Backlogs – Page 57 – immigrationcourtside.com

VALERIE BAUMAN @ DAILY MAIL: SESSIONS’S POLICIES CONTINUE TO INCREASE IMMIGRATION COURT BACKLOGS — “‘No sane person would look at this and think that throwing more cases into this system would be a good idea.’ -Former immigration Judge Paul Wickham Schmidt”

http://www.dailymail.co.uk/news/article-6115563/Backlogs-U-S-immigration-courts-38-percent-Trump-took-office.html

Backlogs in U.S. immigration courts are up 38 percent since Trump took office

Backlogs in U.S. immigration courts are up 38 percent since Trump took office, with the biggest increases in Maryland, Massachusetts and Georgia

U.S. immigration courts have had a 38 percent increase in case backlog since President Trump took office

Nationwide, there are 746,049 pending cases before 351 immigration judges, up from 542,411 in January 2017

The Department of Justice has recently hired 23 new judges and streamlined the process for hiring judges, but many experts say other Trump administration policy changes continue to exacerbate the system

By VALERIE BAUMAN SOCIAL AFFAIRS REPORTER FOR DAILYMAIL.COM

PUBLISHED: 13:43 EDT, 30 August 2018 | UPDATED: 10:25 EDT, 31 August 2018

The U.S. immigration court system is straining to accommodate cases, with a 38 percent increase in the backlog since President Trump took office, according to a new analysis of government data.

Nationwide, there were 746,049 pending cases as of July 31 – up from 542,411 at the end of January 2017, according to the Transactional Records Access Clearinghouse at Syracuse University.

‘It’s a fairly remarkable increase – nearly 40 percent in 18 months,’ former immigration Judge Paul Wickham Schmidt told DailyMail.com. ‘It shows that the policies being followed by this administration are making things worse rather than better.’

The increase in caseload has occurred unevenly, with 10 states responsible for the majority of the growth in backlogged cases.

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While not every state has immigration court, immigrants living in each state have cases before an immigration judge. This map illustrates where people with pending immigration cases are living

Maryland had the highest increase (96 percent), with 33,384 backlogged cases as of July 31, compared to 17,074 at the end of January 2017.

Massachusetts followed, with a 76 percent increase to 26,782 cases, compared to 15,208 cases 18 months earlier.

No sane person would look at this and think that throwing more cases into this system would be a good idea. -Former immigration Judge Paul Wickham Schmidt

Georgia had the third highest increase at 67 percent (rising to 23,249 cases from 13,955), followed by Florida with a 57 percent increase (up to 50,544 pending cases from 32,233). California had a 48 percent increase and the highest overall backlog of any state with 140,676 unresolved cases, up from 95,252.

Attorney General Jeff Sessions has sought to address the problem through a number of steps, however many experts say changes under the Trump administration are exacerbating the backlog.

‘No sane person would look at this and think that throwing more cases into this system would be a good idea,’ Wickham Schmidt said.

The Executive Office for Immigration Review, which oversees the immigration court system, announced earlier this month that it has hired 23 new immigration judges in an effort to take on the backlog and to offset the retirement of judges.

That change brings the total number of immigration judges to 351, with Department of Justice officials expecting to add another 75 in the fall.

Sessions says he has also introduced a ‘streamlined’ approach for hiring judges – a historically lengthy process – to bring the average hiring time down to 266 days, compared from 742 days in 2017, according to Department of Justice data.

In addition, the DOJ has introduced a new quota that would require immigration judges to close 700 cases a year.

Quotas ‘would threaten the integrity and independence of the court and potentially increase the court’s backlog,’ according to the National Association of Immigration Judges, the union representing the judges.

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Ten states were responsible for a majority of the increase in case backlogs within U.S. immigration courts since President Trump took office

Despite those efforts, experts say that a number of policy changes under the Trump administration continue to compound the backlog and more recent actions could worsen the situation in years to come.

‘The problem is basic policy decisions in managing the workload,’ said Susan B. Long, co-director of TRAC, which published the analysis. ‘Historically backlogs have been rising for a very long time, so this is not a new problem, but they have accelerated since President Trump assumed office.’

Throwing a couple hundred thousand cases back into an already overloaded system is obviously going to have an impact. -Former immigration Judge Jeffrey S. Chase

Under the current administration, the DOJ has ended an Obama-era practice that gave the government prosecutorial discretion in immigration cases, which allowed Immigration and Customs Enforcement attorneys to prioritize certain cases and deprioritize others by taking them off the docket indefinitely.

For example, officials could deprioritize cases in which an immigrant has been living in the country for many years without committing any crimes, who is also paying taxes and has close relatives who are U.S. citizens.

The goal was to allow the DOJ to focus more time and energy prosecuting immigrants who were convicted of other crimes, engaged in gang activity, or who had just crossed the border.

Long told DailyMail.com that ‘tens of thousands’ of cases could be reintroduced to the docket now that prosecutorial discretion has been eliminated.

Sessions also issued a decision earlier this year that takes away the authority of immigration judges to administratively close cases. Similar to prosecutorial discretion, administrative closures allowed a judge to close low-priority cases to make room on the docket for more serious offenses.

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The backlog of immigration cases has risen steadily over the past decade

From Oct. 1, 2011 through Sept. 30, 2017, 215,285 cases were administratively closed, according to Sessions’ decision.

Now those cases are being added back to the docket, former Immigration Judge Jeffrey S. Chase told DailyMail.com.

‘Throwing a couple hundred thousand cases back into an already overloaded system is obviously going to have an impact,’ he said.

In addition, the Trump administration is planning to terminate Temporary Protected Status for people from El Salvador in September 2019 and Haiti in July 2019. TPS is a designation for people from certain countries for whom it would be unsafe or not feasible for them to return home. Chase said putting an end to the program will add to the backlog in the future.

Long said that the increase in immigration crackdowns at workplaces and at the Southern U.S. border are primarily being handled by criminal courts, so those aren’t having a huge impact on the backlog.

In many cases simple case ‘churn’ – when cases are postponed because a judge isn’t available or unable to get to all scheduled cases in a day – is the cause of backlog, Long said.

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Susan Long and Jeffrey have hit the nail on the head. Sessions has replaced a nascent but very promising prosecutorial discretion (“PD”) system instituted by DHS toward the end of the Obama Administration with more “Aimless Docket Reshuffling.” “Churning,” as used by Susan is another term for “Aimless Docket Reshuffling,” or “ADR” for short.

The “spiggot” of Immigration Court cases is under the sole control of ICE. No court reform is likely to succeed unless it includes an element of responsible and prioritized use of court time — the process followed by every other law enforcement agency in America that I’m aware of except ICE. Sessions — and let’s be honest, he’s running both immigration enforcement through DHS and the courts at DOJ despite the glaring conflict of interest — is moving in exactly the opposite direction with his bone-headed “zero tolerance” and “deport ’em all” pronouncements.

By 1) eliminating policies favoring the prudent use of court time; 2) removing the authority of Immigration Judges to close cases that could be better handled by USCIS off the courts’ active dockets; 3) disrupting settled asylum law and discouraging ICE from stipulating or otherwise settling cases, making most cases “full three-hour merits hearings;” and 4) overemphasizing detention, thereby shifting judicial resources from non-detained courts where all of the backlog exists to detained courts, Sessions has virtually guaranteed a continued growth in backlog.

The most telling fact: even with dozens more Immigration Judges on the bench than during any time in the Obama Administration, and all sorts of sophomoric “just pedal faster, shame and blame” invectives directed at the Immigration Judges themselves, as well as embattled private attorneys, the Trump Administration has never been able to complete more Immigration Court cases than it has docketed. That’s the definition of an out of control backlog.

Another sobering stat: Assuming that the 350 Immigration Judges now on duty worked on nothing but backlog — no new cases — and that each of them achieved their “quota” of 700 cases annually, it would take until nearly 2022 just to complete all of the cases in the current backlog!

No, the answer isn’t to blame the victims: the migrants exercising the legal rights to which they are entitled, the attorneys (many serving pro bono) trying to help them, and the beleaguered judges themselves and their overwhelmed court staff.

The answer is in the exercise of some prosecutorial discretion by the DHS to get “low priority” individuals and cases off the docket. At some point, that must be combined with a legislative program that allows those undocumented individuals with clean records, equities, and who are effectively part of and important contributors to our society to remain in some type of legal status. In my view, that should involve a path to a green card. But, even a more limited, renewable “TPS-type” status that allowed individuals to reside, work, study, and pay taxes in the US would be a big step in the right direction.

Not going to happen under Trump & Sessions? Yeah, that’s likely true. All the more reason to replace them with non-White Nationalists capable of recognizing the many important contributions of all kinds of migrants and governing wisely in the overall public interest.

PWS

09-03-18

HON. JEFFREY CHASE ON HOW THE BIA “BLEW OFF” THE SUPREMES — Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018) — Is The BIA Risking Docket Disaster To Please Sessions?

https://www.jeffreyschase.com/blog/2018/9/1/the-bia-vs-the-supreme-court

The BIA vs. the Supreme Court?

Although it hasn’t caught the attention of the public or the media, the Supreme Court’s June 21 decision in Pereira v. Sessions has inspired immigration lawyers this summer, giving reason to hope and dream. Unfortunately, the case’s importance gets lost in the details to those not proficient in the field of immigration law. The issue that the Supreme Court agreed to decide was a narrow one: whether a Notice to Appear (i.e. the document that must be served by DHS on the Immigration Court in order to commence removal proceedings) that lacks a time and a date of the initial hearing is sufficient to invoke the “stop-time rule” that would prevent a noncitizen from accruing the 10 years of continuous presence in the U.S. needed to apply for a relief from deportation called cancellation of removal. If you are a layperson, I’m sure I’ve already lost you. But read on, as what preceded doesn’t really matter for purposes of our discussion; the important part is yet to come.

BIA precedent decisions that are subpar in their rationale are often upheld by circuit courts because of something called Chevrondeference. Chevron refers to a 1984 Supreme Court case requiring courts to defer to the interpretation of statutes by federal agencies that are specifically charged with administering the statute in question. The Board of Immigration Appeals is a part of one of the agencies (EOIR) charged with administering immigration laws; therefore, under Chevron, its decisions are owed deference by the circuit courts, even if those courts disagree with the BIA’s decision or would have reached a different outcome themselves. But before such deference is owed, the decision must pass a two-step test. First, the reviewing court must find that the statute the BIA is interpreting is ambiguous. This is important, because if the statute is clear on its face, there is no basis for the agency to have to interpret that which needs no interpretation. Only if the court determines that the statute is in fact ambiguous does it apply the second step of the test, which is whether the agency’s interpretation is reasonable.

I’m pretty certain that I’ve lost even more readers in the preceding paragraph. I thank those of you who are still with me for your patience. In Pereira, the statute involved is section 239(a) of the Immigration and Nationality Act, which states what information the Notice to Appear (i.e. the document needed to commence removal proceedings) must contain. In a 2011 precedent decision, the BIA had interpreted that statute to mean that the time and date of the initial hearing were not critical elements, and that their inclusion was not required to trigger the stop-time rule. Six federal circuits accorded Chevron deference to the BIA’s interpretation. The lone exception was the Third Circuit. The Supreme Court agreed to hear the case to resolve this split. In an 8-1 decision (in which even Justice Gorsuch, Trump’s appointee, joined the majority), the Court sided with the Third Circuit. The Court explained that no Chevrondeference was due because the statute was crystal clear, as it said in no uncertain terms that a time and a date are among the information a Notice to Appear must contain.

Finally, here is the really important part. In its decision, the Supreme Court stated that a notice that does not contain a time and date of hearing “is not a notice to appear” under section 239(a). The highest court in the land did not say that it is not a notice to appear only for some narrow purpose; it bears repeating that it said without such information, the document is not a Notice to Appear.

Those of you who are still reading might feel let down about now. You’re saying “That’s it? Where is the big payoff I was promised? I’ll never get those three minutes of my life back that I just wasted reading jibberish about some kind of stopping rule that I still don’t understand.” So here is where I hope I make it worthwhile. All of us immigration lawyers read the above sentence and instantly thought the same thing: if the Supreme Court just said that a notice without a time and date is not a Notice to Appear, than almost every one of our collective clients were never properly put into removal proceedings. The Supreme Court decision mentioned that when asked what percentage of NTAs issued in the past three years lacked a time and a date, the government responded “almost 100 percent.” There are presently close to 750,000 cases pending before immigration courts, and there were hundreds of thousands of cases already decided by those courts over the past 15 or 20 years that also involved NTAs missing the time and date. And the courts are now going to have to find that nearly all of those proceedings were invalid. Old removal orders will have to be reopened and terminated. Almost all pending cases will have to be terminated. Although DHS will at least intend to restart all of those hearings over by now serving each individual with an NTA that does contain a time and date, how long might that take to accomplish? And even if they are placed into proceedings again, those who were previously denied relief get a second chance. Perhaps this time with a different judge, a better lawyer, and more equities in their favor?

So in a year in which the Attorney General has tried to remake immigration laws to his own liking, and continues to assault the independence of the only judges he directly controls; in which children have been unapologetically separated from their parents at the border, in which victims of domestic violence have been told the rapes and violent abuses they have suffered are will get them no protection in the U.S.A., Pereira allowed us to dream of pushing a “restart” button, a “do-over.” Attorneys began filing motions to terminate. The response of immigration judges was mixed, with some agreeing with the argument and terminating proceedings; while others said no, Pereira was only meant to apply to the narrow technical issue of the “stop-time” rule, and not to the broader issue of jurisdiction.

Of course, the BIA needed to weigh in on this issue. I had no doubt that the Board would rule with the latter group and find that proceedings need not be terminated. And of course, on Friday, that’s just what they did. The response from the legal community has been one of outrage. First of all, it normally takes 18 months or longer for the BIA to issue a precedent decision; it can sometimes take them many years. Here, the Board issued its decision in two months. As one commenter pointed out, it reads like a college freshman paper written at midnight. Considering the importance of the issue, the Board truly abandoned its legal responsibility by cranking out such a poorly written decision that fails to address (much less adequately analyze) most of the major issues raised by Pereira.

While I could go on and on with what is wrong with the BIA decision (issued on a Friday afternoon before the Labor Day weekend, the better to sneak under the radar), I’ll just focus here on one point. The decision (written by Board Member Molly Kendall Clark), cites the applicable regulation (8 C.F.R. section 1003.14(a)), which states that “Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” As background, another section of the regulations defines “charging document” to include a “Notice to Appear.” The documents in question here all purport to be Notices to Appear, and do not meet the definition of any other charging document described in the regulation. Kendall Clark writes that the regulation does not specify what information must be contained in the charging document at the time it is filed with the Immigration Court, “nor does it mandate that the document specify the time and date of the initial hearing before jurisdiction will vest.”

Really? Because the U.S. Supreme Court just said, very clearly, that a notice lacking a time and date of hearing is not a Notice to Appear. How is it OK for the BIA to just ignore a crystal clear holding of the Supreme Court?

The answer is that in the mind of the BIA’s judges, the Supreme Court doesn’t have the ability to fire them, while the Attorney General does. The other truth is that while BIA judges have been removed under Republican administrations for being too liberal, none has ever suffered any consequences under Democratic administrations for being too conservative. Although I’m in the liberal camp, I’m not saying that the BIA is not entitled to reach a conservative conclusion. But it can’t so blatantly disregard the law (in particular, a decision of the Supreme Court) out of self-preservation or political expediency.

The next step will be appeal of the issue to the various circuits. In light of Pereira, there should be no Chevron deference accorded to the Board’s latest decision. However, should another circuit split result, this issue may end up before the Supreme Court again.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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Here’s a copy of the BIA’s precedent decision in

Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018):

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Want to see a better, more logical approach that would have honored the Supremes’ reasoning in Pereira? Here’s a succinct, well-reasoned opinion from Judge Elizabeth Young of the San Francisco Immigration Court that refutes each ICE argument and shows why the BIA’s approach in Bermudez is likely to be rejected by at least some Circuit Courts.

IJ ORDER – SF IJ terminated under Pereira – very clear reasoning – Nameless

(Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this along.)

That no BIA Appellate Immigration Judge was willing to argue the much more logical and legally defensible approach presented in Judge Young’s decision illustrates how little real deliberation or debate remains at today’s BIA. Basically, a deliberative tribunal that no longer dares or cares to publicly deliberate in setting precedents and that decides the vast majority of non-precedent cases as “panels of one.”

As Jeffrey points out, the BIA and ICE appear to be on self-created course for a potential “Pereira II.” That, in turn, could result in hundreds of thousands of cases being subject to remand or reopening for termination. On the other hand, if ICE just reserved the NTA now, as suggested at the end of Judge Young’s opinion, the whole problem could largely be avoided. Go figure!

Yet another example of how the backlog is unlikely to diminish as long as the Immigration Courts remain in DOJ, and particularly with Jeff Sessions as the AG.

PWS

09-02-18

GONZO’S WORLD: SESSIONS’S POLICIES INCREDIBLY “JACK UP” THE IMMIGRATION COURT BACKLOG BY NEARLY 40% IN JUST 18 MONTHS! – More Judges = More Backlog Under Sessions! – Cutting Corners, Destroying What’s Working, & “Deep Sixing” Due Process Having Toxic Effect!

HERE’S THE LATEST FROM TRAC:

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

Greetings. As of July 31, 2018, pending cases in Immigration Court nationwide reached nearly three-quarters of a million (746,049 cases). This is a 38 percent increase compared to the 542,411 cases pending at the end of January 2017 when President Trump took office.

All states are witnessing an increase in Immigration Court backlogs. However, ten states account for the vast majority of the backlog. Four out of five pending cases in the country are before immigration judges in these ten states. The state of Maryland leads the pack with the highest rate of increase in pending cases since the beginning of FY 2017. Pending caseloads in Maryland have increased by 96 percent, roughly double its caseload at the beginning of FY 2017. Of the top ten states, courts based in Texas experienced the least amount of growth at 20 percent. See Figure 1.

In absolute terms, California has the largest Immigration Court backlog – 140,676 cases waiting decision, a number that has increased by 48 percent from its FY 2017 pending caseload level.

Courts based in three other states experienced even higher growth rates than in California. Massachusetts’ court backlog grew by 76 percent. The backlog in Georgia grew by 67 percent, while pending cases in Florida grew by 57 percent.

To view further details on each of the top ten states go to:

http://trac.syr.edu/immigration/reports/526/

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 July 2018. For an index to the full list of TRAC’s immigration tools go to:

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

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

http://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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As many of us had predicted, by twisting the law against asylum seekers, rather than letting it develop in a manner that would have correctly resulted in more asylum grants in shorter hearings, Sessions has contributed mightily to the increasing backlog. Also, in his conflicted role as the “de facto head of DHS,” Sessions has all but eliminated prosecutorial discretion (“PD”) at ICE. His actions have also put many properly closed cases that should have remained off docket or with USCIS back on the Immigration Courts’ docket while stripping Immigration Judges of the tools necessary to manage their dockets.

Sessions effectively has taken a sinking ship and punched holes below the waterline to make it sink even faster. And, he has proved that without some type of rational, Due Process reforms leading to an independent Article I Immigration Court, there is no way of getting a handle on the Immigration Courts’ problems while complying with the Constitution.

A system that essentially is being abused and run into the ground by the Government party appearing before it in every single case is doomed to failure. The first step to any successful court system is creating a fair, impartial, and efficient process, including a transparent merit selection system for the judges, that can then be replicated and improved over time under the direction of judges with input from all parties. That first step will never be taken as long as Sessions and the DOJ remain in change.

But, no system will be able to eliminate overnight a backlog resulting from more than a decade of political manipulation and mismanagement by the DOJ under Administrations of both parties. Even though anti-Constitutionalists like Sessions, Trump, and co. want to admit it, the Supreme Court has told us the simple truth that Due Process takes time. There is no “silver bullet” or “one size fits all” formula for achieving it.

PWS

08-30-18

INSIDE EOIR WITH HAMED ALEAZIZ: THE INSIDIOUS WAYS IN WHICH SESSIONS CONTINUES TO COMPROMISE JUDICIAL INDEPENDENCE OF THE IMMIGRATION COURTS — Quoting “Our Gang Rock Star” Hon. Jeffrey S. Chase!

https://www.buzzfeed.com/hamedaleaziz/immigration-judges-have-been-told-to-hold-more-hearings?utm_term=.yhamGYaYoZ#.yhamGYaYoZ

HAMED ALEAZIZ reports for BuzzFeed:

In a move that advocates say could threaten due process rights for immigrants and lead to more deportations, immigration judges in multiple cities have been instructed to cram more hearings into their daily schedules, according to sources knowledgeable on the matter.

Advocates believe the Trump administration has undercut the independence of judges in order to speed up deportations. Already this year, Attorney General Jeff Sessions restricted the types of cases in which asylum would be granted and limited the ability for judges to indefinitely suspend certain cases.

Judges across the country, in places like San Francisco; Arlington, Virginia; Memphis, and Dallas, recently received the instructions from assistant chief immigration judges, who supervise separate immigration courts, to schedule three merits hearings a day starting Oct. 1, according to sources who did not want to speak publicly on the matter.

An Executive Office for Immigration Review official said that that the assistant chief judges were not directed by the office’s leadership to push the instructions.

Advocates believe the move could be potentially disastrous for immigrants. During merits hearings, immigrants facing deportation provide evidence and call witnesses to back up their claims to remain in the country, such as arguing for asylum. In addition, earlier in the year, the Department of Justice announced that beginning Oct. 1, judges would be expected to complete 700 cases a year.

“The requirement of three merits hearings a day could do more to threaten the integrity of the court system than the 700-case-per-year requirement,” said Sarah Pierce, a senior analyst at the Migration Policy Institute, a Washington think tank. “Requiring immigration judges to schedule three merits hearings a day assumes each case will be a similar or at least comparable length — and that’s just not true.”

Pierce said some hearings, such as asylum hearings, may require detailed testimony that can make the case stretch on for hours. “By mandating three merits hearings a day the court would be placing unrealistic pressures on immigration judges, which will certainly have negative after effects on the due process rights of the foreign nationals in their courtrooms,” she said.

Until now, how many hearings a judge schedules each day has been up to the judges themselves. Often, judges schedule two such hearings a day, experts say.

Jeffrey Chase, a former immigration judge and now an immigration attorney, said the instructions to schedule three could lead to judges feeling forced to speed through hearings.

“If a judge is going to think: ‘let me do [the] right thing and have an eight-hour hearing, or I’ve got my kids’ tuition I have to pay, I’m going to do what they want me to do,’” he said. “It’s the next step in taking away immigration judges’ independence, making them choose between job security and due process.”

Unlike federal judges who are given lifetime appointments, immigration court judges are employees of the Department of Justice. In his role overseeing the court, Sessions has been vocal in cutting down the backlog of deportation cases.

To that end, in March, judges were given benchmarks on how many days they should take to complete certain cases and how many cases they should finish every year beginning on Oct. 1.

Dana Marks, a spokesperson for the National Association of Immigration Judges, told BuzzFeed News that she could not confirm or deny the report. Marks, however, said that their association is “deeply concerned any time” there is an encroachment on judges’ ability to manage their dockets.

“Micro-managing our dockets from afar does not help us to do our job more efficiently and effectively,” she said, “it hinders us.”

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Of course demanding that Immigration Judges schedule additional cases is NOT “mere administration” or “value neutral.” Given the clear anti-immigrant, “blame the victims and the judges” message delivered by Sessions, it’s basically saying “most of the cases are easy denials — get the lead out and move ‘em out.”

A really good Immigration Judge can do a maximum of two full contested cases per day. A thorough job on a “contested merits case” including delivery of oral decision takes 3-4 hours. And, frankly, many Immigration Judges can’t fairly complete two cases.

That doesn’t mean that they aren’t working hard or good judges; it’s just a “fact of life” that judges are human and work at different paces. Also the preparation of the parties and whether or not the case requires an interpreter (obviously, cases in English go more quickly), things over which a judge has no control, enter into it. Indeed, judges purporting to complete more than two full contested cases per day are almost certainly cutting corners, doing a substandard job, or denying Due Process to the respondents.

Sessions, through a toxic combination of ignorance, incompetence, and gross bias is destroying what is left of Due Process in the Immigration Courts. Time for the Article III Courts to step in, oust Sessions from control on ethical grounds (he is a living, breathing, violation of judicial ethics), and appoint a “Special Master” to run the system until Congress steps up and creates an independent US Immigration Court.

Otherwise, one way or another, the Article IIIs will find themselves destroyed by the mess Sessions is intentionally creating in the Immigration Courts. The Article IIIs can’t “run and hide” from the “Sessions Debacle.” Eventually, they are going to be sucked into the legal, ethical, and moral morass Sessions is creating.

In the period leading up to World War II, the German courts not only failed to stand up to Hitler, but actually willingly joined in his racist, anti-semitic program that eventually led to the Holocaust. History didn’t let them off the hook. Where will the Article IIIs stand in the Trump/Sessions White Nationalist assault on the Constitution and the rule of law?

PWS

08-24-18

INSIDE EOIR: FOIA REVEALS THAT DURING “JUDICIAL TRAINING,” BIA APPELLATE IMMIGRATION JUDGE ROGER PAULEY INSTRUCTED FELLOW JUDGES ON HOW TO FIND INDIVIDUALS REMOVABLE BY AVOIDING THE LAW!

https://www.hoppocklawfirm.com/foia-results-immigration-judges-conference-materials-for-2018/

)

Here’s what Attorney Matthew Hoppock, whose firm made the FOIA request, had to say about Judge Pauley’s presentation:

Developments in Criminal Immigration and Bond Law:

Slides – Developments in Criminal Immigration and Bond Law

This presentation is really striking, because Board Member Roger Pauley appears to be instructing the IJs not to apply the “categorical approach” when it doesn’t lead to a “sensible result.” The “categorical approach” is mandatory, and the Supreme Court has repeatedly had to reverse the BIA and instruct them to properly apply it. So, it’s definitely disheartening to see this is the instruction the IJs received at their conference this summer on how to apply the categorical approach:

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Can’t say this is unprecedented. I can remember being astounded and outraged by some past presentations that essentially focused on “how to find the respondent not credible and have it stand up in court,” “how to deny claims establishing past or future persecution by invoking ‘no-nexus’ grounds,” and “how to find proposed ‘particular social groups non-cognizable’ under the BIA’s three-part test.”

I also remember a BIA Judge essentially telling us to ignore a previous “outside expert” panel that provided evidence that governments in the Northern Triangle were stunningly corrupt, politically beholden to gangs, and totally incapable of protecting the population against targeted gang violence.

Another colleague gave a stunningly tone-deaf presentation in which they referred to OIL and ICE as “us” and the respondents as “them.”

But, presentations like Judge Pauley’s are particularly troubling in the context of a so-called “training conference” where the “keynote speech” by the judges’ titular “boss” Jeff Sessions touted his decision removing asylum protections from battered women, warned judges to follow his precedents, emphasized increasing “volume” as the highest priority, and otherwise notably avoided mentioning the due process rights of respondents, the need to insure protection for asylum seekers, or the obligation to follow decisions of the Article III Courts (the latter has been, and remains, a chronic problem for EOIR).

Many of the Immigration Judges were recently hired, attending their first national conference. What message do you think they got about how to be successful in the “Age of Trump & Sessions?” What message did they get when a vocal minority of their colleagues improperly “cheered” the removal of protections for vulnerable refugee women? How would YOU like to be a foreign national fighting for your life in a system run by Jeff Sessions?

Right on cue, EOIR provides another powerful example of why Professor Maureen Sweeney was right in her recently posted article: the Article III Courts should NOT be giving the BIA or Sessions “Chevron deference.”

PWS

08-23-18

PROFESSOR MAUREEN SWEENEY ON WHY THE BIA DOESN’T DESERVE “CHEVRON” DEFERENCE – JEFF SESSIONS’S ALL OUT ATTACK ON THE INDEPENDENCE OF THE IMMIGRATION JUDICIARY IS EXHIBIT 1!

http://lawprofessors.typepad.com/immigration/2018/08/immigration-article-of-the-day-enforcingprotection-the-danger-of-chevron-in-refugee-act-cases-by-mau.html

Go on over to ImmigrationProf Blog at the above link for all of the links necessary to get the abstract as well as the full article. Among the many current and former Immigration Judges quoted or cited in the article are Jeffrey Chase, Ashley Tabaddor, Dana Marks, Lory Rosenberg, Robert Vinikoor, and me. (I’m sure I’m missing some of our other colleagues; it’s a very long article, but well worth the read.)

In an article full of memorable passages, here is one of my favorites:

Full enforcement of the law requires full enforcement of provisions that grant protection as well as provisions that restrict border entry. This is the part of “enforcement” that the Department of Justice is not equipped to fully understand. The agency’s fundamental commitment to controlling unauthorized immigration does not allow it a neutral, open position on asylum questions. The foundational separation and balance of powers concerns at the heart of Chevron require courts to recognize that inherent conflict of interest as a reason Congress is unlikely to have delegated unchecked power on refugee protection to the prosecuting agency. In our constitutional structure, the courts stand as an essential check on the executive power to deport and must provide robust review to fully enforce the congressional mandate to protect refugees. If the courts abdicate this vital function, they will be abdicating their distinctive role in ensuring the full enforcement of all of our immigration law—including those provisions that seek to ensure compliance with our international obligations to protect individuals facing the danger of persecution.

This is a point that my friend and colleague Judge Lory Rosenberg made often during our tenure together on the BIA. All too often, her pleas fell on deaf ears.

The now abandoned pre-2001 “vision statement” of EOIR was “to be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Nothing in there about “partnering” with DHS to remove more individuals, fulfilling quotas, “sending messages to stay home,” securing the border, jacking up volume, deterring migration, or advancing other politically motivated enforcement goals. Indeed, the proper role of EOIR is to insure fair and impartial adjudication and Due Process for individuals even in the face of constant pressures to “just go along to get along” with a particular Administration’s desires to favor the expedient over the just.

Under all Administrations, the duty to insure Due Process, fairness, full protections, and the granting to benefits to migrants under the law is somewhat shortchanged at EOIR in relation to the pressure to promote Executive enforcement objectives. But, the situation under the xenophobic, disingenuous, self-proclaimed “Immigration Enforcement Czar” Jeff Sessions is a true national disgrace and a blot on our entire legal system. If Congress won’t do its job by removing the Immigration Courts from the DOJ forthwith, the Article III courts must step in, as Maureen suggests.

PWS

08-23-18

“OUR GANG” LEADER HON. JEFFREY S. CHASE QUOTED BY NICOLE NAREA IN LAW 360 RE: L-A-B-R- MESS!

But Jeffrey Chase, a former immigration judge and senior legal adviser to the BIA, said that the attorney general’s ruling is more likely to hinder efficient case adjudications. He said that immigration judges are already facing pressure to meet case completion quotas imposed by the Executive Office of Immigration Review earlier this year, and they have been forced to double-book hearings, meaning that cases will, by necessity, have to be continued.

“Under this latest ruling, judges will now have to write lengthy, detailed decisions for each continuance, an unrealistic expectation where judges must also complete three or more full hearings a day,” he said. “Some judges report receiving 10 or more motions for continuance a day, and lack the time and resources to write lengthy decisions on each while also hearing a full docket of cases.”

. . . .

Chase said that the decision’s “emphasis on efficiency over justice is particularly callous” given that, for many asylum applicants in immigration court, deportation may be a “death sentence.” He also pointed out that the decision does not seem to apply to continuances requested by U.S. Immigration and Customs Enforcement.

“It is unfair to require noncitizens seeking immigration status to demonstrate good cause for a continuance, while allowing ICE continuances for avoidable reasons such as misplacing the file, failing to obtain a needed document or not having adjudicated a petition in time,” he said.

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Those of you with access can read Nicole’s full article over at Law 360.

Of course as Judge Chase says L-A-B-R- will not “promote judicial efficiency.” Far from it!

Immigration Judges will have to spend more time writing decisions to justify granting, as well as denying, continuances. That means less time for merits cases. The BIA will see an increase in “interlocutory appeals” from both sides, but particularly from DHS. Again, this takes time away from work on the merits appeals, which is why the BIA quite properly discouraged such interlocutory appeals in the first place. And, denial of a continuance to a respondent, particularly when it involves finding an attorney, attorney preparation, or obtaining evidence or witnesses, is an appealable due process issue on petitions for review to the Article III courts. Consequently, expect plenty of remands from the Circuit Courts as Immigration Judges and BIA Appellate Immigration Judges are pushed to churn out more denials and final orders of removal under Sessions’s “tilted field” approach.

As Jeffrey also points out, DHS requests and gets many continuances for routine matters like failure to have files or missing evidence to support the charges. Moreover, in L-A-B-R- Sessions totally ignores one of the main culprits for today’s backlog: Aimless Docket Reshuffling” (“ADR”) by EOIR often to accommodate the enforcement aims of DHS or politicos at the DOJ.

“Just pedal faster gimmicks” and having unqualified politicos tell judges how to manage dockets and run their courtrooms are a prescription for failure. The only question is how big the train wreck caused by this hunk of Sessions’s malfeasance will be!

Thanks for speaking out, Jeffrey. And thanks for your coverage, Nicole.

PWS

08-21-18

AILA BLASTS SESSIONS’S PERVERSION OF JUSTICE, DUE PROCESS, & JUDICIAL INDEPENDENCE — THE CONTINUING TRAVESTY OF MATTER OF L-A-B-R-!

https://www.aila.org/advo-media/press-releases/2018/trump-administration-further-undermines-judicial

Trump Administration Further Undermines Judicial Independence

AILA Doc. No. 18081736 | Dated August 17, 2018

CONTACTS:

George Tzamaras
202-507-7649
gtzamaras@aila.org Belle Woods
202-507-7675
bwoods@aila.org

WASHINGTON, DC – On August 16, the Attorney General of the United States issued a precedent-setting decision, Matter of L-A-B-R, that limits the discretion of immigration judges to grant continuances. By restricting the court’s use of a vital docketing tool, the decision further erodes judicial independence and will pressure judges to deny more continuances at the expense of due process.

AILA President Anastasia Tonello responded, “With yesterday’s decision, the Attorney General has tightened the vise on immigration judges even further by interfering with an important case management tool that judges use to ensure cases are resolved fairly and justly. Every day, people who are eligible for relief must come before the immigration court and request a continuance until U.S. Citizenship and Immigration Services (USCIS) is able to make a decision. People who are eligible for permanent residence based on marriage to a U.S. citizen, or for protection as cooperating victims of a serious crime, may be deported unjustly if the judge is blocked from granting them a continuance. Justice cannot be dispensed on an assembly line, but Matter of L-A-B-R- seeks to do just that by pressuring judges to deny continuances and move cases rapidly through the system without due regard for potential relief.”

AILA Executive Director Benjamin Johnson stated, “While playing the role of both prosecutor and judge, the Attorney General continues to perpetuate the false narrative that immigrants are to blame for the long-standing inefficiencies that plague the immigration court system while rewriting our nation’s immigration laws. This decision is especially troubling because it will penalize people for something they simply cannot control: the notoriously lengthy USCIS processing times. Matter of L-A-B-R- is yet another reason why Congress must pass legislation establishing the immigration court as an Article I court separate from the Justice Department. Until Congress acts, the Attorney General will continue to encroach upon the independence of the courts, forcing judges to order people removed without a fair process. Congress must stop the administration from turning immigration courts into yet another enforcement agency.”

For more information about the immigration court system, AILA’s page on the issue can be accessed at http://www.aila.org/immigrationcourts.

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

Cite as AILA Doc. No. 18081736.

CONTACTS:
George Tzamaras 202-507-7649 gtzamaras@aila.org	Belle Woods 202-507-7675 bwoods@aila.org

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Where and when will the “deconstruction” of Constitutional Due Process End?

We need regime change!

PWS

08-17-18

“OUR GANG OF RETIRED US IMMIGRATION JUDGES” ISSUES STRONG CONDEMNATION OF SESSIONS’S LATEST ASSAULT ON DUE PROCESS & THE INDEPENDENCE OF US IMMIGRTION JUDGES IN MATTER OF L-A-B-R-!

https://www.aila.org/infonet/retired-ijs-former-bia-statement-matter-of-l-a-b-r?utm_source=Recent%20Postings%20Alert&utm_medium=Email&utm_campaign=RP%20Instant

Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to AG’s Decision in Matter of L-A-B-R-

August 17, 2018

As former Immigration Judges and Members of the BIA with many decades of combined experience on thebench, we must expose the Attorney General’s latest blow to judicial independence in his decision in Matter of L-A-B-R-.

There is no question that the Immigration Courts are currently overwhelmed by a backlog of more than 700,000 pending cases. Facing the imposition of unreasonable case completion quotas, many Immigration Judges presently feel forced to double-book hearings. One of our members who recently left the bench states that judges at present may receive ten to fifteen motions for continuance a day. Sessions’s latest decision would force each judge to write lengthy, highly detailed decisions for each of these while still trying to complete three or more full hearings a day. Of course, the implementation of this latest decision is entirely unrealistic. Furthermore, the decision imposes no such requirements in instances where DHS seeks a continuance (often for avoidable reasons such as its inability to locate the file or to have adjudicated a petition in time).

It should be remembered that many of the cases before the Immigration Courts involve individuals whose lives are at risk in their home countries. As the President Emeritus of the group’s union has said,Immigration Judges hear death penalty cases under traffic court conditions. In his decision, Sessions usesthe words “efficient,” “efficiency,” or “inefficient” 12 times. The word “justice” (other than in the name ofthe agency he heads, or as a job title) appears only once.

Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets. While judges share the administration’s concern over the high volume of cases, they should be allowed a say inproposing solutions that will not infringe on their independent judgment or their ability to afford due process.

Sincerely,

Hon. Steven Abrams Hon. Jeffrey S. Chase Hon. Bruce J. Einhorn Hon. John F. Gossart, Jr. Hon. Rebecca Jamil Hon. William P. Joyce Hon. Carol King

Hon. Margaret McManus Hon. Charles Pazar
Hon. Lory D. Rosenberg Hon. Susan Roy

Hon. Paul W. Schmidt Hon. Polly A. Webber

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AILA Doc. No. 18081776. (Posted 8/17/18)

List of Retired Immigration Judges and Former BIA Members

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration LawyersAssociation’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

Honorable Rebecca Jamil

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a

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The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.
AILA Doc. No. 18081776. (Posted 8/17/18)
Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

Judge Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.

Honorable Charles Pazar

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blogimmigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served

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AILA Doc. No. 18081776. (Posted 8/17/18)

as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.

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It’s an honor to be part of this group of my distinguished colleagues and to stand in opposition to Sessions’s “deconstruction” of Due Process and fundamental fairness in our United States Immigration Courts. Court systems work best when we allow judges to function as judges, without this type of political interference by non-judges. The latter is a responsible for “Aimless Docket Reshuffling” — one of the key causes of the backlog which has developed and increased over the last three Administrations.

PWS

08-17-18

MATTER OF L-A-B-R-, 27 I&N DEC. 405 (AG 2018) – SESSIONS’S LATEST APPARENT ETHICAL LAPSE TILTS MOTIONS TO CONTINUE IN FAVOR OF DHS – Is The Purpose Of The Due Process Clause REALLY To Protect DHS Enforcement From Individuals Seeking Justice?

3933-LABR

Matter of L-A-B-R-, 27 I&N Dec. 405 (AG 2018)

EOIR HEADNOTE:

(1) An immigration judge may grant a motion for a continuance of removal proceedings only “for good cause shown.” 8 C.F.R. § 1003.29.

(2) The good-cause standard is a substantive requirement that limits the discretion of immigration judges and prohibits them from granting continuances for any reason or no reason at all.

(3) The good-cause standard requires consideration and balancing of multiple relevant factors when a respondent alien requests a continuance to pursue collateral relief from another authority—for example, a visa from the Department of Homeland Security. See Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009).

(4) When a respondent requests a continuance to pursue collateral relief, the immigration judge must consider primarily the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.

(5) The immigration judge should also consider relevant secondary factors, which may include the respondent’s diligence in seeking collateral relief, DHS’s position on the motion for continuance, concerns of administrative efficiency, the length of the continuance requested, the number of hearings held and continuances granted previously, and the timing of the continuance motion.

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TAKEAWAYS:

ETHICS TAKES A HOLIDAY: Sessions is an unapologetic shill for DHS Enforcement, a party to all Immigration Court proceedings. Thus, he is precluded by judicial and legal ethics from acting in a judicial capacity in any individual Immigration Court case. Any other lawyer blatantly disregarding the ethics codes by acting in a matter in which he clearly has a conflict of interest would be removed from all DHS cases and disciplined. How does he get away with it?
BLAMING THE VICTIMS: As usual, Sessions makes up a bogus scenario placing the blame for Immigration Court backlogs on the victims of the Government’s “Aimless Docket Reshuffling:” migrants, their courageous and hard working attorneys, and the Immigration Judges and BIA Judges themselves.
WHITEWASHING “AIMLESS DOCKET RESHUFFLING:” As anyone familiar with the system knows, the real problem generating huge backlogs is politicized “Aimless Docket Reshuffling,” (“ADR”) engineered by DOJ, which includes mindless and costly “judicial details,” judicial reassignments, failure to promptly fill judicial vacancies, and perhaps most significantly, ever-changing “priorities” imposed by politicos over the last three Administrations. In fact, individual Immigration Judges have virtually no control over their own dockets. But, Sessions blames the victims of ADR, rather than the “perps” (of which he, of course, is “Perp #1”).
INCREASING THE BACKLOG: Sessions’s decision is an open invitation for DHS to file interlocutory appeals challenging grants of continuances by Immigration Judges. It’s a complete waste of time and grotesque abuse of judicial resources. There’s actually a good reason for the BIA’s “disfavoring” interlocutory appeals of this type. The more time the system spends on “non-dispositive” motions, the less time there is for deciding cases on the merits.
ABUSE OF JUDICIAL RESOURCES: This decision means that Immigration Judges will have to spend more time justifying decisions to grant or deny continuances, which takes time away from making decisions on the merits. And, I’m relatively sure they will receive no “credit” under Sessions’s proposed “quota system” for decisions on motions for continuance.
DUE PROCESS BE DAMNED: Although Sessions appears tone-deaf to the purpose and meaning of the U.S. Constitution, the Due Process Clause is there to protect individuals (and respondents in Immigration Court are particularly vulnerable individuals) from Government overreach, not to protect Government enforcement. By favoring DHS enforcement over private litigants, Sessions basically turns the Constitution on its head (sadly, not for the first time).
A LEVEL PLAYING FIELD?NOT LIKELY: One of the abuses driving the backlog is the unfair practice of EOIR telling counsel who show up as scheduled for merits cases, well prepared, often with witnesses in tow, that their cases have been “rescheduled” to a much later date without any notice or chance to object from them. Does Sessions’s new-found concern about continuances means that the BIA will favorably consider interlocutory appeals from private attorneys and their clients whose cases have been aimlessly rescheduled without notice to make way for the “new DOJ priority of the day?”
A FAIR APPLICATION OF CRITERIA? NOT LIKELY: Given the technical problems and disorder within EOIR, the frequency of missing files, and even missing evidence of removability, at DHS, the delays in DHS Filing Notices To Appear, aimless movement of detainees to “save money,” failure to bring detainees to scheduled hearings, failure to promptly check fingerprints, etc., I suspect that an honest application of the AG’s “revised criteria” actually would favor the respondent in many cases. But, that certainly isn’t the message Sessions is delivering, So I’m skeptical as to whether these criteria will be fairly applied.
ANOTHER CHEAP SHOT AT JUDICIAL INDEPENDENCE: While some Immigration Judges undoubtedly do a better job of adjudicating motions than others, unwarranted continuances by Immigration Judges are not a major problem in the Immigration Court system (although “ADR” by the DOJ most definitely is). Any system that doesn’t trust its judges and its appellate authority to deal with continuances is, by definition, dysfunctional. Although Sessions has no expertise in immigration adjudication, his clear message is that Immigration Judges are not to be trusted; hence the need for “Mickey Mouse” unnecessary “guidance” such as this decision.
A BAD JOKE, NOT A COURT SYSTEM: Sessions continually perverts what is supposed to be a fair “Due Process” court system. Congress seems to have punted. Will the Article IIIs stop this travesty or “go along to get along?” Only time will tell.

PWS

08-17-18

EOIR ANNOUNCES 23 NEW IMMIGRATION JUDGE APPOINTMENTS – TREND OF APPOINTING LARGELY FROM GOVERNMENT BACKGROUNDS CONTINUES!

NOTICE

U.S. Department of Justice

Executive Office for Immigration Review

Office of Policy
5107 Leesburg Pike
Falls Church, Virginia 22041

Contact: Communications and Legislative Affairs Division

Phone: 703-305-0289 Fax: 703-605-0365PAO.EOIR@usdoj.gov @DOJ_EOIR

www.justice.gov/eoir

Aug. 15, 2018

Executive Office for Immigration Review Swears in 23 Immigration Judges

Stuart D. Alcorn, Immigration Judge, Pearsall Immigration Court

Attorney General Jeff Sessions appointed Stuart D. Alcorn to begin hearing cases in August 2018. Judge Alcorn earned a Bachelor of Arts degree in 1994 from the University of Southern Mississippi and a Juris Doctor in 2004 from the Thurgood Marshall School of Law at Texas Southern University. From 2008 to 2018, he served as assistant chief counsel for Immigration and Customs Enforcement, Department of Homeland Security in San Antonio, Texas. From 2008 to 2017, he also served as a military defense attorney in the Judge Advocate General’s (JAG) Corps, U.S. Army Reserve. From 2005 to 2008, he was a military prosecutor and command judge advocate in the JAG Corps at Fort Benning, Ga. In addition to military duties, during 2005 to 2008, he was special assistant U.S. attorney in the U.S. Attorney’s Office in Columbus, Ga. In 2004, he was a law clerk for Ron Woods’ legal practice in Houston. From 2002 to 2004, he was a student clerk in the U.S. Attorney’s Office in Houston. Judge Alcorn is a member of the State Bar of Texas.

Robert A. Fellrath, Immigration Judge, Los Angeles Immigration Court

Attorney General Jeff Sessions appointed Robert A. Fellrath to begin hearing cases in August 2018. Judge Fellrath earned a Bachelor of Arts degree in 1996 and a Juris Doctor in 1999, both from the University of Notre Dame. From 2008 to 2018, he was assistant U.S. attorney for the U.S. Attorney’s Office in Tucson, Ariz. From 2007 to 2008, he was assistant federal public defender for the Office of the Federal Public Defender in Burlington, Vt. From 2000 to 2018, he served in different roles, locations, and increasing levels of seniority with the Judge Advocate General’s Corps, U.S. Army, in both active and reserve duty. These assignments were in San Antonio, Texas; Kaiserslautern, Germany; Fort Hood, Texas; and Fort Huachuca, Ariz. Judge Fellrath is a member of the State Bar of Michigan.

Kathleen French, Immigration Judge, Otero Immigration Court

Attorney General Jeff Sessions appointed Kathleen French to begin hearing cases in August 2018. Judge French earned a Bachelor of Science degree in 1982 from the U.S. Coast Guard Academy and a Juris Doctor in 1997 from George Mason University. From 2000 to 2018, she

Communications and Legislative Affairs Division

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EOIR Swears in 23 Immigration Judges Page 2

was assistant chief counsel and deputy chief counsel with the Immigration and Customs Enforcement, Department of Homeland Security in several locations: Denver; Lumpkin, Ga.; and Miami, Orlando, and Tampa, Fla. From 1999 to 2000, she was a judicial law clerk (JLC) with the Executive Office for Immigration Review, Department of Justice in Miami. From 1997 to 1999, she was a JLC with the Third District Court of Appeal, also in Miami. From 1998 to 2013, she served in several reserve-duty roles with the Judge Advocate General’s Corps, U.S. Army. From 1994 to 1982, she served on active duty in the U.S. Coast Guard as a shipboard law enforcement officer. Judge French is a member of The Florida Bar.

Daniel B. Gilbert, Immigration Judge, Harlingen Immigration Court

Attorney General Jeff Sessions appointed Daniel B. Gilbert to begin hearing cases in August 2018. Judge Gilbert earned a Bachelor of Talmudic Law degree in 2004 from the New Israel Rabbinical College and a Juris Doctor in 2008 from the Benjamin N. Cardozo School of Law. He was assistant chief counsel with the Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security from 2012 to 2016 in Harlingen, Texas, and from 2016 to 2018 in Baltimore. From 2009 to 2011, he was a staff attorney with the U.S. Court of Appeals for the Second Circuit in New York. In 2007, he was a student clerk with the U.S. District Court in Newark, N.J., as well as a judicial intern with the New York State Supreme Court of Kings County in Brooklyn, N.Y. Judge Gilbert is a member of the New York and New Jersey State Bars.

Lena Golovnin, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Lena Golovnin to begin hearing cases in August 2018. Judge Golovnin earned a Bachelor of Arts degree in 2002 from Hunter College and a Juris Doctor in 2008 from the Thomas M. Cooley Law School. From 2010 to 2018, she was assistant chief counsel for the Office of the Chief Counsel, Immigration and Customs Enforcement, Department of Homeland Security in New York, N.Y. From 2009 to 2010, she was attorney advisor for the Executive Office for Immigration Review (EOIR), Department of Justice (DOJ), also in New York, N.Y. From 2008 to 2009, she was a judicial law clerk and later attorney advisor for EOIR, DOJ in San Antonio, Texas. Judge Golovnin is a member of the New York State Bar and the State Bar of Michigan.

Cynthia Gordon, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Cynthia Gordon to begin hearing cases in August 2018. Judge Gordon earned a Bachelor of Arts degree in 1990 from Hamilton College and a Juris Doctor in 1993 from Cornell Law School. From 2007 to 2018, she was assistant chief counsel in the Office of the Principal Legal Advisor, Immigration and Customs Enforcement, Department of Homeland Security in New York, N.Y. From 2001 to 2007, she was special assistant attorney general in the New York State Attorney General’s Office in New York City. From 1994 to 2001, she was assistant district attorney in the New York Country District Attorney’s Office, also in New York, N.Y. From 1993 to 1994, she was a judicial clerk in the Superior Court of New

Communications and Legislative Affairs Division

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EOIR Swears in 23 Immigration Judges Page 3

Jersey in Cape May, N.J. Judge Gordon is a member of the New York and New Jersey State Bars.

Nathan L. Herbert, Immigration Judge, El Paso Immigration Court

Attorney General Jeff Sessions appointed Nathan L. Herbert to begin hearing cases in August 2018. Judge Herbert earned a Bachelor of Science degree in 2003 from Western Michigan University and a Juris Doctor in 2008 from the Michigan State University College of Law. From 2015 to 2018, he was deputy chief counsel for the Office of Chief Counsel, Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in San Antonio, Texas. From 2009 to 2015, he was an assistant chief counsel, Office of Chief Counsel, ICE, DHS, in Denver. From 2008 to 2009, he was attorney advisor for the Executive Office for Immigration Review, Department of Justice, also in Denver. Judge Herbert is a member of the Colorado Bar.

Howard C. Hom, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Howard C. Hom to begin hearing cases in August 2018. Judge Hom received a Bachelor of Arts degree in 1973 from the University of California, Los Angeles, and a Juris Doctor in 1976from Loyola Law School. In 2018, he served as an administrative law judge (ALJ) for the California Unemployment Insurance Appeals Board. From 2016 to 2018, he was a self-employed attorney specializing in immigration and nationality law. From 2009 to 2016, he was ALJ for the State of California. From 1981 to 2009, he was an attorney in private practice, in Los Angeles. From 1995 to 2008, he was an adjunct professor in immigration law at the Whittier Law School, Los Angeles. From 1976 to 1981, he was a general and trial attorney with the former Immigration and Naturalization Service, Department of Justice in Los Angeles. Judge Hom is a member of the State Bar of California.

Natalie B. Huddleston, Immigration Judge, Los Angeles Immigration Court

Attorney General Jeff Sessions appointed Natalie B. Huddleston to begin hearing cases in August 2018. Judge Huddleston earned a Bachelor of Arts degree in 2001 and a Juris Doctor in 2004, both from the University of Notre Dame. From 2014 to 2018, she was assistant U.S. attorney in Phoenix. From 2013 to 2014, she was deputy county attorney with the Pinal County Attorney’s Office in Florence, Ariz. From 2008 to 2013, she was assistant attorney general with the Office of the Arizona Attorney General in Phoenix. From 2004 to 2008, she was deputy county attorney with the Maricopa County Attorney’s Office, also in Phoenix. Judge Huddleston is a member of the State Bar of Arizona.

David C. Koelsch, Immigration Judge, Baltimore Immigration Court

Attorney General Jeff Sessions appointed David C. Koelsch to begin hearing cases in August 2018. Judge Koelsch earned a Bachelor of Arts degree in 1988 from Michigan State University and a Juris Doctor in 1994from Catholic University. From 2017 to 2018, he was a supervisory asylum officer with U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS), in Arlington, Va. From 2015 to 2017, he was an appeals officer with

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the Administrative Appeals Office, USCIS, DHS. From 2002 to 2015, he was a professor and director of the Immigration Law Clinic at the University of Detroit Mercy School of Law. From 2000 to 2005, he was legal director of Freedom House. From 1998 to 2000, he was associate attorney with Dykema PLLC. From 1996 to 1998, he was associate attorney with Hopkins & Sutter. From 1995 to 1996, he was a law clerk for the Alaska Superior Court. He is a member of the Michigan State Bar.

W. Scott Laragy, Immigration Judge, Oakdale Immigration Court

Attorney General Jeff Sessions appointed W. Scott Laragy to begin hearing cases in August 2018. Judge Laragy earned a Bachelor of Arts degree in 1991 and a Juris Doctor in 1994, both from Loyola University New Orleans. He has served in the Judge Advocate General’s (JAG) Corps for the U.S. Navy since 1995, first on active duty until 2007, and is currently serving in the reserves. From 2017 to 2018, he was counsel to the director in the Executive Office for United States Attorneys (EOUSA), Department of Justice (DOJ), in Washington, D.C. From 2012 to 2017, he was legislative counsel for the EOUSA, DOJ. From 2007 to 2012, he was assistant U.S. attorney for the U.S. Attorney’s Office in New Orleans. Judge Laragy is a member of the Louisiana State and the District of Columbia Bars.

Zakia Mahasa, Immigration Judge, Baltimore Immigration Court

Attorney General Jeff Sessions appointed Zakia Mahasa to begin hearing cases in August 2018. Judge Mahasa earned a Bachelor of Business Administration degree in 1981from the University of Maryland and a Juris Doctor in 1986 from the University of Maryland, Carey School of Law. From 1997 to 2018, she was magistrate in the Circuit Court for Baltimore. From 1992 to 1994, she was a staff attorney and, from 1994 to1997, she was a supervising attorney, both for the House of Ruth domestic violence legal clinic, also in Baltimore. From 1987 to 1992, she was an attorney with the Legal Aid Bureau of Maryland. Judge Mahasa is a member of the Maryland State Bar.

Michael G. McFarland, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Michael G. McFarland to begin hearing cases in August 2018. Judge McFarland earned a Bachelor of Arts degree in 2004from New York University and a Juris Doctor in 2007from New York University School of Law. From 2011 to 2018, he was assistant chief counsel and then deputy chief counsel for Immigration and Customs Enforcement, Department of Homeland Security, in New York, N.Y. From 2007 to 2011, he was a staff attorney with the U.S. Court of Appeals for the Second Circuit, also in New York, N.Y. Judge McFarland is a member of the New York State Bar.

Patrick M. McKenna, Immigration Judge, Chicago Immigration Court

Attorney General Jeff Sessions appointed Patrick M. McKenna to begin hearing cases in August 2018. Judge McKenna earned a Bachelor of Arts degree in 1998 from DePauw University and a Juris Doctor in 2001 from University of Notre Dame Law School. From 2006 to 2018, he was

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assistant chief counsel and associate legal advisor for Immigration and Customs Enforcement, Department of Homeland Security, in Chicago and Washington, D.C. From 2002 to 2006, he was assistant state’s attorney for the Will County State’s Attorney in Joliet, Ill. From 2001 to 2002, he was an associate with Eichorn and Eichorn in Hammond, Ind. Judge McKenna is a member of the Illinois and Indiana State Bars.

Nancy E. Miller, Immigration Judge, Los Angeles Immigration Court

Attorney General Jeff Sessions appointed Nancy E. Miller to begin hearing cases in August 2018. Judge Miller earned a Bachelor of Arts degree in 1974 from the University of California, Los Angeles, and a Juris Doctor in 1984 from Southwestern University School of Law. From 1998 to 2018, she was attorney and managing partner of Reeves Miller Zhang & Diza in Pasadena, Calif. From 1988 to 1998, she was a solo practitioner in private practice. From 1986 to 1988, she was associate attorney with the Law Office of James LeTourneau. From 1985 to 1986, she was law clerk and associate attorney with the Law Office of Kehrela Hodkinson. Judge Miller is a member of the State Bar of California.

Angela Munson, Immigration Judge, LaSalle Immigration Court

Attorney General Jeff Sessions appointed Angela Munson to begin hearing cases in August 2018. Judge Munson earned a Bachelor of Arts degree in 1990 from Georgia State University and a Juris Doctor in 1994from Tulane Law School. From 2005 to 2018, she was assistant U.S. attorney with the Office of the U.S. Attorney, Northern District of Georgia. From 2011 to 2012, she was detailed as resident legal advisor to the U.S. Embassy in Baghdad, Iraq. From 1998 to 2005, she was assistant U.S. attorney with the Organized Crime and Drug Enforcement Task Force, Office of the U.S. Attorney, Northern District of Georgia. From 1994 to 1998, she was assistant district attorney with the Office of the Fulton County District Attorney. Judge Munson is a member of the State Bar of Georgia.

Jonathan W. Owens, Immigration Judge, Cleveland Immigration Court

Attorney General Jeff Sessions appointed Jonathan W. Owens to begin hearing cases in August 2018. Judge Owens earned a Bachelor of Arts degree in 1997 from the University of Michigan and a Juris Doctor in 2005from Michigan State University, Detroit College of Law. From 2014 to 2018, he was an administrative law judge (ALJ) manager, and from 2007 to 2014, he was an ALJ both for the State of Michigan Licensing and Regulatory Affairs in Detroit. From 2003 to 2007, he was departmental analyst for the Office of Child Support, Michigan Department of Health and Human Services. Judge Owens is a member of the State Bar of Michigan.

Kaarina Salovaara, Immigration Judge, Chicago Immigration Court

Attorney General Jeff Sessions appointed Kaarina Salovaara to begin hearing cases in August 2018. Judge Salovaara earned a Bachelor of Arts degree in 1976 from Smith College and a Juris Doctor in 1980from the University of Virginia Law School. From 1991 to 2018, she was an assistant U.S. attorney in the U.S. Attorney’s Office, Criminal Division, Northern District of

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Illinois in Chicago. From 1981 to 1991, she was an associate and later a partner with Jenner & Block, also in Chicago. From 1980 to 1981, she was a clerk for Judge Barbara B. Crabb in the U.S. District Court for the Western District of Wisconsin. She is a member of the Illinois State Bar.

Eric J. Tijerina, Immigration Judge, San Antonio Immigration Court

Attorney General Jeff Sessions appointed Eric J. Tijerina to begin hearing cases in August 2018. Judge Tijerina earned a Bachelor of Arts degree in 1991 from the University of Texas at Austin, a Master of Business Administration in 1996 from Texas Christian University, and a Juris Doctor in 2006 from St. Mary’s University School of Law. From 2015 to 2018, he was a policy analyst with the Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security in Washington, D.C. From 2014 to 2015, he was associate director, Immigrant Children’s Legal Program, U.S. Committee for Refugees and Immigrants in Arlington, Va. From 2010 to 2014, he was director of legal programs, Refugee and Immigrant Center for Education and Legal Services in San Antonio, Texas. From 2008 to 2010, he was teaching clinical fellow and supervising attorney for the St. Mary’s University School of Law Immigration Clinic in San Antonio, Texas. From 2006 to 2008, he was lead attorney, Legal Orientation Program, Political Asylum Project of Austin, Texas. Judge Tijerina is a member of the State Bar of Texas.

Nelson A. Vargas-Padilla, Immigration Judge, Ulster Immigration Court

Attorney General Jeff Sessions appointed Nelson A. Vargas-Padilla to begin hearing cases in August 2018. Judge Vargas-Padilla earned a Bachelor of Arts degree in 1990 from the State University of New York at Albany and a Juris Doctor in 1994from the University at Buffalo School of Law. From 2016 to 2018, he was litigation and national security counsel for the Litigation and National Security Coordination Law Division, U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS), in Washington, D.C. From 2015 to 2016, he was transformation counsel and immigration officer for the Refugee Affairs Division, USCIS, DHS, in Kenya and Malaysia. From 2013 to 2016, he was transformation counsel for the Transformation Law Division, USCIS, DHS, also in Washington, D.C. From 2001 to 2007, he was assistant chief counsel; from 2007 to 2009, he was senior attorney; and from 2009 to 2013, he was deputy chief counsel for the Office of Chief Counsel, Immigration and Customs Enforcement, DHS, in Baltimore, Md. From 1996 to 2001, he was attorney advisor for the Board of Immigration Appeals, Executive Office for Immigration Review, Department of Justice in Falls Church, Va. Judge Vargas-Padilla is a member of the New Jersey State Bar.

Michael G. Walleisa, Immigration Judge, Miami Immigration Court

Attorney General Jeff Sessions appointed Michael G. Walleisa to begin hearing cases in August 2018. Judge Walleisa earned a Bachelor of Science degree in 1981from Philadelphia College of Textiles and Science and a Juris Doctor in 1985 from Temple University School of Law. From 1989 to 2018, he worked in several roles in the U.S. Attorney’s Office, Southern District of

Florida in Miami. From 2002 to 2018, he was assistant U.S. attorney with the National Security — more —

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Section. From 1996 to 2002, he was assistant U.S. attorney with the Civil Division. From 1993 to 1996, he was chief of the Narcotics and Violent Crimes Section. From 1992 to 1993, he was chief of the Trial Section. From 1991 to 1992, he was deputy chief of the Major Crimes Section. From 1990 to 1991, he was assistant U.S. attorney with the Organized Crime Section. From 1989 to 1990, he was assistant U.S. attorney with the Appeals/Major Crimes Sections. From 1985 to 1989, he was an attorney with the State Attorney’s Office in Dade County, Fla. Judge Walleisa is a member of the Florida Bar.

George J. Ward Jr., Immigration Judge, Falls Church Immigration Adjudication Center

Attorney General Jeff Sessions appointed George J. Ward Jr. to begin hearing cases in August 2018. Judge Ward earned a Bachelor of Arts degree in 1988 from Bucknell University and a Juris Doctor in 1993 from St. John’s University School of Law. From 1999 to 2018, he served in several positions with the Office of the Principal Legal Advisor, Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS) in both Arlington, Va., and Washington, D.C. From 2012 to 2018, he was deputy chief in the Office of Chief Counsel, ICE, DHS. From 2011 to 2012, he was deputy chief and then chief with the District Court Litigation Division. From 2010 to 2011, he was chief with the District Court Litigation Section. From 2007 to 2010, he was legislative counsel. From 2003 to 2007, he was an associate legal advisor. From 1999 to 2003, he was an assistant district counsel with the former Immigration and Naturalization Service, Department of Justice in New York, N.Y. From 1993 to 1999, he was an assistant district attorney with the Nassau County District Attorney’s Office in Mineola, N.Y. Judge Ward is a member of the New York and New Jersey State Bars.

Jason R. Waterloo, Immigration Judge, Los Angeles Immigration Court

Attorney General Jeff Sessions appointed Jason R. Waterloo to begin hearing cases in August 2018. Judge Waterloo earned dual Bachelor of Science degrees in 2004 from the Pennsylvania State University and a Juris Doctor in 2007 from the West Virginia University College of Law. From 2014 to 2018, he was an assistant chief counsel for the Office of Chief Counsel, Immigration and Customs Enforcement, Department of Homeland Security in Los Angeles. From 2008 to 2014, he was an assistant district attorney with the Berks County District Attorney’s Office in Reading, Pa. From 2007 to 2008, he was a judicial law clerk with the Northampton County Court of Common Pleas in Easton, Pa. Judge Waterloo is a member of the Pennsylvania Bar.

— EOIR —

Communications and Legislative Affairs Division

Congrats and good luck to all!

Remember, no matter what Jeff Sessions says, the job of being a good Immigration Judge is about impartiality, fairness, scholarship, respect, timeliness, teamwork, and Due Process for the individuals coming before the Immigration Court. Nothing else!

PWS

08-16-18

LEADING ACADEMICS FILE OPPOSITION TO JUDICIAL QUOTAS WITH SESSIONS – The Continuing Saga Of The Due-Process-Killing Move That Nobody But Sessions Wants!

https://commonwealthlaw.widener.edu/files/resources/letter-to-sessions-immigration-adjudication-with-s.pdf

Professor Jill Family

Commonwealth Professor of Law and Government Director, Law and Government Institute
Widener University Commonwealth Law School

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

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August 14, 2018

Honorable Jeff Sessions Attorney General
U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530

Dear Attorney General Sessions:

We are scholars and teachers of immigration law and of administrative law. We write to express our alarm about the Department of Justice’s new performance metrics for immigration judges. We believe the Department’s performance metrics are unacceptable and fear they are a part of larger goal to undermine the independence of the immigration courts.

Longstanding problems with immigration adjudication have simmered through both Republican and Democratic administrations.1 These problems have manifested in a tremendous backlog of cases awaiting adjudication: over 700,000 cases.2 The wait for a removal hearing can last years.3 The status quo is not acceptable and actions to reform the system are imperative.

Reforms, however, need to enhance fairness by protecting individual rights. Whether the adjudicating body is the Environmental Protection Agency, the Internal Revenue Service, or the Department of Justice in a removal proceeding, how government power is used against a respondent should be scrutinized. This concern is amplified in immigration law because Congress has eliminated federal court review of some issues. For many, the agency hearing before the Department of Justice is the only opportunity to seek statutory protections.

1 Our comments here focus on the Department of Justice’s proposed performance metrics for immigration judges, but there are other issues facing the immigration adjudication system, including a lack of access to counsel and the many types of diversions used to prevent an individual from reaching immigration court. SeeIngrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. PA. L. REV. 1 (2015); Jill E. Family, A Broader View of the Immigration Adjudication Problem, 23 GEO. IMMIGR. L.J. 595 (2009).2 Transactional Records Access Clearinghouse, Backlog of Pending Cases in Immigration Courts as of May 2018,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php.

3 Transactional Records Access Clearinghouse, Average Time Pending Cases Have Been Waiting in Immigration Courts as of May 2018,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog_avgdays.php.

Widener University Commonwealth Law School, 3800 Vartan Way, Harrisburg, PA 17110
t: 717-541-3911 f: 717-541-3966 e: jefamily@widener.edu w: commonwealthlaw.widener.edu

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The concept of fair process in implementing the rule of law is one of the most fundamental American principles. It is a pillar of meaningful democracy. The idea that the government should not deprive any person4 of life, liberty or property without first providing fair process is enshrined in the U.S. Constitution. The repercussions of a lack of fair procedure can be devastating. While it is incumbent on any federal administration to act efficiently, the adjudication process must be fair.

The fair process calculus demands an adjudicator who does not feel compelled to rule in a certain way due to unacceptable influences. The law itself may of course compel an adjudicator, but the scenario becomes very murky very quickly when an adjudicator has a personal stake in the outcome of a case.

Agency adjudicators are not Article III judges and never have had the full independence of federal court judges. Immigration Judges do not have even the job protections that other agency adjudicators enjoy, however.5 Immigration judges are attorney employees of the Department of Justice.6 The Department of Justice sets the conditions of employment, including location of employment and whether employment continues.7 A Department of Justice regulation, nevertheless, tells immigration judges to “exercise independent judgment and discretion” when making decisions.8 Also, the immigration judge position has evolved over time to make it more independent,9 even if it has not reached the ideal level of independence.10

Congress has tasked you, the Attorney General, with the management of the Department of Justice, including immigration adjudication. It is your duty to insist that fairness and independence are a part of the system. Agency adjudicators are by nature more accountable to the executive branch. But that does not mean that agency adjudicators should be mere vessels who fail to apply statutory standards or who apply the law subject

4 The Due Process Clause is not limited to citizens. U.S. CONST. amends. V, IV.
5 See Kent Barnett, Against Administrative Judges, 49 U.C. DAVIS L. REV. 1643, 1647 (2016).
6 8 C.F.R. § 1003.10(a).
7 See Board of Immigration Appeals: Procedural Reforms to Improve Case Management,
67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002) (codified at 8 C.F.R. pt. 3).
8 8 C.F.R. § 1003.10(b).
9 Sidney B. Rawitz, From Wong Yang Sung to Black Robes, 65 INTERPRETER RELEASES 453 (1988).
10 There are proposals, for example, to recreate immigration adjudication as an Article I court with greater autonomy from the executive branch. Christine Lockhart Poarch, The FBA’s Proposal to Create a Federal Immigration Court, THE FEDERAL LAWYER (April 2014), available at http://www.fedbar.org/Image- Library/Government-Relations/CH16/Proposed-Article-I-Immigration-Court.aspx; American Bar Association,Reforming the Immigration System (2010) at E9, available athttps://www.americanbar.org/content/dam/aba/migrated/media/nosearch/immigration_reform_executive_s ummary_012510.authcheckdam.pdf; American Immigration Lawyers Association, Resolution on Immigration Court Reform (2018), available at https://www.aila.org/File/DownloadEmbeddedFile/74919. See also Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 DUKE L.J. 1635, 1640 (2010) (recommending that immigration judges become administrative law judges and be relocated from the Department of Justice to an independent tribunal within the executive branch).

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to unfair influence or a conflict of interest. Independence and a lack of bias help to protect individual rights and to secure public confidence in the integrity of the process.

The Department of Justice should not conflate enforcement with adjudication. Immigration judges are not prosecutors. Immigration adjudication is different than other functions of the Department of Justice. Immigration judges hear cases initiated by the Department of Homeland Security.11 The Department of Homeland Security therefore decides who enters the immigration adjudication system. The Department of Justice is tasked not with enforcement, but rather with carefully evaluating another agency’s claims that an individual should be removed from the United States.12

The Department of Justice must adjust and rapidly respond to the work thrust upon it by the Department of Homeland Security. One tool to help improve the efficiency and operations of the immigration courts would be for the Department of Homeland Security to more carefully assess and vet the cases it chooses to bring forward. We urge you to work with the Department of Homeland Security to improve their procedures rather than expecting all management of enormous dockets to fall on the shoulders of the immigration judges.

Instead of providing adequate resources13 or implementing other case management tactics, the Department of Justice has proposed the case completion quotas. 14 We believe that these quotas show disregard for the importance of independence,15 including avoidance of a conflict of interest, in adjudication. The quotas seem to align with President Trump’s

11 Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 12 (2012), available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness- in-Immigration-Removal-Adjudication-Final-June-72012.pdf.
12 Congress has charged immigration judges with the duty to adjudicate charges of removal. 8 U.S.C. §1229a.13 The Administrative Conference of the United States has recognized the need for additional resources for immigration adjudication. See Administrative Conference Recommendation 2012-3 at 3, 5, available athttps://www.acus.gov/sites/default/files/documents/2012-3.pdf. We recognize that the Department of Justice has been hiring more immigration judges, but the number of judges has not kept pace with the workload. In 2012, there were 264 immigration judges and now there are approximately 330. Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 6 (2012),available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness-in- Immigration-Removal-Adjudication-Final-June-72012.pdf; (reporting 264 immigration judges in 2012); U.S. Department of Justice, Office of the Chief Immigration Judge, https://www.justice.gov/eoir/office-of-the- chief-immigration-judge (stating that there are approximately 330 immigration judges).

14 EOIR Performance Plan, available at http://cdn.cnn.com/cnn/2018/images/04/02/immigration-judges- memo.pdf.
15 We implore the Department of Justice to promote independence even outside the context of the quotas. A group of former immigration adjudicators recently objected to the Department’s removal of an immigration judge from a particular case and replacement with a supervisory judge who implemented the administration’s preferred outcome. Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Latest Attack on Judicial Independence, July 30, 2018, available at,https://www.aila.org/infonet/retired-ijs-former-bia-mems-attack-on-jud-independ.

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displeasure with the need for process in immigration cases. In response to a Republican proposal to add 375 immigration judges, he said, “We don’t want judges; we want security on the border.”16 He also characterized the Republican proposal as adding five or six thousand more judges (in actuality the legislation proposed adding 375 judges).17 He said that to add that many judges must involve graft.18 He also has claimed that there is something wrong with foreign nationals having lawyers represent them in immigration proceedings.19

Performance metrics for judges are not inherently objectionable. Careful data collection and analysis can be helpful for training adjudicators and for marshalling court resources. Immigration judges already are subject to qualitative evaluations of their work. These new quantitative performance metrics, however, appear to affect conditions of employment20such as salary and location of employment.21 This is unacceptable. These metrics will diminish independence in immigration adjudication as immigration judges will now have a personal stake in the outcome of cases. Meeting the performance metrics will become a powerful influence over immigration decision-making.

The metrics establish case completion quotas for immigration judges at 700 completions per year. This sets up many immigration judges to fail, or perhaps even worse, encourages immigration judges to cut corners to meet the quota.22 As far as we know, the Department has not introduced a case weighting system. Not every immigration court docket is the

16 Remarks by President Trump at the National Federation of Independent Businesses 75th Anniversary Celebration, June 19, 2018, available at https://www.whitehouse.gov/briefings-statements/remarks- president-trump-national-federation-independent-businesses-75th-anniversary-celebration/.
17 Id; GOP Moves to End Trump’s Family Separation Policy, but Can’t Agree How, N.Y. TIMES, June 19, 2018,available at https://www.nytimes.com/2018/06/19/us/politics/trump-immigration-children-separated- families.html.

18 Remarks by President Trump at the National Federation of Independent Businesses 75th Anniversary Celebration, June 19, 2018, available at https://www.whitehouse.gov/briefings-statements/remarks- president-trump-national-federation-independent-businesses-75th-anniversary-celebration/.
19 Id.

20 We are aware of your congressional testimony stating that an immigration judge would not be fired automatically for failing to meet the quota and that the Department of Justice would consider an explanation why a judge did not meet a quota. Department of Justice FY19 Budget: Hearing Before the Subcomm. on Commerce, Justice, Science and Related Agencies, 115th Cong., available at https://www.c- span.org/video/?444369-1/attorney-general-sessions-testifies-justice-department-budget#&start=1786(testimony of Attorney General Jeff Sessions at 31:20). The Department, however, has not clarified exactly how these performance metrics would be used, and immigration judges believe that a failure to meet a quota would be used punitively. See Letter from A. Ashley Tabaddor, President, National Association of Immigration Judges, to Hon. Jefferson B. Sessions, May 2, 2018, available athttps://assets.documentcloud.org/documents/4452614/NAIJ-Letter-to-the-AG-5-2-2018.pdf.
21 Location of employment is valuable in a system with immigration courts in major cities and in extremely remote detention centers.
22 Russell Wheeler, Amid Turmoil on the Border, New DOJ Policy Encourages Immigration Judges to Cut Corners, June 18, 2018, available at https://www.brookings.edu/blog/fixgov/2018/06/18/amid-turmoil-on- the-border-new-doj-policy-encourages-immigration-judges-to-cut-corners/.

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same. Deciding 700 claims for asylum is not the same workload as deciding 700 cases where the only issue is whether a foreign national entered the United States without inspection. Asylum cases require careful consideration of evidence about country conditions and an applicant’s experiences in that country. Also, the unique characteristics of a particular judge’s caseload could prevent meeting the case completion goal. Some immigration courts have specialized dockets for vulnerable populations such as those with mental illness or juveniles. Judges assigned to these dockets have additional obligations to ensure minimum standards of fairness.23

The quota motivates judges to come up with coping mechanisms. 24 Efficiencies can come at too great of a cost. For example, what if an immigration judge decides to review paper records and then decide which cases to invite to provide live testimony? If a judge is worried about meeting a quota, a judge might only schedule those matters that could be handled quickly. That would leave more complicated cases to be decided on paper submissions alone.

The quota also sets up an incentive for immigration judges to deny applications for relief. Cancellation of removal provides just one example. By statute, the number of grants of cancellation of removal is limited to 4,000 per year.25 Once the cap is reached, immigration judges may delay a grant to the following fiscal year. If deferring a grant is not considered a completion, then the incentive is to deny the application for relief to earn a completion. This incentive exists even if an immigration judge sincerely believes that the individual is eligible for relief from removal. There are similar issues where the Department of Homeland Security must complete final security checks before a grant of asylum. The immigration judge knows that an asylum case requires multiple steps to complete, but a denial of a case shortens the completion time. Should the judge erroneously deny relief to maintain his or her conditions of employment?

In addition to the case completion quotas, the Department’s proposal calls for certain types of cases to be decided within a certain number of days. This further erodes an immigration judge’s independence to decide what cases need more attention or to allow a continuance to ensure fairness. For example, the plan calls for 95% of all individual merits hearings to take place on the originally scheduled date. The problem here is that there are many forces

23 The federal courts impose obligations on individual immigration judges. For example, in a recent decision on whether a juvenile must be appointed counsel, the Ninth Circuit held that the detailed questioning by the immigration judge was an adequate substitute for appointed counsel. C.J.L.G. v. Sessions, 880 F.3d 1122, 1137-42 (9th Cir. 2018) (noting the obligations of the immigration judge to develop the record). While many of us disagree with the lack of appointed counsel for indigent children, it is clear that federal courts mandate an active and inquisitorial role of immigration judges that requires time and patience.

24 Your own recent decision in Matter of Castro-Tum eliminated a docket management tool known as administrative closure. Now immigration judges must keep these cases active and open on their dockets. 27 I&N Dec. 271 (2018), available at https://www.justice.gov/eoir/page/file/1064086/download.
25 8 U.S.C. § 1229b(e).

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at work that lead immigration judges to issue continuances. Because there is no right to government funded counsel in removal proceedings, foreign nationals may ask for a continuance to find a lawyer, or a newly hired lawyer may need time to prepare. Also, witnesses may not be available on a particular date, or testimony may run long, and the hearing may need to be continued to another day. The 95% goal encourages immigration judges to hold hearings without lawyers even when the foreign national desires one and provides incentive for immigration judges to cut hearings short. Moreover, a study conducted on behalf of the Administrative Conference of the United States revealed a significant percentage of the delays in cases were made at the request of the Department of Homeland Security, not the respondent.26 If the Department of Homeland Security is not ready to proceed and the immigration judge rushes to completion, the government may have to file more appeals. That would simply create more work somewhere else.

As we noted above, the priorities of the Department of Homeland Security directly and at times dramatically impact the work of the immigration courts. The case completion quotas have arrived at the same time that President Trump’s administration has changed its prosecutorial discretion policies to make more foreign nationals priorities for removal.27The administration has announced its plans to open more actions in immigration court.28

Also, the Department of Justice has announced that it is reviewing the Legal Orientation Program, which provides information about the removal process to immigration detainees in a group setting.29 This review is taking place despite previous reviews that have found the program to increase the efficiency of the immigration courts and to save the government money.30 Without an adequate increase in resources, putting more individuals in removal proceedings and/or ending the Legal Orientation Program will only magnify the negative effects of the performance metrics.

26 Lenni B. Benson & Russell R. Wheeler, Enhancing Quality and Timeliness in Immigration Adjudication at 73 (2012), available at https://www.acus.gov/sites/default/files/documents/Enhancing-Quality-and-Timeliness- in-Immigration-Removal-Adjudication-Final-June-72012.pdf (reporting that 11% of delays were because a Department of Homeland Security attorney was not ready to proceed and that 14% were because the Department of Homeland Security was missing a file).

27 Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), available athttps://www.whitehouse.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united- states/.
28 See, e.g., US Citizenship and Immigration Services, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (June 28, 2018), available at,https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1- Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf.
29 Sessions Backtracks on Pausing Legal Aid Program for Immigrants Facing Deportation, WASH. POST. (April 25, 2018), available at https://www.washingtonpost.com/local/immigration/sessions-backtracks-on-pausing- legal-aid-program-for-immigrants/2018/04/25/c0d27a12-48cb-11e8-827e-190efaf1f1ee_story.html.
30ICE Praised Legal-aid Program for Immigrants that Justice Dept. Plans to Suspend, WASH. POST. (April 17, 2018), available at https://www.washingtonpost.com/local/immigration/ice-praised-legal-aid-program-for- immigrants-that-justice-dept-plans-to-suspend/2018/04/17/c0b073d4-3f31-11e8-974f- aacd97698cef_story.html?utm_term=.8fa7c90bba02.

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The Department’s performance metrics are a poor fit for the realities of immigration adjudication. Immigration law is extremely harsh and complex, and the consequences of the decisions of immigration judges are weighty. These decisions should not be made too quickly. An immigration judge must apply statutes that rival the tax code in complexity and must ensure the opportunity to be heard to a diverse and often poorly educated pool of respondents. The Supreme Court regularly hears immigration law cases that require it to resolve thorny questions. These Supreme Court opinions often leave many questions unanswered, as the Court only decides issues directly before it. Immigration judges need time to digest new interpretations and to think about how those new interpretations apply in a wide array of factual scenarios. For example, a recent Supreme Court decision holding certain Department of Homeland Security charging documents31 to be ineffective has created motions within the immigration courts to terminate proceedings and to reopen older cases. Finally, immigration judges are deciding cases with grave consequences. If an individual is removed, they may face death upon return to their country of nationality. Or an individual may be separated from children or other close family.

The immigration adjudication system needs more resources. More immigration judges need to be hired to guarantee that we do not sacrifice our cherished American values and our constitutional obligations. We also note that with the hiring of judges it is critical that the agency adequately provide support staff from law clerks to court administration. All immigration judges need more time to work through their cases fairly and efficiently. Immigration judges need to be given independence so that we all have confidence that their decisions are based on their judgment as adjudicators, and not influenced by what the adjudicators think best will guarantee positive conditions of employment.

We appreciate that you want to work to ensure efficiency in immigration adjudication. However, you are also charged with guiding our government to comply with the rule of law and to protect American legal values. Accordingly, we urge you to reconsider the new performance metrics.

Respectfully,
(Institutional affiliations are listed for identification purposes only.)

Jill E. Family
Commonwealth Professor of Law and Government Director, Law and Government Institute
Widener University Commonwealth Law School

31 Pereira v. Sessions, 138 S.Ct. 2105, 585 U.S. ___ (June 21, 2018).

page7image2407044480 page7image2407044768

Lenni B. Benson Professor of Law New York Law School

Matthew Hirsch
Attorney/Adjunct Professor of Immigration and Nationality Law Delaware Law School, Widener University

Huyen Pham
Professor
Texas A&M University School of Law

Jacqueline Stevens
Professor and Director, Deportation Research Clinic Northwestern University

Anju Gupta
Professor of Law and Director of the Immigrant Rights Clinic Rutgers School of Law

William Brooks
Clinical Professor of Law Touro Law Center

Maria Isabel Medina
Ferris Family Distinguished Professor of Law Loyola University New Orleans College of Law

Jennifer Moore
Professor of Law University of New Mexico

Dina Francesca Haynes Professor of Law
New England Law

Nickole Miller
Clinical Teaching Fellow
University of Baltimore School of Law, Immigrant Rights Clinic

Estelle M McKee Clinical Professor Cornell Law School

Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)

Marisa Cianciarulo
Professor of Law, Associate Dean for Academic Affairs Chapman University Fowler School of Law

Lucy E. Salyer
Associate Professor
History Department, University of New Hampshire

Deborah M. Weissman
Reef C. Ivey II Distinguished Professor of Law UNC School of Law

Carrie Rosenbaum
Adjunct Professor
Golden Gate University School of Law

Emily Robinson
Co-Director, Loyola Immigrant Justice Clinic Loyola Law School Los Angeles

Fatma Marouf
Professor of Law
Texas A&M School of Law

Karen Musalo Professor U.C. Hastings

Miriam Marton
Assistant Clinical Professor University of Tulsa College of Law

Helena Marissa Montes Co-Director
Loyola Immigrant Justice Clinic

Alan Hyde Distinguished Professor Rutgers Law School

Stephen H. Legomsky
John S. Lehmann University Professor Emeritus Washington University School of Law

Erica Schommer
Clinical Associate Professor of Law St. Mary’s University School of Law

Renee C. Redman
Adjunct Professor
University of Connecticut School of Law

Linda Bosniak Distinguished Professor Rutgers Law School

Jonathan Weinberg Professor of Law Wayne State University

Denise Gilman
Clinical Professor
University of Texas School of Law Immigration Clinic

Kayleen R. Hartman Clinical Teaching Fellow Loyola Law School

Lynn Marcus
Director, Immigration Law Clinic
University of Arizona Rogers College of Law

Elizabeth McCormick
Associate Clinical Professor University of Tulsa College of Law

Christopher N. Lasch
Professor of Law
University of Denver Sturm College of Law

John Palmer Tenure-Track Professor Universitat Pompeu Fabra

Julie Ann Dahlstrom
Clinical Associate Professor Boston University School of Law

Susan Gzesh
Senior Lecturer University of Chicago

Violeta Chapin
Clinical Professor of Law University of Colorado

Jon Bauer
Clinical Professor of Law
Richard D. Tulisano ’69 Scholar in Human Rights University of Connecticut School of Law

Rachel E. Rosenbloom
Professor of Law
Northeastern University School of Law

Caitlin Barry
Assistant Professor of Law
Villanova University Charles Widger School of Law

Dr. Richard T. Middleton, IV
Adjunct Professor of Law; Associate Professor of Political Science St. Louis University School of Law; University of Missouri-St. Louis

Anna Welch
Clinical Professor
University of Maine School of Law

Charles Shane Ellison
Director of the Immigrant and Refugee Clinic Special Assistant Professor
Creighton University School of Law

Yolanda Vázquez
Associate Professor of Law
University of Cincinnati College of Law

Claire R. Thomas
Director, Asylum Clinic; Adjunct Professor of Law New York Law School

Laura A. Hernandez Professor of Law Baylor Law School

Kate Evans
Associate Professor of Law University of Idaho College of Law

Stella Burch Elias
Professor of Law
University of Iowa College of Law

Rachel Settlage Associate Professor Wayne State Law School

Hiroko Kusuda
Clinic Professor
Loyola New Orleans University

Sabi Ardalan
Assistant Clinical Professor Harvard Law School

Joshua I. Schwartz
E.K. Gubin Professor of Law
The George Washington University Law School

Florence Wagman Roisman
William F. Harvey Professor of Law and Chancellor’s Professor Indiana University Robert H. McKinney School of Law

Richard J. Pierce Jr.
Lyle T. Alverson Professor of Law George Washington University

Michael Sharon
Adjunct Professor of Law
Case Western Reserve University School of Law

Susan Rose-Ackerman
Henry R. Luce Professor of Law and Political Science, Emeritus Yale University

Jaya Ramji-Nogales
I. Herman Stern Research Professor Temple Law School

Michael Asimow
Visiting Professor of Law Stanford Law School

Natalie Gomez-Velez
Professor of Law
City University of New York (CUNY) School of Law

Adell Amos
Associate Dean & Clayton R. Hess Professor of Law University of Oregon

Harold J. Krent
Dean & Professor of Law Chicago-Kent College of Law

Aila Hoss
Visiting Assistant Professor
Indiana University McKinney School of Law

Richard Reuben
James Lewis Parks Professor of Law and Journalism University of Missouri School of Law

Morell E. Mullins, Sr. Professor Emeritus
UALR Bowen School of Law

Bernard W. Bell
Professor of Law and Herbert Hannoch Scholar Rutgers Law School

Rose Cuison Villazor Professor of Law Rutgers Law School

Lauris Wren
Clinical Professor of Law
Maurice A. Deane School of Law at Hofstra University

Victor Romero
Maureen B. Cavanaugh Distinguished Faculty Scholar Associate Dean for Academic Affairs & Professor of Law Penn State Law (University Park)

David Baluarte
Associate Clinical Professor of Law Washington and Lee University School of Law

Michelle N. Mendez
Adjunct Professor, Immigrant Rights Clinic University of Baltimore School of Law

Jeffrey A. Heller
Adjunct Clinical Professor Emeritus Brooklyn Law School
Seton Hall University School of Law

Susan M. Akram
Clinical Professor and Director, International Human Rights Law Clinic Boston University School of Law

Laila L. Hlass
Professor of Practice
Tulane University School of Law

Joanne Gottesman Clinical Professor of Law Rutgers Law School

Jennifer Lee Koh
Professor of Law
Western State College of Law

Geoffrey Hoffman
Director
Univ. of Houston Law Ctr. Immigration Clinic

Ingrid Eagly Professor of Law UCLA School of Law

Jason A. Cade
Associate Professor of Law University of Georgia School of Law

Peter M. Shane
Jacob E. Davis and Jacob E. Davis II Chair in Law Ohio State University

Anna Williams Shavers
Cline Williams Professor of Citizenship Law University of Nebraska College of Law

Stewart Chang
Professor of Law
UNLV Boyd School of Law

Margaret H. Taylor
Professor of Law
Wake Forest University School of Law

Elora Mukherjee
Jerome L. Greene Clinical Professor of Law Columbia Law School

Michael J. Churgin
Raybourne Thompson Centennial Professor in Law The University of Texas at Austin

Kathleen Kim
Professor of Law
Loyola Law School Los Angeles

Ming H Chen
Associate Professor
University of Colorado Law School

Anil Kalhan
Professor of Law
Drexel University Kline School of Law

Shruti Rana
Professor
Indiana University Bloomington

Hilary Evans Cameron Instructor
Trinity College

Fernando Colon
Professor
Thurgood Marshall School of Law

Shoba Sivaprasad Wadhia
Samuel Weiss Faculty Scholar and Clinical Professor of Law Penn State Law – University Park

Blake Close Nordahl Clinical Professor McGeorge Law School

Kaci Bishop
Clinical Associate Professor of Law
The University of North Carolina School of Law

Craig B. Mousin Adjunct Faculty DePaul University

Joel A. Mintz
Professsor of Law Emeritus
C. William Trout Senior Fellow in Public Interest Law Nova Southeastern University College of Law

Raquel E Aldana
Associate Vice Chancellor for Academic Diversity and Professor of Law UC Davis

Lindsay M. Harris
Assistant Professor of Law
Co-Director of Immigration & Human Rights Clinic
University of the District of Columbia David A. Clarke School of Law

Sheila Hayre
Visiting Associate Professor Quinnipiac University School of Law

Andrew Moore
Associate Professor of Law
University of Detroit Mercy School of Law

Krista Kshatriya Lecturer
UC San Diego

David B. Thronson
Professor of Law
Michigan State University College of Law

Mary Holper
Associate Clinical Professor Boston College Law School

Amelia McGowan
Adjunct Professor
Mississippi College School of Law Immigration Clinic

Maryellen Fullerton Professor of Law Brooklyn Law School

Renée M. Landers
Professor of Law and Faculty Director, Health and Biomedical Law Concentration Suffolk University Law School

Leti Volpp
Robert D. and Leslie Kay Raven Professor of Law UC Berkeley

Alexander Vernon
Director, Immigration Law Clinic Detroit Mercy School of Law

Irene Scharf
Professor of Law
University of Massachusetts School of law

Seymour Moskowitz Senior Research Professor Valparaiso Law School

Veronica T. Thronson
Clinical Professor of Law
Michigan State University College of Law

Elissa Steglich
Clinical Professor
University of Texas School of Law

Mariela Olivares
Associate Professor of Law Howard University School of Law

Barbara Hines
Retired Clinical Professor of Law University of Texas School of Law

Richard T. Middleton, IV
Associate Professor of Political Science Adjunct Professor of Law
University of Missouri-St. Louis
St. Louis University School of Law

Deborah Gonzalez
Director of the Immigration Clinic Associate Clinical Professor Roger Williams University School of Law

Alizabeth Newman
Int. Dir. Alumni Engagement & Initiatives CUNY School of Law

Juliet Stumpf
Robert E. Jones Professor of Advocacy & Ethics Lewis & Clark Law School

Bijal Shah
Associate Professor of Law
Arizona State University, Sandra Day O’Connor College of Law

Niels W. Frenzen
Sidney M. and Audrey M. Irmas Endowed Clinical Professor of Law Univ. of Southern California, Gould School of Law

Jon Michaels Professor of Law UCLA School of Law

Kit Johnson
Associate Professor of Law
University of Oklahoma College of Law

Nina Rabin
Director, UCLA Immigrant Family Legal Clinic UCLA School of Law

Karen E. Bravo
Professor
IU McKinney School of Law

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

Not likely to make any difference with Sessions & Co. But, Sessions is rapidly driving an already crippled and demoralized system into collapse. If Congress doesn’t fix it soon, which almost nobody thinks will happen, the Article III Federal Courts will eventually have to sort out (not for the first time — witness child separation, sanctuary cities, Travel Ban 1&2, violation of stays of removal, DACA termination, etc.) this self-inflicted mess created by the Department of Justice under the last three Administrations and accelerated by Sessions and his White Nationalist agenda.

And, NO, the answer isn’t to blame the victims: the respondents, their courageous, hard-working counsel, and the judges and their dedicated staff. The answer is to hold the “perps,” in this case Sessions and his gang, accountable and place them under strict judicial supervision until Due Process and order are restored to our Immigration Courts.

PWS

08-15-18

LA TIMES: SESSIONS PERSECUTES BROWN SKINNED FEMALE REFUGEES — THERE IS NOTHING “EASY” ABOUT BEING AN ABUSED WOMAN OR AN ASYLUM APPLICANT!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=7d04de4c-1e76-4711-9b90-dac191234d79

Jazmine Ulloa reports for the LA Times:

WASHINGTON — Xiomara started dating him when she was 17. He was different then, not yet the man who pushed drugs and ran with a gang. Not the man who she says berated and raped her, who roused her out of bed some mornings only to beat her.

Not the man who choked her with an electrical cord, or put a gun to her head while she screamed, then begged, “Please, please don’t kill me — I love you.”

Fleeing El Salvador with their daughter, then 4, the 23-year-old mother pleaded for help at a port of entry in El Paso on a chilly day in December 2016.

After nearly two years, her petition for asylum remains caught in a backlog of more than 310,000 other claims. But while she has waited for a ruling, her chance of success has plunged.

Atty. Gen. Jeff Sessions in June issued a decision meant to block most victims of domestic abuse and gang violence from winning asylum, saying that “private criminal acts” generally are not grounds to seek refuge in the U.S. Already, that ruling has narrowed the path for legal refuge for tens of thousands of people attempting to flee strife and poverty in El Salvador, Honduras and Guatemala.

“You can tell there is something happening,” said longtime immigration attorney Carlos A. Garcia, who in mid-July spoke to more than 70 women in one cell block at a family detention center in Texas. Most had received denials of their claims that they have what the law deems a “credible fear of persecution.”

“More than I’ve ever seen before,” he said.

In North Carolina, where federal immigration agents sparked criticism last month when they arrested two domestic-violence survivors at a courthouse, some immigration judges are refusing to hear any asylum claims based on allegations of domestic abuse. Other immigration judges are asking for more detailed evidence of abuse at the outset of a case, a problem for victims who often leave their homes with few written records.

Under the Refugee Act of 1980, judges can grant asylum, which allows a person to stay in the U.S. legally, only to people escaping persecution based on religion, race, nationality, political opinion or membership in “a particular social group.”

As drug war violence escalated over the last two decades in Mexico and Central America, fueled by a U.S. demand for drugs and waged by gangs partly grown on American streets, human rights lawyers pushed to have victims of domestic violence or gang crime considered part of such a social group when their governments don’t protect them.

After years of argument, they won a major victory in 2014 when the highest U.S. immigration court, the Board of Immigration Appeals, ruled in favor of a woman from Guatemala who fled a husband who had beaten and raped her with impunity.

Sessions, in June, used his legal authority over the immigration system to reverse that decision, deciding a case brought by a woman identified in court as A.B.

“Asylum was never meant to alleviate all problems — even all serious problems — that people face every day all over the world,” he said, ruling that in most cases asylum should be limited to those who can show they were directly persecuted by the government, not victims of “private violence.”

Immigration advocates reacted with outrage.

Karen Musalo, a co-counsel for A.B. and a professor at the UC Hastings College of Law, called the decision “a return to the dark ages of refugee law,” a move inconsistent with a steadily evolving principle “that women’s rights are human rights.”

Neither the government, nor the police, could help Xiomara in her rural town, where gangs were deeply embedded.

“Are you kidding?” she said, asking to be identified by only her first name out of concern about possible retaliation. “I would go to the police department and wouldn’t come back alive — if I came back at all.”

Within a year of when they started dating, she said, her boyfriend began drinking and doing drugs, making friends with the wrong crowd. He grew meaner, more violent.

One day he put a gun to her head, her asylum claim says. On another evening, on the roof of his home after another fight, she had been weeping in the dark, when she felt a cord tighten around her neck.

“He would have killed me if his family hadn’t appeared,” she said.

Other women offer similar stories.

Candelaria, 49, who also asked that her last name not be used, said she left an abusive husband of 20 years in Honduras after his drinking became more severe. And always the criminal bands of men roamed.

“My children sent me a photo of me in those days, and I look so old, so sad,” said Candelaria, whose asylum case has been pending for four years.

For more than two decades, United Nations officials and human rights lawyers have argued that women victimized by domestic violence in societies where police refuse to help are being persecuted because of their gender and should be treated as refugees entitled to asylum.

But Sessions and other administration officials have a different view, and they have made a broad effort to curb the path to asylum. The number of people entering the U.S. by claiming asylum has risen sharply in recent years, and administration officials have portrayed the process as a “loophole” in the nation’s immigration laws.

In October, Sessions labeled asylum an “easy ticket to illegal entry into the United States” and called on immigration judges to elevate “the threshold standard of proof in credible fear interviews.” In March, he restricted who could be entitled to full hearings. From May to June, federal officials limited asylum seekers from gaining access through ports of entry, with people waiting for weeks at some of the busiest crossings in Southern California.

The government does not keep precise data on how many domestic-violence survivors claim asylum, but figures released last month give a glimpse of the effect that Sessions’ decision has begun to have at one of the earliest stages of the asylum process.

The American Civil Liberties Union on Wednesday filed a lawsuit on behalf of 12 parents and children it says were wrongly found not to have a credible fear of return. U.S. District Judge Emmet G. Sullivan on Thursday stopped the deportation of a mother and her daughter in the case, threatening to hold Sessions in contempt.

For domestic-abuse survivors waiting for hearings, the uncertainty has been excruciating.

Candelaria wants to go home, but her older children back in Honduras tell her to have hope.

“ ‘You’ve endured enough,’ they tell me,” she said.

Xiomara, now 25, won’t have her asylum hearing for another year.

For months, she scraped by on meager wages, baby-sitting and waiting on tables. She was relieved to find a job at a factory that pays $10 an hour.

The American dream is “one big lie,” she now says.

But at least here, she said, she and her daughter are alive.

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

People like Xiomara are wonderful folks, genuine refugees, deserving of protection, who will contribute to our country. As my friend and legal scholar Professor Karen Musalo cogently said, Sessions is leading “a return to the dark ages of refugee law,” a move inconsistent with a steadily evolving principle “that women’s rights are human rights.” But, the “New Due Process Army” (Karen is one of the “Commanding Generals”) isn’t going to let him get away with this outrageous attack on human rights, women’s rights, and human decency.

Due Process Forever, Jeff Sessions Never!

PWS

08-13-18

LA TIMES: FAILURE IN A NUTSHELL: HOW THE TRUMP/SESSIONS/MILLER/ WHITE NATIONALIST IMMIGRATION AGENDA HAS BEEN A DISASTER FOR AMERICA IN EVERY WAY! — GOP Congress Shares Blame For This Mess!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=a2574305-1ea2-4b64-9a8a-4d9696ba9b90

Trump’s immigration debacle

It’s been six weeks since a federal judge ordered the Trump administration to fix the crisis it created when it separated more than 2,500 children from their parents under a heartless policy designed to deter desperate families from entering the United States illegally. But the job of reunification still isn’t done, in part because the government failed to devise a system to track the separated families.

Some 400 parents reportedly have already been deported without their children, and the government apparently has no idea how to reach them. It’s a colossal snafu that is as appalling as it is inexplicable. Among the many inhumane immigration enforcement policies adopted in the first two years of the Trump reign, history may well regard this bit of idiocy as the worst.

Or perhaps not; the competition hasn’t closed yet. In fact, the Pentagon is working on plans, at Trump’s direction, to house 20,000 detained immigrants — including children this time — in secured areas of military bases while they await deportation proceedings. Yes, the Obama administration did something similar when it tried to deal with the inflow of unaccompanied minors from Central America. It was a bad idea then, and it’s a bad idea now; kids don’t belong in prisons on military bases. Under a court order, the government cannot hold minors for more than 20 days before releasing them to the custody of their parents, other relatives or vetted guardians.

When it comes to immigration, there has been such a flood of bad policies and ham-handed enforcement acts since Trump took office that it can be hard to keep it all straight.

First there was the ban on travel of people from mostly Muslim countries and then the effort to eliminate protections for so-called Dreamers who have been living in the country illegally since arriving as children. Hard-line Atty. Gen. Jeff Sessions has inserted himself in the immigration court system and overridden previous decisions over who qualifies for asylum; not surprisingly, the number of people granted protection has dropped as a result. President Trump also has throttled the flow of refugees resettled here; last year, for the first time since the passage of the 1980 U.S. Refugee Act, the United States resettled fewer refugees than the rest of the world, a significant step away from what had been an area of global leadership. (Over the last 40 years, the U.S. has been responsible for 75% of the world’s permanently resettled refugees.)

Then there’s this: The White House is reportedly drafting a plan that would allow immigration officials to deny citizenship, green cards and residency visas to immigrants if they or family members have used certain government programs, such as food stamps, the earned income tax credit or Obamacare.

And this: The now largely abandoned “zero tolerance” policy of filing misdemeanor criminal charges against people crossing the border illegally led to a surge of cases in federal court districts along the Southwest border as non-immigration criminal prosecutions plummeted, according to an analysis by the Transactional Records Access Clearinghouse. In fact, non-immigration prosecutions fell from 1,093 (1 in 7 prosecutions) in March to 703 (1 in 17 prosecutions) in June, suggesting that serious crimes are taking a back seat to misdemeanor border crossing.

Meanwhile, a Government Accountability Office report this week questions how U.S. Customs and Border Patrol set priorities in planning where to build Trump’s border wall, and said the agency failed to account for wide variations in terrain in estimating the cost — which means that extending the existing border walls and fences another 722 miles could cost more than the administration’s $18-billion estimate. And while the president crows that the wall will secure the border, it won’t, experts say. People will still find a way around, over or under it. And most drug smuggling already comes hidden in motor vehicles passing through monitored ports of entry. At best, Trump’s wall — if Congress is insane enough to approve funding — would be little more than a symbol of his arrogance, and of this country’s determination to seal itself off from the world.

Trump’s immigration policy has been characterized by unnecessary detention and inadequate monitoring that has allowed for abuses at detention centers — including sexual assaults and forced medication of children. The immigration court system is now overwhelmed by a backlog of 733,000 cases.

In short, it’s been a disaster. And through all of these fiascoes, there have been zero serious efforts in Congress or by the president for comprehensive reform of a system everyone acknowledges is broken.

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

Regime change is the only answer, beginning this November and continuing until Trump and his toxically incompetent White Nationalist Cabal are removed from office!

America is a great country that could reach its full potential and regain both economic and moral leadership among the world’s nations. But, it’s never going to happen while the majority of us are being governed by short-sighted, incompetent White Nationalists bent on letting their racist agenda destroy our country. Oh, and they are corrupt grifters too, never a good sign in leadership!

PWS

08-11-18

THE HILL: NOLAN COMMENTS ON RISING IMMIGRATION COURT BACKLOG!

http://thehill.com/opinion/energy-environment/400627-is-the-drop-in-credible-fear-findings-an-omen-that-hard-times-are

Nolan writes:

. . . .

In the first two quarters of fiscal 2018, the immigration court only completed 92,009 cases. At this rate, the immigration court will have completed only 184,000 cases when fiscal 2018 ends on Sept. 30.

Even if DHS stopped arresting deportable aliens, it would take the immigration court four years to eliminate its backlog.

Attorney General Jeff Sessions is clarifying asylum eligibility requirementsto make it easier to screen out aliens who do not have a legitimate persecution claim, but this will just slow down the rate at which the backlog increases. It won’t reduce it.

To reduce the backlog, Trump will have to pull aliens from the immigration court’s backlog and put them in expedited removal proceedings, and presumably this is why he is planning to expand the use of expedited removal proceedings.

In January, Trump instructed the DHS to apply expedited removal proceedings to the fullest extent of the law. This would extend it to include undocumented aliens who were not admitted or paroled into the United States and cannot prove that they have been here for two years.

It will be extremely difficult to help aliens who are caught up in this expansion. Congress has severely limited federal court jurisdiction over expedited removal proceedings.

The courts cannot consider expedited removal orders on a petition for review.

Review is available in habeas corpus proceedings, but it is limited to determinations of whether the petitioner is an alien; whether his removal has been ordered in expedited removal proceedings; and whether he has been lawfully admitted for permanent residence, or has been granted refugee or asylum status.

Other provisions permit challenges to the constitutionality of the system and its implementing regulations, and claims that the written policies and procedures issued under it are in violation of law. These challenges must be brought in the U.S. District Court for the District of Columbia within 60 days of when the challenged policy or procedure is implemented.

The expansion should greatly reduce the backlog, but it will not eliminate it. Too many of the aliens in removal proceedings have been physically present for two years.

Trump will need a legalization program to finish the job, but he has shown a willingness to work with the Democrats on legalization. But will they work with him?

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

Go on over to The Hill at the link to read the rest of Nolan’s article.

Even assuming that the vastly expanded use of expedited removal were upheld by the Article III Courts (I think it’s unconstitutional), cases couldn’t be “pulled from the backlog.” The Immigration Court backlog is made up almost entirely of cases where the individuals have already been here more than two years. Thus, expedited removal wouldn’t apply.
Interesting that notwithstanding the attention given to immigration, the DHS hasn’t gotten around to publishing the necessary regulatory change to expand expedited removal. That might suggest that “cooler, smarter heads” within DHS might actually be pointing out why that would be stupid.
The real “take away” here is that under Sessions’s gross mismanagement of the Immigration Courts more Immigration Judges produce fewer completed cases and more backlog. Basically, what I had predicted. And that’s with all sorts of pressure to churn out orders, cutting Due Process, unnecessary wasteful coercive detention, “aimless docket reshuffling,” some politicized personnel actions, and other “pedal faster gimmicks” by Sessions.
What that really shows is that Immigration Court cases are difficult cases and that even with Sessions’s shameless gaming of the system against migrants, Due Process has a certain largely irreducible minimum time for hearings.
Given that, increasing so-called “expedited removal” to reduce the existing backlog clearly would be irrational and present severe Constitutional difficulties under the Due Process clause.
Like it or not, a substantial legalization program combined with an independent Article I Immigration Court, more rational DHS enforcement priorities, and a healthy dose of prosecutorial discretion is the only way of getting the Immigration Courts back on track.
And, while I’ve said before that Democrats bear a fair share of the blame for the current Immigration Court dysfunction, Sessions has certainly made it immeasurably worse; the current barrier to reasonable immigration reform is clearly Trump and the GOP restrictionists, not the Democrats.
Indeed, the Trump-led GOP’s inability to accomplish the “no brainer” of DACA relief shows that it’s going to take “regime change” to solve this problem.
That means that things are likely to continue to get worse before they improve — that is, unless the Article IIIs step in and take control of the Immigration Courts away from Sessions as an act of Constitutional self-preservation.
Drastic action? Sure. Likely? Maybe not. But, the Article IIIs might eventually have to do it, since Sessions’s scofflaw actions on immigration are starting to run the entire Article III system into the ground, just like he is destroying the Immigration Courts.

PWS

08-07-18

Backlogs in U.S. immigration courts are up 38 percent since Trump took office, with the biggest increases in Maryland, Massachusetts and Georgia

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