drawn-out interviews in Washington, DC, but finally, in 2015 she received a phone call informing her that she got the job.

“I thought, and I must have told most people I know, that this is the last job that I would ever have. It’s all I wanted to do,” she said.

Jamil dedicated herself to the exhausting career. She oversaw a docket made up primarily of families and regularly heard cases in which women and children applied for asylum based on abuse that they had experienced by partners and family members abroad.

Day in and day out, Jamil heard intense testimony of physical and sexual violence against women and children.

“You’re sitting in a windowless room and people tell you the very worst parts of their life and you have to decide if it is enough to stay in the US,” she said. “That is very tiring day after day to be the person who makes that decision.”

Then, under the Trump administration, things started to change. In 2018, Sessions instituted a new policy, severely limiting when judges could suspend certain cases. Suddenly, her docket expanded and she wasn’t allowed to decide which cases deserved to remain in court and which didn’t.

Jamil and fellow immigration judges were in attendance at the Virginia conference where Sessions spoke for annual trainings on courtroom procedure. The year before, jurists heard substantive legal updates and trainings on bias in the courtroom.

This version of the training, however, felt different.

“The entire conference was profoundly disturbing. Do things as fast as possible. There was an overarching theme of disbelieving aliens and their claims and how to remove people faster,” Jamil said. “That is not what I saw my job as an immigration judge to be. I was not trained to do that.”

Soon after she returned home, Jamil put in her resignation. Her colleagues fretted, probing her about whether she had considered the type of judge that could fill her spot on the bench and the impact that could have.

She didn’t have an answer, but she knew that she couldn’t do it any longer.

“Family separations; Sessions making his own case law on asylum; when we could continue cases — I could no longer sit below the seal of the Department of Justice and represent the Department of Justice at that point,” Jamil said. “They just chipped away at our authority on a daily basis. It felt like we weren’t really judges. It was frustrating and demoralizing.”

A former colleague, Laura Ramirez, worked for years as an immigration judge in San Francisco. In December, she retired at the earliest date possible, five days after she turned 60.

The changes put in place by the Trump administration, especially the case quotas, and the politicization of her job, became too much to handle.

The loss of judges like Jamil and others could be immeasurable to both immigrants and Department of Homeland Security attorneys, Ramirez said.

“For the system of justice, there’s these highly qualified, fair, thoughtful people who are being squeezed out of the system for political reasons, basically,” she said. “If people like her are squeezed out, it’s a loss to people who appear before her. The system can’t be fair if good people like her are pushed out.”

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Forcing the “best, brightest, and fairest” out. Reinforcing “worst practices.” Enabling judges with well-established records of anti-asylum, nationality-based, and misogynistic bias. Attacking those private attorneys who steadfastly defended legal and Constitutional rights that were being systematically undermined by the Administration. Blaming others for his own incompetence and lack of scholarship. That’s what the “Sessions program” was all about.

The only good news: folks like Judge Jamil, Judge Ramirez, Judge Richardson, and Judge Chase are now part of the ever-growing “Our Gang” of retired Immigraton Judges helping others to fight the injustices and destruction of Due Process being pushed by the Trump Administration and a DOJ that has abandoned its mission in favor of a White Nationalist political agenda. Our voices are being heard in support of the efforts of the “New Due Process Army.”

And, while I doubt that anyone outside of Trump and Miller can match the viscous lies, racism, and knowingly false narratives of Sessions, I wouldn’t expect much improvement under Barr. Barr thought Sessions was “the greatest thing since sliced bread.” That, more than the Mueller investigation, should have caused all Democrats to vote against his confirmation. He’ll just “lose” some of the overtly racist and inflammatory lingo of the White Nationalist restrictionists and attack immigrants on the basis of bogus “strict enforcement” platitudes.

Every American who believes in our Constitution and thinks that America is different from the “Banana Republics” we often criticize will be threatened by this development. Malicious harm to the most vulnerable among us is harm to all; and the collapse of one of the “building blocks” at the “retail level” of the American justice system will adversely affect everybody’s ability to get justice with fairness and impartiality.

Many of us don’t think we will need fair, independent, and impartial courts until we do. Once the Trump Administration destroys them, they won’t easily be rebuilt.

Who will defend your rights when the time comes if you stand by and watch the rights of others being trampled?

PWS

02-14-19

CALL US CRAZY, BUT . . . . THERE ARE SOLUTIONS TO THE IMMIGRATION COURT BACKLOG PROBLEM THAT WILL ENHANCE FAIRNESS & DUE PROCESS WITHOUT BREAKING THE BANK — It Just Requires Some Imagination, Initiative, & An Unswerving Commitment To Putting Due Process & Fairness First — The “Lister-Schmidt Proposal”

CALL US CRAZY, BUT . . . . THERE ARE SOLUTIONS TO THE IMMIGRATION COURT BACKLOG PROBLEM THAT WILL ENHANCE FAIRNESS & DUE PROCESS WITHOUT BREAKING THE BANK — It Just Requires Some Imagination, Initiative, & An Unswerving Commitment To Putting Due Process & Fairness First — The “Lister-Schmidt Proposal”

The other day I got a call from my good friend and UW Law classmate, retired Wisconsin State Judge Tom Lister. The conversation went something like this:

TOM: Schmidt, I’ve been reading about the backlog in your blog — 1.1 million cases! No way it’s going to be solved just by hiring more judges. But, hey, I’m out here living well in retirement, and I’d be happy to help out. And there are hundreds, perhaps thousands of other retired judges throughout the U.S who probably would be willing to pitch in too.

ME: Yeah, sounds nice Tom, but I doubt there is any money in the EOIR budget for hiring retired judges. They once claimed they would bring back some of my retired colleagues, but the program doesn’t seem to have gone anywhere.

TOM: I don’t need a salary. I’m willing to volunteer! Just pay my incidentals.

ME: Well, then there’s this thing called the Anti-Deficiency Act that prevents agencies like DOJ from accepting free services. It would take some kind of statutory waiver . . . .

By that time, I felt that I was retreating into just the type of bureaucratic “yes-buts” or “passive yeses” that I used to hate during my days as a bureaucrat right up until the present.

But, what if Congress created an independent Immigration Court free of the “bureaucratic no-nos” that plague the DOJ bureaucracy? And what if the system were run by actual sitting judges committed to using “teamwork and innovation” to solve problems, institute “best practices,” and aspire to become “the world’s best tribunals” guaranteeing fairness and Due Process for all?”

Maybe we’d have things like this:

SENIOR JUDICIAL DUE PROCESS BRIGADE

Retired judges of all types would be trained and available to assist the Immigration Courts in dealing with “surges,” retirement waves, changes in the law, and other “emergencies” on a volunteer basis.

DIVISION A: RETIRED IMMIGRATION JUDGES

They could be trained to handle all types of immigration cases on a volunteer “as needed” basis. This would be very similar to the Senior Judge Corps used by other Federal Courts.

DIVISION B: RETIRED JUDGES FROM OUTSIDE THE IMMIGRATION BENCH

They could be trained to handle certain types of Immigration Court adjudications that are primarily fact-findings that would require some basic knowledge of immigration law but not the degree of specialized expertise that might be expected of a permanent Immigration Judge. Like “Division A” they would be volunteers, requiring expense reimbursement only.

Obvious candidates for “Division B Judges:”

Cancellation of Removal all types where basic eligibility is uncontested and the only issues are hardship and discretion;
Bonds where there are no statutory eligibility issues;
Adjustments of Status;
“Voluntary Departure Only” cases;
Master Calendars;
Withdrawals and other stipulated cases;
Status Conferences;
In Absentia dockets.

ASYLUM OFFICER MAGISTRATE BRIGADE

Put the Asylum Officers under the Immigration Courts where they can be used for a wide range of adjudications much like U.S. Magistrate Judges. This would include, but not be limited to, asylum, withholding, and CAT cases. Another obvious candidate would be certain Non-Lawful-Permanent Resident Cancellation of Removal cases.

Since the existing USCIS program would be folded in, the expenses of this conversion would be minimal and the possibilities for improving justice, due process, and efficiency limitless!

This is by no means the full extent of what could be done to improve the delivery of justice and fairness in the U.S. Immigration Courts. But, to let the “creative juices and efficiencies flow,” it will require Congress to move the Immigration Courts out of the DOJ and create an independent court where judges are free to work as a team and with “stakeholders” to solve problems, rather than creating new ones or aggravating existing ones.

PWS

02-14-19

TRAC IMMIGRATION: Latest Stats Strongly Suggest That Immigration Court Bond Decisions Are At Best A “Crapshoot,” & At Worst A Farce — Factors Other Than Due Process, Fairness, & Consistent Application Of Transparent Criteria Appear To Control Freedom From So-Called “Civil” Imprisonment Without Conviction!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

The chances of being granted bond at hearings before immigration judges vary markedly by nationality, as do required bond amounts. Court hearing locations also appear to influence bond outcomes even for the same nationality.

Currently less than half of detained immigrants with bond hearings were granted bond – 48 percent during FY 2018, and 43 percent thus far during FY 2019. The median bond amount was $7,500 in FY 2018, and rose to $8,000 during the first two months of FY 2019.

Differences among nationalities are striking. Currently more than three out of every four individuals from India or Nepal, for example, were granted bond, while only between 11 and 15 percent of immigrants from Cuba received a favorable ruling. And those from China were less likely to receive a favorable ruling than are those from India or Nepal.

The median bond for immigrants from the Philippines was just $4,000, while those from Bangladesh were required to post $10,000-$12,000. These and many other findings are based on a detailed analysis of court records covering all of FY 2018 and the first two months of FY 2019 by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. The bond hearing-by-bond hearing records were obtained by TRAC under the Freedom of Information Act from the Executive Office for Immigration Review (EOIR).

A brand new free web query tool now allows the public for the first time to examine in detail the bond experience by hearing location for any nationality. The new app covers outcomes in Immigration Court bond hearings as well as subsequent case dispositions after detained immigrants are granted bond.

To read the full report, go to:

https://trac.syr.edu/immigration/reports/545/

To examine the underlying results for any nationality, go to:

https://trac.syr.edu/phptools/immigration/bond/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through November 2018. For an index to the full list of TRAC’s immigration tools go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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The U.S. Immigration Court System has deep Constitutional Due Process, fundamental fairness, and quality control issues that are being intentionally swept under the carpet by the Trump Administration in an attempt to just “move ’em out, to hell with the law, Constitution, or human rights.” And, while the Article IIIs occasionally step in, they are basically complicit in allowing this parody of justice affecting life and freedom to go on without honest, effective, professional judicial administration and accountability. Don’t get me started on Congress which created and then abandoned this dysfunctional mess that they mindlessly allow to continue in a “death spiral” that threatens to take the integrity of the entire U.S. justice system down with it.

These problems can be solved! But, not as long as politicos in the DOJ are involved and improperly and unethically using the Immigration Courts as an adjunct of ICE Enforcement.

And, remember that ability to be released on bond pending removal proceedings is often “outcome determinative.” Those free on bond can usually get attorneys, prepare and document a case for relief, and have a decent chance of prevailing. Those forced to proceed in DHS detention (a/k/a the “New American Gulag”) are usually “shot like fish in a barrel” — with little chance of understanding, preparing, or presenting a case.

Then, there is the intentionally and inherently coercive effect of detention in the DHS’s substandard, sometimes life threatening, “Gulag.” Detainees too often are treated like statistics rather than human beings with rights. That’s how politicos “jack up” removal statistics. But, it bears little resemblance to Due Process or justice in any independent court system in America.

That’s why we need the “New Due Process Army” fighting every day to make the unkept, now openly disregarded, promise of “guaranteeing fairness and Due Process to all” of those appearing in our Immigration Courts a reality rather than a sick joke!

PWS

02-13-19

HON JEFFREY S. CHASE: Trump’s Disingenuously Named “Migrant Protection Protocols” Are Anti-American – “As the late Arthur Helton wrote more than 25 years ago, ‘A basic measure of a civilized society is the way it treats strangers.’”

https://www.jeffreyschase.com/blog/2019/2/10/wait-in-mexico-policy-access-to-counsel-amp-crime

Feb 10 Wait in Mexico Policy, Access to Counsel, & Crime

A February 1, 2019 article in the L.A. Timesreported that two American attorneys who work for the immigrant rights organization Al Otro Lado, which has sent attorneys to Tijuana to offer advice to Central American refugees seeking to apply for asylum in the U.S., were stopped by Mexican immigration officials while attempting to enter that country. The attorneys were detained and questioned, and eventually denied entry because their passports had been “flagged.” One of the lawyers was actually traveling to Mexico on a family vacation, and was separated from her husband and 7-year-old daughter at the airport and taken to a separate room where she was interrogated. Her crying daughter was eventually allowed to join her; the two were held for 9 hours and forced to sleep on a cold floor without food or water before being sent back to the U.S. Two journalists who had been covering the issue of refugees seeking asylum at the U.S.-Mexico border suffered the same experience. The Mexican government denied responsibility for the “flagging;” one of the journalists was told “the Americans” were responsible.

One of my first reactionsto the remain in Mexico policy was the impact it would have on access to counsel. I have heard disturbing first-hand reports from individuals who have traveled to Tijuana to provide legal assistance to refugees there. When crossing back to the U.S., American citizens identified by Customs and Border Patrol officers as “activists” have been harassed by being sent to secondary inspection, where they have been questioned and, remarkably, have had the contents of their electronic devices accessed by DHS agents. A means of avoiding such treatment was to fly directly to Mexico. However, the reported policy of flagging the passports of attorneys engaged in such work has undermined that route as well. Thus, attorneys are being treated like criminals for the “crime” of doing their job of providing legal assistance to asylum seekers.

While DHS focuses on such imaginary “crime,” it willfully ignores the actual crime to which those asylum seekers forced to wait in Mexico are exposed. In a letterto DHS Secretary Kirsjen M. Nielsen, the American Immigration Council, American Immigration Lawyers Association, and Catholic Legal Immigration Network reported that 90.3% of asylum seekers surveyed said that do not feel safe in Mexico; 46% stated that either themself or their child had suffered harm in Mexico, and 38.1% reported mistreatment at the hands of the Mexican police. Female asylum seekers accompanied by their minor children reported suffering crimes in Mexico including rape, sexual assault, kidnaping, extortion, and death threats.

Keep in mind that the Administration has shamelessly named its wait-in-Mexico policy the “Migrant Protection Protocols.” Instead, the policy exposes asylum seekers (including vulnerable unaccompanied children and families) to crime and police harassment, while restricting their access to counsel.

Access to counsel is increasingly critical to Central American asylum seekers, many of whose claims require proving that their fear is on account of their membership in a particular social group. Where fear is of non-governmental persecutors, applicants must further establish that the government is unable or unwilling to control such actors, and that internal relocation to another part of the country was not reasonable. Meeting these criteria requires an applicant to offer complex legal theories, and to support such claims with affidavits, reports, and articles from one or more experts. Without legal assistance, this is a daunting task for refugees (some of whom are families or children) living under difficult conditions (including the above-mentioned exposure to crime and government harassment) on the Mexico side of the border. Under present BIA precedent, an asylum seeker who is just a little off in formulating their particular social group (even if they included one word too many or too few) is stuck with such formulation, and may not amend it should they be fortunate enough to obtain counsel to assist them with their appeal. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).

The Trump Administration’s policies towards Central American asylum seekers has consistently run counter to our country’s international treaty obligations. The Administration has tried to argue that those fleeing to our country are not truly refugees, falsely painting them (in the words of a Human Rights First release) as “frauds, security threats, and dangerous criminals.”

By undertaking efforts on so many fronts to make it increasingly more difficult for such claimants to succeed in their asylum applications, the Administration seeks to paint the resulting drop in grant rates as “proof” that such claims are “fraudulent.” In criminally prosecuting those who eventually try to cross the border when they are no longer to endure the conditions under which refugees are forced to wait in Mexico, the Administration cites such convictions as “proof” that the refugees are “criminals.” The Administration seems to view the flight to the U.S. as a choice, and believes that its deterrence policies might convince refugees to simply return to their home countries.

Such view is at odds with reality. This December articleby Prof. Karen Musalo in the Yale Journal of Law & Feminismadds further corroboration to the many reports detailing the horrible violence Central American refugees are fleeing. And the World Migration Project at the Columbia Univ. School of Journalism continues to track those who have suffered harm (including death) following their deportation from the U.S.; its findings also counter the Administration’s position that those fleeing are not truly refugees, and that repatriation is a viable option.

As the late Arthur Helton wrote more than 25 years ago, “A basic measure of a civilized society is the way it treats strangers.” Similarly, Jorge Ramosrecently wrote in Timemagazine that “countries are judged by the way they treat the most vulnerable, not the rich and powerful.” Our government’s policies towards asylum seekers (including its most recent efforts to interfere with that population’s ability to retain counsel), and its willingness to expose such a vulnerable population to harm (including murder and rape) shames us all.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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Feb 10 All The World’s A Stage (including the 2d Cir.!)

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As Jeffrey and I have pointed out a number of times before, a “bona fide Administration” could resolve the “self-created non-crisis” at the Southern Border simply by:

Following existing asylum laws;
Generously granting asylum in accordance with the Refugee Act of 1980, the Supreme Court’s decision in INS v. Cardoza-Fonseca, the BIA’s precedent in Matter of Mogharrabi, and the Handbook;
Working with NGOs, pro bono groups, bar associations, “Big Law,” the religious community, and affected states and localities to provide easy access to counsel and achieve universal representation of asylum seekers, which, in turn:
- has a proven strong correlation to court appearances;
- makes most detention unnecessary, and most important,
- safeguards Due Process and the rule of law.

Clearly, these measures could be accomplished more quickly and for far less than the $5.7 billion that Trump so desperately wants to waste on his Wall. And, other than perhaps a few “tweaks” to allow some U.S. Government funding of pro bono and “low bono” representation projects, they would not require a major rewrite of current statues.

By sharply reducing unnecessary and wasteful “civil immigration detention” (a/k/a the “New American Gulag” or “NAG”) and the many legal challenges it generates, the money and litigation time, on both sides, could be redirected at actually solving the problems, rather than making them worse.

PWS

02-11-19

ANOTHER UGLY TRUMP MILESTONE: Administration’s “Malicious Incompetence” Jacks Immigration Court Backlog To 1.1 Million! — Even With 17% Increase In Judges, Trump & Sessions Incredibly DOUBLED Backlog In Under Two Years!

https://trac.syr.edu/immigration/reports/536/

Immigration Court Backlog Surpasses One Million Cases

Figure 1. Immigration Court Workload, FY 2018

The Immigration Court backlog has jumped by 225,846 cases since the end of January 2017 when President Trump took office. This represents an overall growth rate of 49 percent since the beginning of FY 2017. Results compiled from the case-by-case records obtained by TRAC under the Freedom of Information Act (FOIA) from the court reveal that pending cases in the court’s active backlog have now reached 768,257—a new historic high.

In addition, recent decisions by the Attorney General just implemented by the Executive Office for Immigration Review (EOIR) have ballooned the backlog further. With a stroke of a pen, the court removed 330,211 previously completed cases and put them back on the “pending” rolls. These cases were previously administratively closed and had been considered part of the court’s completed caseload[1].

When the pending backlog of cases now on the active docket is added to these newly created pending cases, the total climbs to a whopping 1,098,468 cases! This is more than double the number of cases pending at the beginning of FY 2017.

Pending Cases Represent More Than Five Years of Backlogged Work

What does the pending case backlog mean as a practical matter? Even before the redefinition of cases counted as closed and cases considered pending, the backlog had reached 768,257 cases. With the rise in the number of immigration judges, case closures during FY 2018 rose 3.9 percent over FY 2016 levels, to 215,569. In FY 2017, however, closure rates had fallen below FY 2016 levels, but last year the court recovered this lost ground[2].

At these completion rates, the court would take 3.6 years to clear its backlog under the old definition if it did nothing but work on pending cases. This assumes that all new cases are placed on the back burner until the backlog is finished.

Now, assuming the court aims to schedule hearings eventually on all the newly defined “pending” cases, the backlog of over a million cases would take 5.1 years to work through at the current pace. This figure again assumes that the court sets aside newly arriving cases and concentrates exclusively on the backlog.

Table 1. Overview of Immigration Court Case Workload and Judges
as of end of FY 2018

	Number of Cases/Judges	Percent Change Since Beginning of FY 2017
New Cases for FY 2018	287,741	7.5%
Completed Cases for FY 2018	215,569	3.9%
Number of Immigration Judges	338/395*	17.0%
Pending Cases as of September 30, 2018:
On Active Docket	768,257	48.9%
Not Presently on Active Docket	330,211	na
Total	1,098,468	112.9%

* Immigration Judges on bench at the beginning and at the end of FY 2018; percent based on increase in judges who served full year.
** category did not exist at the beginning of FY 2017.

Why Does the Backlog Continue To Rise?

No single reason accounts for this ballooning backlog. It took years to build and new cases continue to outpace the number of cases completed. This is true even though the ranks of immigration judges since FY 2016 have grown by over 17 percent[3] while court filings during the same period have risen by a more modest 7.5 percent[4].

Clearly the changes the Attorney General has mandated have added to the court’s challenges. For one, the transfer of administratively closed cases to the pending workload makes digging out all the more daunting. At the same time, according to the judges, the new policy that does away with their ability to administratively close cases has reduced their tools for managing their dockets.

There have been other changes. Shifting scheduling priorities produces churning on cases to be heard next. Temporary reassignment and transfer of judges to border courts resulted in additional docket churn. Changing the legal standards to be applied under the Attorney General’s new rulings may also require judicial time to review and implement.

In the end, all these challenges remain and the court’s dockets remain jam-packed. Perhaps when dockets become overcrowded, the very volume of pending cases slows the court’s ability to handle this workload – as when congested highways slow to a crawl.

Footnotes

^[1] The court also recomputed its case completions for the past ten years and removed these from its newly computed completed case counts. Current case closures thus appear to have risen because counts in prior years are suppressed. Further, the extensive judicial resources used in hearing those earlier cases are also disregarded.

^[2] For consistency over time, this comparison is based upon the court’s longstanding definition, which TRAC continues to use, that includes administratively closed cases in each year’s count. Under this standard, numbers are: 207,546 (FY 2016), 204,749 (FY 2017), 215,569 (FY 2018).

^[3] The court reports that the numbers of immigration judges on its rolls at the end of the fiscal year were: 289 (FY 2016), 338 (FY 2017), and 395 (FY 2018). The 17 percent increase only considers judges who were on the payroll for the full FY 2018 year. See Table 1. For more on judge hires see: https://www.justice.gov/eoir/page/file/1104846/download

^[4] New court cases based upon court records as of the end of FY 2018 were: 267,625 (FY 2016), 274,133 (FY 2017), and 287,741 (FY 2018). Due to delays in adding new cases to EOIR’s database, the latest counts may continue to rise when data input is complete. TRAC’s counts use the date of the notice to appear (NTA), rather than the court’s “input date” into its database. While the total number of cases across the FY 2016 – FY 2018 period reported by TRAC and recently published by EOIR are virtually the same, the year-by-year breakdown differs because of the court’s practice of postponing counting a case until it chooses to add them to its docket.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

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This is truly “Kakistocracy in Action.” Remember these numbers are as of the end of FY 2018, September 30, 2018. Trump’s Shutdown added another 80,000 to 100,000 to the backlog. Combined with “normal mismanagement,” the backlog is probably over 1.3 million by now and growing daily.

Unfortunately, this isn’t going to stop until either Congress or the Article III courts step in, put an end to this travesty, and force due process, fairness, and administrative competence back into this dysfunctional national disgrace.

PWS

02-05-19

EFFECTS OF TRUMP SHUTDOWN, “MALICIOUS INCOMPETENCE” CONTINUE TO ROIL U.S. IMMIGRATION COURT SYSTEM, SCREW MIGRANTS WHO FAITHFULLY SHOW UP FOR “FAKE” HEARINGS! – Trump Shut Down USG Over A Bogus “National Immigration Emergency” While Deeming Immigration Courts “Nonessential!” – Would ICE Agents Dare File “Charging Documents” Containing False Information With “Real” U.S. Courts?

https://www.cnn.com/2019/01/31/politics/immigration-court-fake-dates/index.html

By Catherine E. Shoichet, Angela Barajas and Priscilla Alvarez, CNN

Updated 10:15 PM ET, Thu January 31, 2019

Hundreds of people overflow onto the sidewalk in a line snaking around the block outside a U.S. immigration office with numerous courtrooms Thursday, Jan. 31, 2019, in San Francisco. (AP Photo/Eric Risberg)

(CNN)More than 1,000 immigrants showed up at courts across the United States on Thursday for hearings they’d been told were scheduled but didn’t exist, a lawyers’ group said, as the Justice Department struggles with an overloaded immigration court system and the effects of the recently ended partial government shutdown.

Immigration attorneys reported that lines wrapped around the court building in San Francisco, a line stretched for blocks to get into the court in Los Angeles and hundreds of people waited outside the court in Newark, New Jersey.

Thursday’s problems are the latest example of US immigration authorities issuing a large number of inaccurate notices ordering immigrants to appear at hearings that, it later turns out, had never been scheduled.

Lawyers first told CNN last year that they’d observed a wave of what they call “fake dates” pop up. For instance, lawyers reported examples of notices to appear issued for nonexistent dates, such as September 31, and for times of day when courts aren’t open, such as midnight.

“The immigration courts have reached a new crisis point,” said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association. The group said it tracked over 1,000 people showing up in courts Thursday with inaccurate hearing notices.

In Los Angeles, immigrants who had “fake dates” were given paperwork acknowledging they’d appeared at the immigration court, according to attorney Jonathan Vallejo, who provided this redacted copy of one such form.

‘I’m afraid and nervous’

Inside a packed waiting room at the Arlington Immigration Court on Thursday, confused immigrants clutching paperwork asked lawyers for help. Some said they’d driven hours to get to court and had awakened at 3:30 a.m. to arrive on time.

“I’m left with a question mark. I’m wondering, ‘Why?'” said Bigail Alfaro, 39, who’s seeking asylum with her two children. “I’m afraid and nervous.”

RELATED: The government shutdown took its toll on the nation’s immigration courts

As she prepared to head into court for a scheduled hearing, immigration attorney Eileen Blessinger found herself fielding questions and asking court officials to stamp paperwork to provide proof that immigrants had shown up.

“What happened?” one woman asked her.

“You don’t have court, because they made a mistake,” Blessinger said.

At an immigration court in Atlanta, a crowd of around 40 people were turned away, almost one by one, by a Spanish-speaking court employee telling people with notices that their hearings had been “postponed.”

Among those showing up for court were parents with small children, some dressed only with hooded sweatshirts and covering themselves with blankets, with the temperature in Atlanta in the mid-20s.

“They told us they would send us another citation by mail,” said a man named Jose who asked to be identified only by his first name. “But who knows when? And the hard part is they don’t let us know with enough time, enough time to prepare ourselves.”

In Los Angeles, immigration attorney Jonathan Vallejo said he saw 30-40 people ushered into a room where they were told they didn’t have hearings and given forms acknowledging they’d appeared at the court.

“It’s absurd what’s going on,” he said.

RELATED: Trump admin faces two big deadlines on family separation policy

Two lawyers. One court. And their fight against the odds.

Problems were also seen in Dallas, Miami and San Diego, Lynch said.

The Executive Office for Immigration Review, the division of the Justice Department that runs the immigration courts, said the weather and government shutdown were partially to blame.

The office “was unable to proceed with hearings for some respondents who believed they had hearings scheduled,” the Justice Department said in a statement. “In some cases, the cases had been rescheduled to another date, but the lapse in appropriations prevented the immigration courts from issuing new hearing notices far enough in advance of the prior hearing date.”

An ongoing problem

President Donald Trump has repeatedly criticized the nation’s immigration system, specifically taking issue with the practice of releasing immigrants while they await their court dates. To remedy that, his administration has sought to hire more immigration judges in the hopes of unclogging the court.

But that has not happened — there are 409 immigration judges nationwide but nearly 80 vacancies — and the number of cases continues to grow.

For years, the number of pending cases has been slowly creeping up, as more are added to the docket than can be addressed at any given time. There are more than 800,000 cases pending, according to the Syracuse University’s Transactional Records Access Clearinghouse.

Former Attorney General Jeff Sessions also created a quota system that requires judges to clear at least 700 cases a year in order to receive “satisfactory” performance evaluations. Between 2011 and 2016, judges completed 678 cases a year on average.

Judge Ashley Tabaddor, the president of the National Association of Immigration Judges, described judges in Los Angeles coming back this week to boxes filled to the rim with mail that had piled up over the course of the 35-day partial government shutdown.

“What this does is it adds greater delay to the cases. We were shortchanged five or four weeks of time,” Tabaddor told CNN. “Not only were we not able to hear cases that were previously cases that were scheduled, but it’s going to take time to regroup.”

RELATED: US immigration authorities detail so-called return-to-Mexico guidance for migrants

Immigration attorneys say the instances of mistakenly scheduled hearings unfairly burden immigrants and create more pressure on a system that’s already suffering from a crushing backlog.

“Imagine the stress of facing potential deportation,” North Carolina immigration attorney Jeremy McKinney said on Twitter. “You’re told show up in court or be ordered deported in your absence. You drive hundreds of miles & wait in line only to be told the court date was not real. ‘Sorry for the minor logistical errors.’ “

A NOTICE TO APPEAR AT MIDNIGHT (p. 1)

Atlanta immigration attorney Rachel Effron Sharma says this is an example of a notice a client received, ordering the client to report to an immigration court at a time when the court was closed.

View the entire document with DocumentCloud

The US Supreme Court ruled in June that notices to appear — the charging documents that immigration authorities issue to send someone to immigration court who’s accused of being in the United States illegally — must specify the time and place of proceedings in order to be valid.

Immigration and Customs Enforcement spokeswoman Jennifer Elzea said officials have been working to comply with the court’s requirements for notices to appear, but the lapse in funding during the partial government shutdown had delayed those administrative efforts.

“All appropriate parties are working together to solve this issue going forward,” she said.

In its statement Thursday, the Executive Office for Immigration Review said it had issued policy guidance in December and modified its system so the Department of Homeland Security and its components can directly schedule hearings.

The agency said it “does not expect any further recurrence of this type of situation.”

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Yup, and it happened in the “Bay Area” also:

https://www.sfchronicle.com/bayarea/article/Confusion-erupts-as-dozens-show-up-for-fake-13579045.php

Tatiana Sanchez reports for the SF Chronicle:

One woman pulled her daughter out of school to make it to the courthouse on Montgomery Street. Another caught a ride from Fresno. A teenage girl and her ailing mother waited for hours, clutching documents that summoned the mother to Immigration Court Jan. 31.

But none of them got what they came for and expected: a hearing before a judge.

Dozens of people reported Thursday to hearings previously scheduled by the Department of Homeland Security at the federal San Francisco Immigration Court, only to find the appointments didn’t exist.

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Immigration attorneys described similar scenes in Chicago, Atlanta, Virginia, Miami and Texas, where long lines snaked around courthouses for hours.

Federal officials said Thursday’s problems resulted from the government shutdown delaying the process of rescheduling the hearings.

But attorneys representing immigrants called the court dates fake, and said Immigration and Customs Enforcement is sending immigrants notices to appear — charging documents instructing people accused of being in the country illegally to come to court — with court dates it knows are not real.

“Every city in every jurisdiction is doing this, obviously knowing that there really won’t be court on that date,” said Christable Lee, an immigration attorney in San Francisco. “These immigrants are standing with their kids outside with no direction. They’re afraid to stand outside on the sidewalk in front of the courthouse because there could be other immigration authorities there. It’s a really harrowing situation.”

Attorneys say the new practice stems from a U.S. Supreme Court ruling, known as Pereira vs. Sessions that requires notices to appear to include a specific date and time in order to be valid. Previously, immigration authorities could send notices with the date listed as “to be determined.”

A similar situation occurred in several cities nationwide Oct. 31 when dozens of people showed up for court hearings that didn’t exist. Since then, some have reported court dates scheduled on weekends or late at night.

In a prepared statement, ICE denied giving immigrants a fake court date, saying, “Due to the recent partial lapse in government appropriations, the administrative process to resolve this issue was delayed, resulting in an expected overflow of individuals with Notices to Appear listing immigration proceedings on January 31.”

Meanwhile, the Executive Office for Immigration Review, which oversees all immigration courts, said it was “unable to proceed” with hearings for some people who “believed they had hearings scheduled” Thursday.

“In some cases, the cases had been rescheduled to another date, but the lapse in appropriations prevented the immigration courts from issuing new hearing notices far enough in advance of the prior hearing date,” the agency said in a statement. “In other cases, EOIR did not receive the Notice to Appear (NTA) in a timely manner. Immigration proceedings do not commence until the Department of Homeland Security has filed an NTA with an immigration court.”

Attorneys with the American Immigration Lawyers Association said they’ve received more than 1,000 reports of immigrants who had notices to appear in court containing fake dates, though they said it’s extremely difficult to track.

Mothers with small children, families and confused couples clutching manila folders crowded the sidewalk in San Francisco Thursday while others filled nearby coffee shops and restaurants after being told to come back a different day. The news was particularly troubling for immigrants who traveled several hours to get to the courthouse, many relying on relatives and friends for rides.

More than a dozen people waiting outside the courthouse declined to be interviewed but told The Chronicle that staff informed them court wasn’t in session Thursday. Some people who showed up in the morning were asked to come back later in the day, though it’s unclear what happened once they returned.

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As I’ve reported before on “Courtside,” contrary to the myths promoted by Trump, DOJ, and DHS, migrants generally appear for court when they get valid notice with real hearing dates and actually have the system explained to them (usually by an attorney); ironically, it’s often EOIR (“the lovable donkey”) that “Fails to Appear” (“FTA”) with an assist from their “partners in crime” over at ICE.

Would a “real court” let the “cops” run roughshod over them and their dockets as EOIR permits ICE to do? Would a “real President” shut down the Immigration Courts over a wall that will have NO, I repeat NO, “immediate impact” on migration while forcing tens of thousands of “ready to try removal cases” to the end of dockets that already stretch out four or more years in some locations?

Part of the problem is the continuing failure since the Clinton Administration of the DOJ to implement the statutory contempt of court authority granted to the Immigration Judges by Congress approximately two decades ago! A few contempt of court orders directed at ICE Agents and the ICE Chief Counsel who are failing to control their so-called “clients,” or perhaps at Secretary Nielsen herself, would bring these absurd, illegal, time-wasting practices that actually hurt real human beings and sow chaos in our justice system to a screeching halt!

That’s why an independent Article I Immigration Court is an essential priority in fixing our immigration system, including the procedures both for granting asylum and other relief promptly, fairly, and in accordance with due process, and issuing removal orders for those who don’t qualify. The current system does neither, for reasons largely beyond the control of the Immigration Judges (although some judges at both the trial and appellate level bear responsibility for failing to carry out in a fair and unbiased manner, consistent with due process, the generous, humanitarian statutes for the granting of asylum and implementing the legal mandates for other forms of protection from persecution and torture. That’s why a transparent, merit-based selection and reappointment system, with provision for public input is essential to an Article I system).

News from the “Journalism Carousel:” Star immigration reporter Priscilla Alvarez has moved to CNN from her prior birth over at The Atlantic. Congrats to Priscilla and to CNN!

PWS

02-01-19

TRUMP’S IMMIGRATION POLICY: “MALICIOUS INCOMPETENCE!” — Also, ICE Intentionally Falsifies Court Hearing Dates — Where Is The Accountability?

https://www.truthdig.com/articles/incompetence-plus-malice-add-up-to-trumps-losing-formula-on-immigration/

Bill Boyarsky writes for Truthdig:

From the beginning of Donald Trump’s presidential campaign, the immigration issue has defined his political profile. More than anything else, it has opened a window on his authoritarian mind, his disdain for the truth and for democratic institutions. Such contempt has revealed the dangers of Trumpism to much of a nation governed, often imperfectly, by the law. The way immigrants are locked up in detention centers without trial warns us of the possibility of a police state.

Last week, the president’s braggadocio crumbled in the face of facts and the strategic opposition of House Speaker Nancy Pelosi. She clearly saw beyond the façade as she took the measure of her opponent.

Trump’s signature combination of untruthfulness, ignorance and arrogance became evident to the country on Friday when maps appeared on cable television showing planes stacking up at airports, sending passengers into a state of exasperation that transcends partisan politics. Those deficiencies were further exposed when he, while putting an end to the protracted government shutdown, used his concession speech in the White House Rose Garden on Friday to rehash his lying attacks on immigrants.

Trump repeated his call for a wall, arguing that only a wall would stop the drug dealers and other criminals from coming across the southern border. But he pulled back from the “Build the Wall” promises that stirred nationalistic crowds at his rallies. “We do not need 2,000 miles of concrete wall from sea to shiny [sic] sea—we never did,” he said, insisting that he had never proposed one.

On the contrary, as Linda Qiu and Michael Tackett wrote in The New York Times:

Dozens of times during the 2016 campaign, Mr. Trump promised to build a wall along the southwestern border, usually saying it would be 1,000 miles at varying heights and costs. At times the building materials changed. He mentioned concrete, steel and, at one point, even a wall that would have solar panels. But a wall and the unsupported pledge that Mexico would pay for it were foundational elements of his campaign, and Mr. Trump has continued to make similar assertions throughout his presidency.

Except on Friday. Qiu and Tackett also picked up that detail: “ … notable was something Mr. Trump did not say, namely that Mexico would pay for the wall. …”

As he had from the beginning of his presidential campaign, Trump trafficked in falsehoods Friday in the Rose Garden when he described the immigrants trying to cross the border into the United States as dangerous criminals.

Figures from Syracuse University’s Transactional Records Clearinghouse(TRAC), a respected compiler of immigration statistics, refute his claim.

As of June 30, 2018, Immigration and Customs Enforcement had 44,435 immigrants in custody. Of these, four out of five had no criminal record or had committed only a minor offense, such as a traffic violation. Of the remainder, only 16 percent had committed crimes considered serious, which includes selling marijuana, now legal in many states. Of those eventually convicted of a crime, most were for illegal entry into the United States, a misdemeanor.

Another factor to consider is the incompetence of the way Trump administers his anti-immigrant policy. His former Attorney General Jeff Sessions drastically reduced the grounds for immigrants seeking asylum in the United States. Under his plan, dangers posed to immigrants by criminal gangs or domestic violence were no longer accepted as reasons for granting asylum—a devastating legislative blow to those fleeing gang-ridden Central American countries.

Other restrictions on asylum were also imposed. When immigrants present themselves to border officers and ask for sanctuary, they are arrested for illegal entry. They are then placed in detention, awaiting a hearing in immigration court, or are deported, although courts have ordered some released.

Sessions also ordered judges in immigration courts to speed up their hearings and decision-making protocols. He claimed this directive was aimed at reducing the backlog of cases awaiting hearing in immigration court that involve immigrants either in detention or freed through the legal intervention of immigrant advocates.

The backlog, TRAC said, totals 1,098,468—more than double the waiting list in January 2017 when Trump took office. It would take immigration courts more than five years to work their way through the backlog. This explains why so many immigrants are held in detention for years without a trial in onerous conditions, and why those freed from detention are in legal limbo, subject to being stopped, questioned and improperly arrested.

When Trump shut down the government, most immigration hearings were cancelled. That gave the president a lesson in the law of unintended consequences. Rather than carry out his intent—hustling the immigrants out of the country—he has done the opposite and has increased the logjam.

In short, incompetence plus evil intentions have brought the country to this point.

Trump has been able to paper over his incompetence with bluster. The mass media has served as an accomplice. Too many stories focus on his performance. Sometimes, even his critics offer grudging admiration.

The shutdown ripped away the mask. Immigration was the central issue behind Trump’s closure of the federal government. His lies about immigration were exposed, as was his bungling execution of a cruel policy.

Bill Boyarsky

Political Correspondent

Bill Boyarsky is a political correspondent for Truthdig. He is a former lecturer in journalism at the Annenberg School for Communication of the University of Southern California. Boyarsky was city editor of….

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Meanwhile, over at CBS News, Kate Smith continues her great coverage of the illegal and unethical behavior that has become the norm at DHS and which is enable and tolerated by an enfeebled politically dominated EOIR.

ICE agents told hundreds of immigrants to show up to court on Thursday or risk being deported. But lawyers say many of those hearings won’t happen because the dates ICE provided are fake.

Immigration attorneys in Chicago, Miami, Texas, and Virginia told CBS News their clients or their colleagues’ clients were issued a Notice to Appear (NTA) for hearings scheduled Jan. 31. The attorneys learned the dates weren’t real when they called the courts to confirm. ICE is required to include court dates with court notices, per a Supreme Court decision last summer, but most don’t actually reflect scheduled hearings.

The American Immigration Lawyers Association issued a “practice alert” on Tuesday evening, warning members “the next upcoming date on NTAs that appears to be fake is this Thursday.”

On Wednesday evening, the Executive Office of Immigration Review, the body that oversees all the immigration courts, instructed all attorneys with a January 31 NTA “to confirm the time and date of any hearing.”

“There will be another episode of mass confusion in the immigration courts [Thursday] as a result of the DHS’s decision to issue Notice to Appear with fake immigration court dates,” Brian Casson, a Virginia-based immigration attorney, said in an email to CBS News.

In a statement Thursday morning, an ICE spokesperson said the agency was working with the Department of Justice “regarding the proper issuance of Notices to Appear.” The spokesperson said the government shutdown “delayed” that process, “resulting in an expected overflow of individuals appearing for immigration proceedings today/January 31.”

The fake notices stem from a Supreme Court ruling last summer. Prior to the decision, ICE officials used to send immigrants NTAs with date listed as “TBD” – or “to be determined.” The immigration court would issue the migrant an official hearing notice later, said Casson.

One effect of this: The NTAs could block an immigrant’s eligibility for “cancellation of removal,” a legal residency status granted to some undocumented immigrants after 10 uninterrupted years of living in the U.S. A NTA, even without a hearing date, would interrupt the 10-year “clock,” said Jeremy McKinney, a Charlotte, North Carolina-based immigration attorney, in a telephone interview with CBS News.

A Supreme Court ruling last summer — Pereira v. Sessions — banned the practice, requiring all appearance notices to use actual dates.

However, systems weren’t in place for ICE to see the court’s schedule, so ICE issued fake dates instead. Immigrants were instructed to appear on weekends, midnight, and dates that just didn’t exist, like Sept. 31, multiple attorneys told CBS News.

On October 31, hundreds of immigrants received phony NTAs. They showed up to court for non-existent hearings to find “extraordinarily long lines,” according the recent alert from the immigration lawyers’ organization.

“It was complete dysfunction and confusion,” said McKinney.

The problem became so pervasive that on Dec. 21, the Executive Office of Immigration Review issued a rare policy memo telling ICE agents and DHS that courts would “reject any NTA in which the date or time of the scheduled hearing is facially incorrect.”

Matthew Kriezelman, a Chicago-based immigration attorney, has four clients with hearings scheduled for tomorrow. After checking with the court earlier this week, he found out that two of those appearances weren’t real: administrators had no record of the hearings and told Kriezelman his clients would have to wait until the court itself sent them a hearing date.

Kriezelman’s clients are among the lucky ones; experts estimate less than half of immigrants have legal representation. That means hundreds won’t realize their Jan. 31 hearing date was phony and will show up anyway, said Kriezelman.

The court in Chicago handles all the immigration cases in Wisconsin, Illinois and Indiana, meaning many immigrants could be traveling for hours on Thursday morning for a hearing that doesn’t actually exist, Kriezelman said.

When they show up, nobody will be able to assist — because of the extreme cold weather, the Chicago immigration court is scheduled to be closed on Thursday, Kriezelman said.

Failure to show up to an immigration hearing can result in immediate removal proceeding, making immigrant especially wary when they hear they don’t need to come into court after all, said Kriezelman.

“They feel like someone is screwing with them or playing a terrible joke,” Kriezelman said. “It’s really confusing for a lot of people, especially ones that are unrepresented.”

Read more CBS News immigration coverage: The country’s busiest border crossing will allow 20 people to claim asylum a day. They used to take up to 100

These Central Americans have a second chance at asylum after being “unlawfully” deported. First ICE needs to bring them back

Every congressperson along southern border opposes border wall funding

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

Bill and Kate must be “reading my mind.” Keep on exposing the truth about this cruel, dishonest, and incompetent Administration and all of the “ethics-free minions” who carry out often illegal orders! What goes around, comes around, folks.

Anybody and I mean anybody, could need a fair, impartial, and honest justice system at some point in life. Why are so many folks standing by and letting Trump and his toadies destroy it? Piece by piece, the most important foundations of our democracy are being destroyed right in plain daylight!

Also congrats to my good friend and long-time fellow member of the Beverley Hills Community United Methodist Church family Mike Tackett of the NY Times and his colleague Linda Qiu for their continuing outstanding coverage of the truth about Trump’s disingenuous, wasteful, and cruel immigration policies. You’re making a difference, Mike and Linda! Keep at it!

There was a time when dishonesty and falsely filling out official government documents (known as fraud or willful misrepresentation in some criminal law circles) would get a Government employee fired, prosecuted, or disciplined. Not any more. With our country headed by a grifter “Liar-in-Chief” “anything goes” unless you are a migrant, a minority, or a member of the LGBTQ community. In that case, expect “no mercy.”

Also remember that White Nationalist former AG Jeff “Gonzo Apocalypto” Sessions disingenuously pontificated about “the rule of law,” called DHS “a partner of EOIR,” and referred to immigration attorneys as “dirty lawyers.” He tried to cover up his gross mismanagement and political manipulation of the Immigration Courts by falsely blaming migrants, their attorneys, and the Immigration Judges themselves for the mess he himself, and also to a large extent DHS, caused.

He also spread false narratives about “widespread asylum fraud” and made the demonstrably false claim that asylum applicants were somehow a “major cause” of 11 million (mostly hard-working and law-abiding) “illegals” as he liked to contemptuously call them in his racist lingo. I doubt that there have even been 11 million asylum applicants total since the enactment of the Refugee Act of 1980.

Certainly, the causes for our “extra-legal” immigration system go far beyond alleged asylum fraud (which, in fact, does exist on a much smaller scale and in my experience is generally effectively uncovered, investigated, and aggressively prosecuted by DHS). They are a direct result of outdated and misguided policies that failed to recognize legitimate market forces in creating legal immigration categories and a failure to fully carry out in a good faith manner our humanitarian obligations under the refugee laws and international conventions.

Fact is, even if restrictionists like Sessions won’t admit it, the vast majority of the 11 million undocumented individuals should have been screened and admitted under our legal immigration system. The U.S. Government created the problem; so far, they have lacked the honesty, leadership, and courage to fix it in a fair and humane way that will benefit both our country and the migrants, current and future. Immigrants are America. And, except for our Native American brothers and sisters, we are all immigrants!

That’s why we have the “New Due Process Army!” Enlist today, and help fight the forces of “malicious incompetence” everywhere and for as long as it takes to win the battle and vindicate the Constitutional right of everyone in American to enjoy the benefits of Due Process of law.

PWS

01-31-19

🤡”CLOWN COURT REPORT” — “ADR [“Aimless Docket Reshuffling”] is the watchword” — Yeah, it’s hard times under the Big Top (particularly if you’re in search of elusive and officially maligned Constitutionally-required Due Process!)

🤡🤡🤡🤡🤡

🤡”CLOWN COURT REPORT” — “ADR [“Aimless Docket Reshuffling”] is the watchword” — Yeah, it’s hard times under the Big Top (particularly if you’re in search of elusive and officially maligned Constitutionally-required Due Process!)

An inherently reliable, highly anonymous source deep within America’s most dysfunctional court system tells Courtside: “ADR is still the watchword. No telling how many cases are off calendar at this point.”

Origins of the term “Clown Court” 🤡 (it actually preceded the Trump Administration):

Once upon a time, when I was an Immigration Judge, I was assigned to do a 100-case Master Calendar by televideo to a court in another state. Slight problem: All of the files were in a third place. Another hitch: All of the ICE Assistant Chief Counsel’s files had been sent to the wrong office. In other words, no “government files” of any kind for 100 cases. Adding to the degree of difficulty: EOIR sent me a Spanish interpreter; but almost everyone on the calendar actually spoke French or a West African language (something clearly shown in the EOIR “computer system,” such as it was). I “finished” with this circus about 5 pm. But, none of my colleagues was around. They were in the conference room. I burst through the door and yelled “This is ——————— Clown Court.” Unfortunately, the then Chief Immigration Judge was making one of his rather infrequent visits to our Court. Needless to say, he wasn’t amused by my sudden outburst of unvarnished truth. Fortunately, he happened to be a long-time friend who owed his original hiring at the “Legacy INS” as well as several “up-ladder career moves” largely to me when I was the Deputy General Counsel/Acting General Counsel. So, I survived to “perform under the big top” another day. And remember, this was back when the Immigration Court was actually better managed by comparison with today’s intentional “man-made disaster.” Then, it was “quirky,” but not necessarily “beyond the pale.” It’s been straight downhill since. Every time we think it’s hit bottom, DOJ and EOIR management seem to dig a little deeper.

PWS

01-31-19

SCOTT BIXBY @ THE DAILY BEAST: Trump Puts U.S. Immigration Courts Into Freefall – Judges & Experts Doubt It Can Be Fixed Without Major Due Process Enhancements — “Fixing the backlog without sacrificing undocumented immigrants’ right to due process—a prospect with which Trump has already publicly flirted—could require a wholesale reconfiguration of the immigration court system, Marks said, starting with removing it from the purview of the Department of Justice.”

https://apple.news/A8VLzlyN7QImERHmUEChNnA

Scott Bixby reports for The Daily Beast:

President Donald Trump’s record-long shutdown may be over, (for now), but immigration judges and attorneys worry that its disastrous effects on the immigration court system will last for years.

The 35-day government shutdown, ignited over Trump’s demands for congressional funding of his long-promised border wall, exacerbated the very immigration crisis the president claims the barrier would solve, halting nearly all immigration court cases and putting three in four immigration judges on furlough. Hearings on asylum cases, deportation, and appeals against orders of removal were delayed indefinitely, pending a “reset” upon the government’s re-opening that shuffled tens of thousands of cases to the back of the line.

The only way to solve the pileup, one prominent immigration judge told The Daily Beast, is a trade: Dump Trump’s demand for a 2,000-mile wall, and instead double the number of immigration judges to deal with cases.

“If we’ve got a million cases backlogged, we need a thousand judges,” said Judge Dana Leigh Marks, an immigration judge in San Francisco and president emeritus of the National Association of Immigration Judges. The current roster of roughly 400 judges, she said, “is less than half of what we need.”

“We’re having a tsunami of retirements because working conditions have become so unbearable,” said Marks. “It is incredibly stressful, because we know that the consequences of our cases are literally life and death.”

The Department of Justice, which oversees the immigration court system, already had a crisis on its hands before the shutdown, Marks said, with a backlog of at least 800,000 cases in a system with too few judges and too little funding.

The swell of asylum seekers from El Salvador, Guatemala, and Honduras, combined with the Trump administration’s crackdown on undocumented immigrants in the United States, had created a years-long backlog of pending immigration court cases. The number of pending immigration court cases grew by 84 percent since the end of 2013, according to the Department of Justice’s Executive Office for Immigration Review, and jumped by 26 percent just since the end of 2016.

“They allowed the courts to get to the anemic state that we were in prior to the shutdown,” said Marks, who has served as an immigration judge for 33 years. With the cancellation of tens of thousands of immigration cases that will now be shuffled to the back of a years-long line, “the shutdown’s effects will last for years.”

That backlog—which doesn’t even include an estimated 300,000 closed “low-priority” cases that the Justice Department ordered reopened in May—is currently being pushed through a mere 60 immigration courts across the United States. The roughly 400 immigration judges who keep that system moving have been given the Sisyphean task of clearing their dockets, a mission that even the most industrious judges think may be unfeasible.

“Most of us are extremely pessimistic about the current state of our dockets,” said Marks, noting that immigration judges are optimally supposed to go through four three-hour hearings per day. “They’re booked in an unrealistically heavy-packed manner that will not mean that we can finish all of the cases that are set on a given day.”

In a bid to speed through the backlog, the Department of Justice announced in April that it would impose quotas on judges, requiring the completion of 700 immigration cases per year to earn a “satisfactory performance” rating, as well as less than 15 percent of their cases remanded to a higher court—meaning that judges have to both increase the speed of their proceedings while decreasing errors that could lead to an appeal.

“The purpose of implementing these metrics is to encourage efficient and effective case management while preserving immigration judge discretion and due process,” wrote then-Attorney General Jeff Sessions when the policy was announced.

That new policy, Marks said, would only increase the pressure on the judge to serve two competing masters: the Department of Justice quotas and due process.

“The quintessential skill of a judge is knowing how to schedule your dockets, and yet we’re being told for political reasons, for the optics, how to do so,” said Marks, who warned that forcing judges to speed along complex proceedings encourages future appeals based on questions of judicial motivation.

“These are not simple and straightforward” cases, said Marks, who once famously likened deportation proceedings to “doing death penalty cases in a traffic court setting.”

“An immigration judge is shifting through four or five different times that the story has been told to see whether it’s consistent or inconsistent… Political optics is at tension, if not in conflict, with a judge’s role to ensure that each case in front of us provides the individual with due process.”

Add in a shutdown, immigration attorneys told The Daily Beast, and an overburdened system risks collapsing into chaos.

“Each day that there’s a government shutdown, you’re setting yourself up to add months” before a hearing, said Michael Wildes, an immigration attorney who represented Melania Trump and her parents in their immigration proceedings. “There will be enormous delays. For undetained individuals with court dates… they will back up even more egregiously than they have.”

Unclogging the dockets may be impossible, said Jason Dzubow, a Washington D.C.-based immigration attorney specializing in asylum law, leaving clients with good cases waiting for years to have their day in court.

“It’s just gonna be way too complicated to give people any kind of priority—which then, of course, causes a huge chain reaction, because it’s already a big mess,” Dzubow said. “What are they going to tell their families?”

Fixing the backlog without sacrificing undocumented immigrants’ right to due process—a prospect with which Trump has already publicly flirted—could require a wholesale reconfiguration of the immigration court system, Marks said, starting with removing it from the purview of the Department of Justice.

“People feel like there’s a thumb on the scales… because of the historically close relationship between the prosecutors‚ the Department of Homeland Security and the judges,” said Marks. “Judges have become, in a way, the sacrificial lamb in this process, because so much pressure has been applied to us. If we don’t follow, it renders us subject to personal discipline or training for evaluations that we are performing poorly, which can affect our very ability to retain our jobs.”

Such a dynamic, Marks said, has “a tremendous chilling effect.”

“A political branch is not the proper administrator for a neutral legal system.”

But in the meantime, both judges and attorneys working in the clotted immigration system feel that the $5.7 billion Trump has demanded for his border wall would be put to better use in hiring more immigration judges.

“There is an enormous divide between the amount of traffic and judges,” said Wildes. “In many ways, immigration has been looked upon as a stepchild in our legal system, where people recognize that it’s only a civil matter rather than a criminal matter. It actually has greater import—particularly when someone is facing banishment from the country.”

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

Yup! Should be no surprise to readers of “Courtside.” In my experience, EOIR never really recovered from the mindless 2013 shutdown. Anybody with any real knowledge or who cared about our Government, our Constitution, and real immigration enforcement could have seen this coming “from a million miles away.” But, we’re saddled with a Kakistocracy — a “Clown Administration” if you will. 🤡

PWS

01-30-19

A PRESIDENCY WITHOUT INTELLIGENCE IS A THREAT TO OUR NATIONAL SECURITY: By Contrast, Individuals Seeking Asylum Through Our Legal System @ Our Southern Border Are No Such Thing — “None of the [U.S. intelligence] officials said there is a security crisis at the U.S.-Mexico border, where Trump has considered declaring a national emergency so that he can build a wall.”

James Hohmann from the “Daily 202” in today’s WashPost:

— Here are five of the main issues where the intelligence community leaders broke with Trump:

Coats “said that North Korea was ‘unlikely to completely give up its nuclear weapons and production capabilities,’ which the country’s leaders consider ‘critical to the regime’s survival.’ That assessment threw cold water on the White House’s more optimistic view that the United States and North Korea will achieve a lasting peace and that the regime will ultimately give up its nuclear weapons.’”
“None of the officials said there is a security crisis at the U.S.-Mexico border, where Trump has considered declaring a national emergency so that he can build a wall.”
“Officials also warned that the Islamic State was capable of attacking the United States and painted a picture of a still-formidable organization. Trump has declared the group defeated and has said he wants to withdraw U.S. troops from Syria as a result.”
“The officials assessed that the government of Iran was not trying to build a nuclear weapon, despite the Trump administration’s persistent claims that the country has been violating the terms of an international agreement forged during the Obama administration. Officials told lawmakers that Iran was in compliance with the agreement.”
“Officials also warned, as they did last year, about Russia’s intention to interfere with the U.S. political system. … Trump continues to equivocate on whether Russia interfered in the 2016 election on his behalf, contradicting the unanimous assessment of all the top intelligence officials currently serving.”

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

Here’s a more detailed story by Shane Harris from today’s Post setting forth just how “out to lunch” our “Intelligence professionals,” whom Trump himself appointed, think the President’s “threat assessment” is, specifically including, but not limited to, his “manufactured security crisis” at the Southern Border. https://www.washingtonpost.com/world/national-security/intelligence-officials-will-name-biggest-threats-facing-us-during-senate-hearing/2019/01/28/f08dc5cc-2340-11e9-ad53-824486280311_story.html?utm_term=.5b8041d6dc0a

I’ve been saying on “Courtside” for some time that the real existential threat to our national security is Trump. While the Administration has undoubtedly completely screwed up our asylum system at the border and in the U.S. Immigration Courts that has almost nothing to do with “national security.”

It’s simply a matter of common sense: We know (or should know) almost exactly what the number oF arrivals is going to be, particularly when they travel in slow-moving “caravans” that easily can be tracked and anticipated. We certainly could “funnel” almost all of them into the legal screening system for asylum.

Get the Inspectors and Asylum Officers down there to do the screening, and the necessary Immigration Judges, ICE lawyers, and defense counsel to decide cases of those screened in! Take lower priority cases, most involving long-term residents who have been here and likely will continue to be here for years, off the overcrowded Immigration Court dockets!

This would allow processing of the “new influx” in a timely manner, with full due process, and without creating more “Aimless Docket Reshuffling” in the Immigration Courts. It would also avoid the always ineffective, wasteful, and usually illegal “gimmicks” that the Administration has used to “game” the asylum system against applicants. And, certainly in this respect, getting more pro bono lawyers involved would be a much bigger help than more unneeded troops or Border Patrol Agents. Let the Border Patrol go back to their job of apprehending those border crossers who aren’t turning themselves in at or near the border to apply for asylum. Stop wasting resources and solve the problem!

Meanwhile, we should all be scared by Trump’s disregard of the prudent advice of his “national security and intelligence team.”

PWS

01-30-19

“VACATION WITH A PURPOSE” THIS AUGUST: COME SPEND A WEEK OF FUN AND GROUP LEARNING WITH PROFESSOR JENNIFER ESPERANZA (BELOIT COLLEGE) AND ME AT LAWRENCE UNIVERSITY’S BEAUTIFUL BJÖRKLUNDEN CAMPUS ON THE SHORES OF LAKE MICHIGAN IN BEAUTIFUL DOOR COUNTY, WI! – Register For “American Immigration” Aug. 4-9, 2019 Here!

American Immigration

A Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issue Dominating Our National Dialogue. All Americans are products of immigration. Even Native Americans were massively affected by the waves of European, involuntary African-American, Asian, and Hispanic migration. Are we a nation of immigrants or a nation that fears immigration? Should we welcome refugees or shun them as potential terrorists? Do we favor family members or workers? Rocket scientists or maids and landscapers? Build a wall or a welcome center? Get behind some of the divisive rhetoric and enter the dialogue in this participatory class that will give you a chance to “learn and do” in a group setting. Be part of a team designing and explaining your own immigration system. Your faculty leaders will be retired U.S. Immigration Judge Paul Wickham Schmidt, currently an Adjunct Professor at Georgetown Law, and Professor Jennifer Esperanza of the Beloit College Anthropology Department, who will also share her compelling experiences as the daughter of immigrants. Professor Esperanza and Judge Schmidt have successfully used their unique “legal/cultural anthropological approach” in undergraduate teaching and will now offer it in a post-graduate seminar.

Paul Wickham Schmidt ’70, retired in 2016 after 13 years as a U.S. Immigration Judge at the Arlington (VA) Immigration Court. Prior to that, he was an Appellate Immigration Judge on the Board of Immigration Appeals, U.S. Department of Justice, serving as the Chairman for six years. He also practiced business immigration law as a partner at Jones Day and managing partner of the D.C. Office of Fragomen. He was Senior Executive in the “Legacy INS” under administrations of both parties. Following graduation from Lawrence, he received a J.D from the University of Wisconsin Law School. He also received the 2010 Lucia Briggs Distinguished Achievement Award from Lawrence. Currently, he is an Adjunct Professor at Georgetown Law, writes the blog immigrationcourtside.com, and is a frequent speaker, radio, and tv commentator on current immigration issues.

Jennifer Esperanza received her Ph.D. in Anthropology from UCLA. She also holds a M.A. from UCLA and a B.A. from USC. She has been a Professor of Anthropology at Beloit College since 2008. As one of two socio-cultural anthropologists in the Department of Anthropology, her primary areas of expertise include political economy, Southeast Asia (Indonesia and the Philippines), tourism and handicrafts, language and identity, consumerism and immigration and refugee resettlement in the United States. She believes students must learn that culture cannot be properly understood without examining its economic and political contexts. In addition to authoring a number of scholarly publications, she received a Marvin Weisberg Foundation for Human Rights Faculty Research Grant in 2015, and a Mellon Foundation research grant in 2018-19.

Date:

Sunday, August 4, 2019 to Friday, August 9, 2019

Fee(s):

$925 – Double; $1,200 – Single; $465 – Commuter

Topic(s):

Law & Politics

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

Come join us this summer in Door County for an exciting and unforgettable vacation and learning experience.

Paul & Jennifer

Here’s the link for registration:

https://mailchi.mp/8a23e32650fd/2018-bjrklunden-seminars-vacation-with-a-focus-34469?e=82d2406b76

WELCOME A “NEW FACE ON THE STREET” — Louise Radnofsky Takes Over WSJ’s “Immigration Beat” — Trump’s War On America Mindlessly Trashes An Already Crippled Immigration System!

https://www.wsj.com/articles/shutdown-compounds-woes-for-immigration-system-11548702443?mod=mhp

Louise writes:

U.S. Shutdown Compounds Woes for Immigration System
The partial government shutdown that centered on border security appears to have left the nation’s strained immigration system in an even deeper hole than before.
By Louise Radnofsky
WASHINGTON—The partial government shutdown that centered on border security appears to have left the nation’s strained immigration system in an even deeper hole than before the five-week standoff.
A backlog at immigration courts, at more than 800,000 cases the day before the funding gap that

A backlog at immigration courts, at more than
800,000 cases the day before the funding gap that started Dec. 21, likely grew by around 20,000 for each
of the weeks the courts stopped hearing most cases. Litigation over immigrant-family separations and asylum claims by people crossing the border between official entry points stalled because Justice Department lawyers were furloughed.
E-Verify, the program that hard-liners favor because it bars hiring of illegal immigrant workers, was closed. Around 20,000 U.S. Border Patrol agents worked without pay for an agency already short of about 2,000 officers because of hiring issues and attrition.
“It’s chaos on top of disaster,” said Paul Wickham Schmidt, a retired immigration judge and former chairman of the Board of Immigration Appeals. “It’s already a system bursting at the seams….We have a shutdown over border security and immigration, but they shut the mechanism that issues final deportations. How does that make sense?”
The Trump administration says the court delays allow illegal immigrants to stay in the U.S. even if they don’t have strong claims to do so. Immigrant advocates say the delays weaken the cases of immigrants who do have claims to stay, and leave them in limbo.
Before the shutdown, the administration tried to accelerate the court’s docket by imposing case- completion quotas on its 400 judges. The president also proposed adding 75 judges as part of an ultimately unsuccessful deal to end the shutdown. The shutdown effectively denied the government one year’s worth of work by 40 judges—with no new judges to show for it.
The active-case backlog was 809,041 at the end of November, said the Transactional Records Access

Clearinghouse at Syracuse University, which tracks court activity. Between Dec. 21 and Jan. 11, a period that included some days where the courts would have been closed for holidays anyway, 42,726 scheduled hearings had been canceled, TRAC said.
TRAC estimated that each subsequent week the courts were closed would result in approximately 20,000 canceled hearings. Susan Long, TRAC’s co-director, said it couldn’t calculate a total for the backlog now because current Freedom-of-Information requests about the number of cases in the system, including new ones added, went unanswered as the people handling them were furloughed.

RelatedTrump Skeptical He Would Accept Any Border Deal
Analysis: For Democrats, Shutdown Success Also Brings Danger
CBO: Shutdown Will Cost $3 Billion of Projected GDP Who’s Negotiating Border Security

E-Verify, the voluntary online system employers use to verify workers’ immigration status, was suspended through the shutdown. Employers couldn’t enroll, create new cases or view existing ones. The 300 E- Verify workers at the U.S. Citizenship and Immigration Services were the only of the agency’s 17,973 employees to be furloughed because the program is funded through congressional appropriations; others, such as naturalizations, are funded through user fees.
Some supporters of tighter immigration restrictions say E-Verify is the federal government’s most important tool to curb illegal immigration because it makes it harder for illegal immigrants to work in the U.S.
Eric Ruark, director of research at NumbersUSA, a group advocating reduction of immigration both legal and illegal, said E-Verify is much more effective than border barriers, and his group has supported mandating its use for employers. “A wall is not at the top of our list,” he said.
E-Verify reported more than 40 million people were checked during the year ended Sept. 30, on requests from more than 266,000 employers, for an average of more than 750,000 cases a week. Citizenship and Immigration Services said employers were still required during the shutdown to obtain and submit information from new hires about their immigration status, even if they couldn’t immediately obtain a verification determination.
Customs and Border Protection required around 55,000 of its roughly 60,000 employees to work without pay through the shutdown, according to contingency planning documents drawn up by the Department of Homeland Security.
Meanwhile, Justice Department lawyers working on important litigation were furloughed, applied for stays, and courts agreed to postpone deadlines.

Lee Gelernt, an American Civil Liberties Union lawyer who is suing the administration in several cases, said he planned to use the government’s request for a pause against it in the case over asylum-seeking outside of ports of entry. “The administration told the Supreme Court—and the country—that the asylum ban was critical for our national security yet then asked that the case be stayed during the shutdown, leaving no doubt that the administration itself does not actually believe the asylum ban is a matter of national security,” he said.
A Justice Department spokeswoman, one of a handful working through the shutdown, said the government had been granted stays in some cases and denied in others. She said she couldn’t comment in detail because the majority of her co-workers were still furloughed.
Alicia A. Caldwell contributed to this article. Write to Louise Radnofsky at
louise.radnofsky@wsj.com

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

Welcome Louise, to “where the action is!” Glad to have you “on the beat.” We all look forward to reading much more of your timely reporting and incisive analysis.

This article shows what a complete hoax Trump’s $5.7 billion border wall “demand” is. Trump’s disrespect for the workers who are the only thing propping up his corrupt and incompetent Administration of grifters is breathtaking as is his contempt for rational immigration enforcement.

Trump’s “malicious incompetence” just cost our country $3 billion in unrecoverable losses! And, he’s certainly vindictive enough to do it again in less than three weeks. So, those who still care about our nation had better have a “Plan B” to thwart his renewed attack on democracy.

The Trump Administration is Kakistocracy in action.

PWS

01-26-19

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Origins of the term “Clown Court” 🤡 (it actually preceded the Trump Administration):

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