Category: Backlogs

U.S. IMMIGRATION COURTS: Judge Lawrence O. “Burmanator” Burman (SOLELY In His NAIJ Officer Capacity) Gives Rare Peek Inside U.S. Immigration Courts’ Disaster Zone From A Sitting Trial Judge Who “Tells It Like It Is!”

Judge Burman appeared at a panel discussion at the Center for Immigration Studies (“CIS”). CIS Executive Director Mark Krikorian; Hon. Andrew Arthur, former U.S. Immigration Judge and CIS Resident Fellow; and former DOJ Civil Rights Division Official Hans von Spakovsky, currently Senior Legal Fellow at the Heritage Foundation were also on the panel entitled “Immigration Court Backlog Causes and Solutions” held at the National Press Club on Aug. 24, 2017.  Here’s a complete transcript furnished by CIS (with thanks to Nolan Rappaport who forwarded it to me).

Here’s the “meat” of Judge Burman’s remarks:

“First, the disclaimer, which is important so I don’t get fired. I’m speaking for the National Association of Immigration Judges, of which I am an elected officer. My opinions expressed will be my own opinions, informed by many discussions with our members in all parts of the country. I am not speaking on behalf of the Department of Justice, the Executive Office for Immigration Review, the chief judge, or anybody else in the government. That’s important.

What is the NAIJ, the National Association of Immigration Judges? We’re a strictly nonpartisan organization whose focus is fairness, due process, transparency for the public, and judicial independence. We’re opposed to interference by parties of both administrations with the proper and efficient administration of justice. We’ve had just as much trouble with Republican administrations as Democratic administrations.

It’s been my experience that the people at the top really don’t understand what we do, and consequently the decisions they make are not helpful. For example, the – well, let me backtrack a little bit and talk about our organization.

Immigration judges are the – are the basic trial judges that hear the cases. Above us is the Board of Immigration Appeals, who function as if they were an appellate court. We, since 1996, have been clearly designated as judges by Congress. We are in the statute. We have prescribed jurisdiction and powers. Congress even gave us contempt authority to be able to enforce our decisions. Unfortunately, no administration has seen fit to actually give us the contempt authority. They’ve never done the regulations. But it’s in the statute.

The Board of Immigration Appeals is not in the statute. It has no legal existence, really. It’s essentially an emanation of the attorney general’s limitless discretion over immigration law. The members of the Board of – Board of Immigration Appeals are – in some cases they’ve got some experience. Generally, they don’t have very much. They’re a combination of people who are well-respected in other parts of the Department of Justice and deserve a well-paid position. Very often they’re staff attorneys who have basically moved up to become board members, skipping the immigration judge process. Very few immigration judges have ever been made board members, and none of them were made board members because they had been immigration judges. If they were, it was largely a coincidence.

The administration of the Executive Office for Immigration Review in which we and the BIA are housed is basically an administrative agency. We are judges, but we don’t have a court. We operate in an administrative agency that’s a lot closer to the Department of Motor Vehicles than it is to a district court or even a bankruptcy court, an Article I type court.

Our supervisors – I’m not sure why judges need supervisors, but our supervisors are called assistant chief immigration judges. Some of them have some experience. Some of them have no experience not only as judges, but really as attorneys. They were staff attorneys working in the bowels of EOIR, and gradually became temporary board members, and then permanent board members.

Interestingly, when a Court of Appeals panel is short a judge, they bring up a district judge. EOIR used to do that, by bringing up an immigration judge to fill out a panel at the board. They don’t do that anymore. They appoint their staff attorneys as temporary board members, a fact that is very shocking when we tell it to federal judges. They can’t imagine that a panel would be one member short and they’d put their law clerk on the panel, but that’s what goes on.

The top three judges until recently – the chief judge and the two primary deputies – had no courtroom experience that I’m aware of. Two of them have gone on. Unfortunately, one of them has gone on to be a BIA member. The other retired.

Our direct supervisors are the assistant chief immigration judges. Some are in headquarters, and they generally have very little experience. Others are in the field, and they do have some experience – although, for example, the last two ACIJs – assistant chief immigration judges – who were appointed became judges in 2016. So they don’t have vast experience. Well, they may be fine people with other forms of experience, but this agency is not run by experienced judges, and I think it’s important to understand that.

There’s a severe misallocation of resources within EOIR. I think Congress probably has given us plenty of money, but we misuse it. In the past administration, the number of senior executive service – SES – officials has doubled. Maybe they needed some more administrative depth, although I doubt it. The assistant chief immigration judges are proliferating. I think there’s 22 of them now. These are people who may do some cases. Some of them do no cases. They generally don’t really move the ball when it comes to adjudicating cases. Somehow, the federal courts are able to function without all of these intermediaries and supervisory judges, and I think that we would function better without them as well.

To give you a few examples – I could give you thousands of examples, and if you want to stick around I’ll be happy to talk about it. Art was talking about the juvenile surge. I think it was approximately 50,000 juveniles came across the border. To appear to be tough, I guess, they were prioritized. The official line is, you know, we’re going to give them their asylum hearings immediately. I’m not sure what kind of asylum case that a 6-year-old might have, but we would hear the case and do it quickly, and then discourage people from coming to our country. But, in fact, what’s actually happened is the juvenile docket is basically a meet-and-greet. The judges are not – first of all, I’m not allowed to be a juvenile judge. The juvenile judges are carefully selected for people who get along well with children, I guess. (Laughter.) Really, what they do is they just – they see the kids periodically, and in the meantime the children are filing their asylum cases with the asylum office, where they’re applying for special immigrant juvenile status, various things. But judge time is being wasted on that.

Another example is the current surge. I have a really busy docket. Art was talking about cases being scheduled in 2021. The backlog for me is infinite. I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020. So they’re just piling up in the ether somewhere.

As busy as I am, they send me to the border, but these border details are politically oriented. First of all, we probably could be doing them by tele-video. But assuming that they want to do them in person, you would think that they would only send the number of judges that are really needed. But, in fact, on my last detail of 10 business days, two-week detail, two days I had no cases scheduled at all. And back home having two cases off the docket, which almost never happens – or two days off the docket, which almost never happens, would be useful because I could work on motions and decisions. But when I’m in Jena, Louisiana, I can’t really work on my regular stuff. So I’m just reading email and hanging out there.

The reason for that is because there’s been no attempt to comply with the attorney general’s request that we rush judges to the border with, at the same time, making sure that there’s enough work or not to send more judges than is really necessary to do the work. I assume the people that run our agency just want to make the attorney general happy, and they send as many judges to the border as possible.

One particularly bizarre example was in San Antonio. The San Antonio judges were doing a detail to one of the outlying detention facilities by tele-video. But they wanted to rush judges to the border, so they assigned a bunch of judges in the country that had their own dockets to take over that docket by tele-video on one week’s notice. Well, one week’s notice meant that the judges in San Antonio couldn’t reset cases. You’ve got to give at least 10 days’ notice of a hearing by regulation. So we had judges taken away from their regular dockets to do that; judges who normally would have done that who already were on the border – San Antonio is pretty closer to the border – didn’t have anything to do.

Now, those may be extreme cases, but this happens all too much, and it’s because of political interference. And like I say, it’s got nothing to do with party. We’ve had the same problem with Democratic and Republican administrations. It comes from political decisions animating the process and people who don’t really understand what they’re managing, just attempting to placate the guy on the top. So that’s basically what’s been happening.

Am I over my 10 minutes here?

MR. KRIKORIAN: Yeah. Well, I mean, you’re right at it. If you’ve got a couple more minutes, that’s fine.

JUDGE BURMAN: Well, let me just go over some possible suggestions.

Let judges be judges – immigration judges that control their own courts and their own dockets. We should be able to supervise our own law clerks and our own legal assistants, which currently we don’t. And the contempt authority we were given in 1996 should eventually – should finally get some regulations to implement it.

EOIR’s overhead needs to be reduced. There’s too many positions at headquarters and too few positions in the field. When EOIR was originally set up, the idea was that each judge would need three legal assistants to docket the cases and find the files and make copies and all that. At one point last year we were down to less than one legal assistant per judge in Arlington, where I am, and in Los Angeles it was even worse. When you do that, the judge is looking for files, the judge is making copies, the judge doesn’t have the evidence that’s been filed. There’s nothing more annoying than to start a hearing and to find that evidence was filed that I don’t have. The case has to be continued. I have to have a chance to find the evidence and review it.

It would be nice if our management were more experienced than they are, or at least have some more courtroom experience.

We need an electronic filing system like all the other courts have. Fortunately, that’s one thing that Acting Director McHenry has said is his top priority, and I think that he will take care of that.

The BIA is a problem. The BIA doesn’t have the kind of expertise that the federal courts would defer to. Consequently, I think a lot of the bad appellate law that Art was referring to is caused by the fact that the BIA really doesn’t have any respect in the federal court system. They’re not immigration experts. They want their Chevron deference, but they are not getting it. They’re not getting it from the Court of Appeals. They’re not getting it from the Supreme Court, either.

The BIA also remands way too many cases. When we make a decision, we send it up to the BIA. We don’t really care what they do. They could affirm us. They could reverse us. We don’t want to see it back. We’ve got too much stuff to see them back. And this happens all the time. If they remand the case, they don’t ever have to take credit for the decision that they make. I assume that’s why they’re doing it, to try to make us do it.

We need a proper judicial disciplinary system. Starting in 2006, which is where the backlog problem began, the attorney general first of all subjected us to annual appraisals, evaluations, which previously OPM had waived due to our judicial function. So that’s a waste of time. Judges were punished for the – for things that are not punishment. Judges were punished because a Court of Appeals would say that you made a mistake or he was rude or – it’s just crazy. Judges were punished or could be punished for granting – for not granting continuances. No judge was ever punished for granting a continuance. So it’s no surprise that, as I pointed out, continuances have been granted at a much greater level – in fact, too great a level. But when in doubt, we continue now because if we don’t do that we’re subject to punishment, and nobody really wants that.

And finally, the ultimate solution, I think, is an Article I court like the bankruptcy court – a specialized court, could be in the judicial branch, could be in the executive branch – to give us independence, to ensure that we have judges and appellate judges who are appointed in a transparent way, being vetted by the private bar, the government, and anybody else.

And I’m way over my 10 minutes, so I’ll be – I’ll be sure to babble on later if you want me to. Thank you.”

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Judge Arthur’s kind opening words about the late Juan Osuna were a nice touch. One of Juan’s great strengths as person, executive, judge, and teacher was his ability to maintain good friendships with and respect from folks with an assortment of ideas on immigration.

Judge Burman’s “no BS” insights are as timely as they are unusual. That’s because U.S. Immigration Judges are not encouraged to speak publicly and forthrightly about their jobs.

The Supervisory Judge and the EOIR Ethics Office must approve all public appearances by U.S. Immigration Judges including teaching and pro bono training. A precondition for receiving permission is that the judge adhere to the DOJ/EOIR “party line” and not say anything critical about the agency or colleagues. In other words, telling the truth is discouraged.

As a result, most Immigration Judges don’t bother to interact with the public except in their courtrooms. A small percentage of sitting judges do almost all of the outreach and public education for the Immigration Courts.

While EOIR Senior Executives and Supervisors often appear at “high profile events” or will agree to limited press interviews, they all too often have little if any grasp of what happens at the “retail level” in the Immigration Courts. Even when they do, they often appear to feel that their job security depends on making things sound much better than they really are or that progress is being made where actually regression is taking place.

In reality, the system functioned better in the 1990s than it does two decades later. Due Process protection for individuals — the sole mission of EOIR — has actually regressed in recent years as quality and fairness have taken a back seat to churning numbers, carrying out political priorities, not rocking the boat, and going along to get along. Such things are typical within government agency bureaucracies, but atypical among well-functioning court systems.

I once appeared on a panel with a U.S. District Judge. After hearing my elaborate, global disclaimer, he chuckled. Then he pointedly told the audience words to the effect of  “I’m here as a judge because you asked me, and I wanted to come. I didn’t tell the Chief Judge I was coming, and I wouldn’t dream of asking his or anyone else’s permission to speak my mind.”

I hope that everyone picked up Judge Burman’s point that “Aimless Docket Reshuffling” or “ADR” is still in full swing at EOIR. Cases are shuffled, moved around, taken off docket, and then restored to the docket to conceal that the backlog in Arlington goes out beyond the artificial “2020 limit” that Judge Burman has been instructed to use for “public consumption.” But there are other cases out there aimlessly “floating around the ether.” And, based on my experience, I’m relatively certain that many courts are worse than Arlington.

Judge Burman also makes another great  “inside baseball” point — too many unnecessary remands from the BIA. Up until the very ill-advised “Ashcroft Reforms” the BIA exercised de novo factfinding authority. This meant that when the BIA disagreed with the Immigration Judge’s disposition, on any ground, they could simply decide the case and enter a final administrative order for the winning party.

After Ashcroft stripped the BIA of factfinding  authority, nearly every case where the BIA disagrees with the lower court decision must be returned to the Immigration Court for further proceedings. Given the overloaded docket and lack of e-filing capability within EOIR, such routine remands can often take many months or even years. Sometimes, the file gets lost in the shuffle until one or both parties inquire about it.

The Immigration Courts are also burdened with useless administrative remands to check fingerprints in open court following BIA review. This function should be performed solely by DHS, whose Counsel can notify the Immigration Court in rare cases where the prints disclose previously unknown facts. In 13 years as an Immigration Judge, I had about 3 or 4 cases (out of thousands) where such “post hoc” prints checks revealed previously unknown material information. I would would have reopened any such case. So, the existing procedures are unnecessary and incredibly wasteful of limited judicial docket time.

I agree completely with Judge Burman that the deterioration of the Immigration Courts spans Administrations of both parties. Not surprisingly, I also agree with him that the only real solution to the Courts’ woes is an independent Article I Court. Sooner, rather than later!

PWS

09-03-17

 

 

 

 

 

 

Related posts:

  1. MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!
  2. TRUMP’S “GONZO” ENFORCEMENT POLICIES PRODUCE MORE REMOVAL ORDERS BUT FEWER ACTUAL DEPORTATIONS! — CRIMINAL DEPORTATIONS FALL AS DHS PICKS ON NON-CRIMINALS! — MINDLESS ABUSE OF ALREADY OVERWHELMED IMMIGRATION COURT DOCKETS ACTUALLY INHIBITS ABILITY TO CONCENTRATE ON CRIMINALS!
  3. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  4. EXPOSED! — AILA’S JOHNSON SHOWS HOW “GONZO” INTENTIONALLY MISUSES DATA TO CREATE A FALSE ANTI-ASYLUM, ANTI-LAWYER NARRATIVE TO CONCEAL THE REAL GLARING PROBLEM DRIVING US IMMIGRATION COURT BACKLOGS — AIMLESS DOCKET RESHUFFLING (“ADR”) DRIVEN BY POLITICOS ATTEMPTING TO STACK THE COURT SYSTEM AGAINST DUE PROCESS AND TILT IT IN FAVOR OF DHS/ADMINISTRATION ENFORCEMENT INITIATIVES!!!!!!! — SURPRISE — By Far The Biggest Increase In Continuances Comes From DHS & EOIR Itself!

DERELICTION OF DUTY! — Sessions’s DOJ Is MIA In Vindicating Public’s Constitutional Rights To Freedom From Police Brutality — State Of IL Forced To Do Feds’ Job For Them!

https://www.washingtonpost.com/opinions/illinois-fills-in-for-the-missing-in-action-justice-department/2017/09/02/c8e16484-8e90-11e7-84c0-02cc069f2c37_story.html?utm_term=.ed2fa2d4a0d6

The Washington Post says in an editorial today:

“IN JANUARY, an investigation by the Justice Department found that the Chicago Police Department routinely used excessive force against the city’s residents, often along racial lines and without accountability. That report recommended federal court oversight of the Chicago police to prevent further abuses. Now, almost nine months later, a federal judge is set to begin supervising the process of reforming Chicago’s police.

But the city of Chicago won’t be working with the Justice Department. Instead, it’s Illinois Attorney General Lisa Madigan who is bringing the lawsuit to begin negotiations on a federal court decree for police oversight.

The state of Illinois is filling the hole left by Attorney General Jeff Sessions, under whose leadership the Justice Department pulled back from its agreement to negotiate with Chicago to find a mutually agreeable model for court supervision of the city’s police. After months, nothing came of Chicago Mayor Rahm Emanuel’s efforts to find a solution with the Justice Department outside the courts. Now, Mr. Emanuel — who has been reluctant to embrace judicial oversight of Chicago police — has pledged to partner with Ms. Madigan to achieve reform under the watchful eye of a judge.

Chicago is one of several cities left behind by Mr. Sessions’s emphasis on fighting crime over working with unsettled police departments in need of reform — as if protecting civil rights and public safety were somehow incompatible. Two months into his time as attorney general, Mr. Sessions issued a memorandum directing his deputies to review oversight agreements reached by the Obama administration with police departments found to have systematically violated civil rights. The Justice Department then tried to delay an agreement finalized by Obama officials from going into effect in Baltimore, over the objections of the police department itself — only to be rebuked by the judge who gave the reform plan his approval. And recently, the department’s Community Oriented Policing Services Office (COPS) has reportedly failed to provide assessments requested by at least seven local police departments that reached out for help with reform.”

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Read the entire editorial at the above link.

Get this! While Gonzo Apocalypto is out spreading his knowingly false narrative about how nannies, gardeners, drywallers, carpenters, health care workers, fast food workers, students, soccer players, and emergency response personnel are threats to the public safety (not surprisingly, a tough sell in many diverse communities that depend on migrant labor and ethnic community participation without regard to legal status) and misusing statistics and anecdotes to support the Trump Administration’s bogus case that local police need tanks and other combat type military equipment to protect the public, the real law enforcement duties of the DOJ are going by the board. Nowhere is this more true than in the area of civil rights and voting rights, where the DOJ is actually working with some states and localities to undermine Americans’ constitutional rights. But, the Department’s “turn back the clock” approach to drug enforcement, prison reform, sentencing reform, forensic science, and community policing is also “built to fail” and deserves censure.

Then, there is the massive failure of justice in the overwhelmed U.S. Immigration Courts. Rather than setting forth a rational plan to restore due process and functionality by reducing dockets, providing more and better training for judges, hiring additional law clerks, closing down “kangaroo courts” in detention centers, giving judges control of individual dockets, implementing statutory contempt authority for judges, establishing a merit-based hiring system that promotes a diverse judiciary, putting resources into technology including e-filing, and making EOIR functionally independent from the DOJ’s political influence and the President’s immigration enforcement initiatives, Sessions has sent a “just peddle faster” message to Immigration Courts that are already peddling so fast that they are careening out of control. The DOJ’s handling of the U.S. Immigration Courts is a national disgrace that will come back to haunt the entire justice system unless or until Coongress or the Article III Courts call a halt!

And Jeff “Gonzo Apocalypto” Sessions is a key part of the problems that his White Nationalist agenda can never solve and, indeed, will continue to aggravate while he holds office.

PWS

09-03-17

 

 

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  3. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  4. MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!

TAL KOPAN & JIM ACOSTA ON CNN: Speaker Ryan Says Trump Should Delay DACA Decision While Congress Works On Extension! — Also, Top Seattle Execs Urge Trump To Keep DACA

http://www.cnn.com/2017/09/01/politics/paul-ryan-daca-trump-immigration/index.html

Tal & Jim write:

“(CNN)House Speaker Paul Ryan on Friday gave a major boost to legislative efforts to preserve protections for young undocumented immigrants — and urged President Donald Trump to not tear up the program.

Trump told reporters Friday he was still mulling the decision.
Responding to a question about Deferred Action for Childhood Arrivals, or DACA, on his hometown radio station WCLO in Janesville, Wisconsin, Ryan said Congress was working on a legislative fix to preserve the program.
“I actually don’t think he should do that,” Ryan said of Trump’s consideration of terminating the program. “I believe that this is something that Congress has to fix.”
'Dreamers' anxious as Trump DACA decision looms
‘Dreamers’ anxious as Trump DACA decision looms
Ryan’s statement offers the most public support by anyone in the Republican congressional leadership for some sort of legislation to protect the “Dreamers” under DACA.
The popular Obama administration program — which gives protections from deportation to undocumented immigrants that were brought to the US as children to work or study — has long been targeted by Republicans as an overreach of executive authority.
Nevertheless, a number of moderate Republicans alongside Democrats support the program and have offered legislation that would make the protections permanent.

. . . .

The popular Obama administration program — which gives protections from deportation to undocumented immigrants that were brought to the US as children to work or study — has long been targeted by Republicans as an overreach of executive authority.
Nevertheless, a number of moderate Republicans alongside Democrats support the program and have offered legislation that would make the protections permanent.
Ryan, who worked on comprehensive immigration reform before he became part of House leadership, endorsed that approach in the interview.
“President (Barack) Obama does not have the authority to do what he did … we’ve made that very clear,” Ryan said in the radio interview. “Having said all of that, there are people who are in limbo. These are kids who know no other country, who were brought here by their parents and don’t know another home. And so I really do believe there that there needs to be a legislative solution.”
Trump’s decision
Asked whether he’s made a decision on DACA, Trump said: “Sometime today, maybe over the weekend.”
“We love the Dreamers,” he said.
The Trump administration has been discussing for weeks what to do about DACA, responding to the deadline on an ultimatum issued by 10 state attorneys general, led by Texas. The threat: Sunset DACA by September 5 or the states will try to end it in court.
Discussions have heated up this week as officials have met to chart a path forward. While a decision had been possible Friday, and one source familiar had believed a decision was pending Friday morning, by midday, sources familiar with the deliberations did not expect a decision before the weekend.
Parts of the Department of Homeland Security, which administers DACA, have been told to prepare for a decision but have not been given any potential details of what a decision may be.
White House discussing whether DACA deadline can be moved
White House discussing whether DACA deadline can be moved
Sources inside and outside the administration said the White House continues to explore buying itself time and is also considering allowing the attorneys general to proceed with their threat.
That course of action could potentially remove pressure from the White House, where the President has promised to act with “heart” on the matter and give Congress time to pass a legislative fix, and one source said it was under consideration.
Any action by the President to sunset DACA would put immediate pressure on Congress to act, something the White House and a senior congressional source recognize would be a challenge with many other pressing priorities at the moment, from Harvey relief to the debt ceiling to government spending. A go-slow approach on DACA is preferred, the congressional source added.
Big congressional boost
Ryan has long been sympathetic to the plight of Dreamers. At a CNN town hall at the beginning of the year, Ryan was asked by a young woman protected under DACA whether he wanted her deported. He said he was working with the Trump administration and seeking a “humane solution.”
“What we have to do is find a way to ensure that you can get right with the law,” the speaker told the young woman.
But until now, leadership has not helped the push by moderate Republicans to advance legislation to do so. Four different options have been introduced in Congress, including two bipartisan solutions led by Sens. Lindsey Graham, a South Carolina Republican, and Dick Durbin, an Illinois Democrat. Another proposal from Florida Republican Rep. Carlos Curbelo has entirely Republican support and is expected to be introduced in a similar form in the Senate by North Carolina Republican Thom Tillis.
In addition to Ryan’s endorsement, another conservative boost on Friday came from Utah Sen. Orrin Hatch, a staunch conservative who has in the past supported immigration reform.
“I’ve urged the President not to rescind DACA, an action that would further complicate a system in serious need of a permanent, legislative solution,” Hatch said in a statement. “Like the President, I’ve long advocated for tougher enforcement of our existing immigration laws. But we also need a workable, permanent solution for individuals who entered our country unlawfully as children through no fault of their own and who have built their lives here. And that solution must come from Congress.”
Colorado Rep. Mike Coffman, a moderate Republican, announced on Thursday he would try to force a vote on one of the bipartisan bills when Congress returns next week through what’s known as a discharge petition, which would require a majority of House members to sign on to work. The speaker’s office had no comment on that effort.”

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Additionally, as reported in the Seattle Times, the CEOs of Microsoft, Amazon, and Starbucks have added their voices of support for Dreamers:

“The leaders of Amazon, Microsoft and Starbucks joined other corporate executives in asking President Donald Trump to keep in place a program that shields from deportation young people who came to the U.S. illegally as children.

The Deferred Action for Childhood Arrivals (DACA) program, which protects about 800,000 “Dreamers,” is said to be a target for repeal as Republican attorneys general threaten to sue to push the Trump administration to carry out the president’s hard-line pledges on immigration.

 

Supporters of the program, including Washington Gov. Jay Inslee, came to its defense this week, urging the White House to keep DACA intact. Those ranks swelled with hundreds of corporate executives, lawyers and other organizations who made largely economic arguments in a separate open letter.

“Dreamers are vital to the future of our companies and our economy,” the letter said. Signatories include Amazon.com chief executive Jeff Bezos, Microsoft CEO Satya Nadella, and Starbucks boss Kevin Johnson.”

http://www.seattletimes.com/business/microsoft-amazon-starbucks-leaders-voice-support-for-dreamers/?utm_source=referral&utm_medium=mobile-app&utm_campaign=ios

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Read Tal’s complete article at the link.

A legislative solution seems to be in everyone’s best interests here!  Let’s hope it will happen.

PWS

O9-01-17

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  2. PREVENTABLE HUMAN DISASTER: THE WANTON CRUELTY, WASTEFULNESS, & TOTAL STUPIDITY OF THE TRUMP/SESSIONS “GONZO” IMMIGRATION ENFORCEMENT PROGRAM PORTRAYED IN GRAPHIC HUMAN TERMS — The Damage To America Of Mistreating Our Families & Our Citizen Youth Will Long Outlive The Misguided Officials Carrying It Out!
  3. ELISE FOLEY @ HUFFPOST: TRUMP’S WHITE NATIONALIST AGENDA APPEARS ON TRACK TO SINK DREAMER AGREEMENT, PERHAPS RESULTING IN USG SHUTDOWN! – Sen. Durbin, Dems “Just Say No” To Restrictionist Measures!
  4. JAMELLE BOUIE @ SLATE: TRUMP, SESSIONS, MILLER & THE GOP RESTRICTIONISTS HAVE PUT GOOD OL’ 1920S RACISM AT THE FOREFRONT OF THEIR WHITE NATIONALIST IMMIGRATION AGENDA! –“What good does it do to bring in somebody who’s illiterate in their own country, has no skills, and is going to struggle in our country and not be successful? . . . That is not what a good nation should do, and we need to get away from it.” — J. “Gonzo Apocalypto” Sessions, Attorney General of the United States of America & Unapologetic White Nationalist With A Long History Of Racism!

ZOE TILLMAN ON BUZZFEED: Administration Has Nowhere To Hide As Stats Show Immigration Court Backlog Careening Out Of Control On Their Watch: Head Of Judges Assn Says Judges Are “canaries in the coal mine . . . still gasping for air.!”

https://www.buzzfeed.com/zoetillman/the-backlog-of-cases-in-immigration-courts-has-hit-a-record?utm_term=.gsZy1Gdqr#.pqmop3XAD

Zoe reports:

“The backlog of cases in US immigration courts has continued to worsen amid the Trump administration’s border crackdown, new statistics show.

As of the end of July, there were 617,527 cases pending in immigration courts. It’s the first time this number has crossed the 600,000 mark, according to information released on Thursday by the Transactional Records Action Clearinghouse, or TRAC, a research center at Syracuse University that tracks US government data.

The immigration court system, which is an arm of the US Department of Justice, has been grappling with growing caseloads for years. Immigration judges and lawyers have reported case delays stretching years out. But the latest numbers show a large jump in 2017. When Trump took office in January, there were approximately 540,000 pending cases.

“It is still overwhelming to the immigration judges,” said Judge Dana Leigh Marks, an immigration judge in San Francisco and president of the National Association of Immigration Judges. “The levels of caseload are higher than we’ve ever seen before.”

. . . .

As of Aug. 14, there were 334 immigration judges nationwide — 54 have been hired since Trump took office. The office is authorized by Congress to have 384 judges. Marks said that a large number of judges are eligible to retire, which could cut into any progress that DOJ makes in hiring new judges. New judges also don’t move as quickly as experienced ones, she said.

Under a Jan. 25 executive order on immigration enforcement, the Justice Department said in August that it had mobilized more than 100 immigration judges to hear cases at Department of Homeland Security detention facilities, either in-person or by video teleconferencing. Between Feb. 1 and July 31, immigration judges had issued nearly 28 percent more deportation orders as compared to the same time period last year, DOJ said.

Marks said that immigration judges had been warning officials about the backlog for years, and would continue to do so.

“The canaries in the coal mine are still gasping for air,” she said.”

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

Read Zoe’s entire report at the link.

The DOJ is: clueless. planless, incompetent, and totally unqualified to manage a system of the size and importance of the current US Immigration Court consistently with due process. Systemically, knowingly running a system that engages in Aimless Docket Reshuffling (“ADR”), puts long pending cases that can be tried at the end of the line (many years out), while engaging in unnecessary detention and hustling more recent arrivals through without a reasonable chance to obtain representation or present their claims for relief, indeed sometimes without any hearings at all, is already a “default” on due process. Greater reliance on already outdated and overwhelmed “televideo court equipment” will further compromise due process. Even now, as most Immigration Judges and attorneys who have to use EOIR Televideo courts will tell you, the system is NQRFPT (“Not Quite Ready For Prime Time”).  Jamming more cases into it is asking for a complete breakdown.

I’m actually somewhat surprised that no group has found a way to bring a class action seeking to shut down the entire Immigration Court System and the DHS Administrative Removal System until improvements are made so that they comply with due process.  Sort of like the litigation that eventually required some prison systems to come into compliance with constitutional norms. In some cases, this is even worse than prisons, since many individuals in immigration detention haven’t been convicted of any crimes; they are just asserting their statutory and constitutional rights to have a fair adjudication of their ability to remain in the US.

Also, how is a system that treats its own judges as “canaries gasping for breath in the coal mine” going to deliver on due process for those individuals expecting it from those same judges? It isn’t.

And Congress should not get off the hook either. This problem has been growing very publicly for years over several Administrations while Congress has failed to deliver on proposals for an independent US Immigration Court that have been kicking around for more than a decade!

None of the DOJ’s statements deal with the real solution here: use of prosecutorial discretion “PD” on a widespread basis to resolve most of these cases and take them off the Immigration Courts’ docket. That needs to be followed by serious negotiations with Congress for: 1) a realistic legalization program, 2) an increase in legal immigration to put our immigration laws more in line with the actual market conditions that are bringing, and will continue to bring, more immigrant workers to the US, and an independent Immigration Court where the capacity to adjudicate cases consistently with due process is a primary consideration in both DHS’s deciding how many cases to place on the docket and how individual judges manage their individual dockets. That’s simply making changes to bring the Immigration Court system and the immigration laws into line with the rest of the U.S. legal system and our overall needs to maintain and administer a much more robust and inclusive legal immigration system that wouldn’t waste money on impractical walls and on “gonzo” immigration enforcement ands unnecessary detention.

 

PWS

09-01-17

 

 

 

 

Related posts:

  1. MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!
  2. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  3. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  4. EXPOSED! — AILA’S JOHNSON SHOWS HOW “GONZO” INTENTIONALLY MISUSES DATA TO CREATE A FALSE ANTI-ASYLUM, ANTI-LAWYER NARRATIVE TO CONCEAL THE REAL GLARING PROBLEM DRIVING US IMMIGRATION COURT BACKLOGS — AIMLESS DOCKET RESHUFFLING (“ADR”) DRIVEN BY POLITICOS ATTEMPTING TO STACK THE COURT SYSTEM AGAINST DUE PROCESS AND TILT IT IN FAVOR OF DHS/ADMINISTRATION ENFORCEMENT INITIATIVES!!!!!!! — SURPRISE — By Far The Biggest Increase In Continuances Comes From DHS & EOIR Itself!

TWO NEW FROM HON. JEFFREY CHASE — 8TH Cir. Blows Away BIA For Failure To Enforce R’s Right To Cross-Examine — The Importance Of Expert Testimony In Immigration Court!

Here’s Jeffrey”s analysis of the 8th Circuit case, Patel v. Sessions:

https://www.jeffreyschase.com/blog/2017/8/31/a-reasonable-opportunity-to-cross-examine

And here are his practice tips on expert witnesses:

https://www.jeffreyschase.com/blog/2017/8/24/theimportance-of-expert-witnesses

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

I love Jeffrey’s clear, concise, practical analysis of complex issues!

The Patel case raises a recurring issue: How can a supposedly “expert” tribunal obviously hurrying to produce final orders of removal for the Administration’s deportation machine (thereby, probably not coincidentally, insuring their own job security) keep ignoring clear statutory and constitutional rights of individuals as well as their own precedents and those of Courts of Appeals? Unfortunately, the situation is likely to get worse before it gets better.

The Administration has announced that it’s looking for ways to deal with the backlog not by any rational means, but by ramming still more cases through the already overloaded system. Although the DOJ mouths “due process” that’s not true. As long as we have “gonzo enforcement” with hundreds of thousands of cases on the Immigration Courts’ dockets that should be settled out of court through grants of relief or prosecutorial discretion, there will continue to be insurmountable backlogs. And, as long as the Immigration Courts are part of the Executive Branch, lacking true judicial independence to put a stop to some of the more outrageous ICE and DOJ policies and practices, the problem will not be solved. Due process can’t be put on an assembly line. The only questions are if and when the Article III Courts will put a stop to the due process travesty in the Immigration Courts.  Or will they adopt the EOIR approach and “go along to get along.” Clearly, the Administration is banking on the latter.

I also note that the 8th Circuit is “hardly the 9th Circuit or even the 7th or 2d Circuits.”  Indeed, the 8th routinely defers to the BIA. Many critics say that the 8th gives the BIA far too much deference. So, when the 8th Circuit starts finding gaping holes in the BIA’s approach to due process in Immigration Court, we know that “we’ve got trouble, right here in River City.”

PWS

09-01-17

Related posts:

  1. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  2. DUE PROCESS UNDER ATTACK: ANOTHER “IMMIGRATION HARDLINER” MOVES OVER TO DOJ TO HELP GONZO TORMENT, TRASH, AND BULLY THE MOST VULNERABLE
  3. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  4. GONZO’S WORLD: THIS IS WHY HE STAYS: UNDERNEATH ALL THE “TRUMP NOISE” SESSIONS IS METHODICALLY ERADICATING DUE PROCESS, PERVERTING THE LAW, & TURNING ONE OF THE LARGEST FEDERAL COURT SYSTEMS INTO A “KILLING FLOOR” TARGETING OUR MOST VULNERABLE & DESERVING REFUGEES! — “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”

TRAC: US IMMIGRATION COURT BACKLOG CONTINUES TO GROW! — MORE JUDGES + GONZO ENFORCEMENT + GROSS MISMANAGEMENT = LESS DUE PROCESS!

http://trac.syr.edu/whatsnew/email.170831.html

 

“Immigration Court Backlog Climbs to 617,527 Cases
(31 Aug 2017) The latest available case-by-case court records show that as of the end of July 2017, the Immigration Court’s backlog continued to rise , reaching an all-time high of 617,527. For the first time, individuals with pending cases from El Salvador surpassed the numbers from Mexico in the court’s pending workload. There were a total of 134,645 pending cases involving citizens of El Salvador, edging past the 134,467 cases involving individuals from Mexico. In third place, with 102,532 pending cases were citizens from Guatemala.California continued to have the largest backlog with 115,991 cases pending at its court locations. Texas was second with 99,749 pending cases, followed by New York with 84,429. Both California and New York are continuing to see rising court backlogs. In contrast, court locations in Texas saw a small decline in July.

To see a snapshot of pending cases in Immigration Courts go to:

http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php

To drill further into these numbers, by nationality, court and hearing location go to the backlog tool at:

http://trac.syr.edu/phptools/immigration/court_backlog/

In addition, many of TRAC’s free query tools – which track the court’ backlog, new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through July 2017. 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”

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

According to rumors, under pressure from GOP State AGs and others in the White Nationalist base, the Trumpsters are close to terminating the DACA, thereby sending an additional 800,000 American young people into the already overwhelmed US Immigration Court system. See Jason Dzubow’s recent Asylumist post on the “100 year plan” to understand the cruel, wasteful, racist “parallel universe” in which the Trumpsters reside!

PWS

09-01-17

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. ELISE FOLEY @ HUFFPOST: TRUMP’S WHITE NATIONALIST AGENDA APPEARS ON TRACK TO SINK DREAMER AGREEMENT, PERHAPS RESULTING IN USG SHUTDOWN! – Sen. Durbin, Dems “Just Say No” To Restrictionist Measures!
  3. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  4. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?

N. RAPPAPORT IN THE HILL: Alternatives To The Border Wall!

http://thehill.com/blogs/pundits-blog/immigration/347359-congress-unlikely-to-pay-for-border-wall-but-trump-has-other

Nolan writes in his latest article:

“The Immigration Reform and Control Act of 1986 established a legalization program for undocumented aliens already in the United States and created employer sanctions to discourage employers from hiring undocumented aliens in the future.

That was 30 years ago, and the program still has not been fully implemented. It might be better to let the Department of Labor (DOL) deal with the job magnet.

Many American employers hire undocumented foreign workers because it is easy to exploit them. DOL enforces federal labor laws that were enacted to curb such abuses, such as the Fair Labor Standards Act which established a minimum wage, overtime pay, and other employment standards.

With additional funding, DOL could mount a large-scale, nationwide campaign to stop the exploitation of employees in industries known to hire large numbers of undocumented aliens, without basing the fines on the immigration status of the employees.

In contrast with Trump, President Obama focused his immigration enforcement program on aliens who had been convicted of serious crimes, had been caught near the border after an illegal entry, or had returned unlawfully after being deported.

Once an undocumented alien had succeeded in reaching the interior of the country, he was “home free.” It was extremely unlikely that he would be deported unless he was convicted of a serious crime. This was a powerful incentive to find a way to get past security measures on the border.

No deportable alien is safe from deportation under Trump’s enforcement policies.

This produced results very quickly. In April 2017, CBP reported a sharp decline in the number of aliens apprehended while making illegal crossings.

But Trump has to implement his enforcement policies to keep the magnet from coming back and he could benefit from implementing expedited removal proceedings.

As of the June 2017, the immigrant court’s backlog was 610,524 cases. This severely limited efforts to remove deportable aliens.

President Trump finessed his way around this problem by expanding the use of expedited removal proceedings in his Executive Order, Border Security and Immigration Enforcement Improvements.

In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, and has not been physically present for two years, can be deported without a hearing before an immigration judge, unless he establishes a credible fear of persecution.

Trump needs funding to be able to carry out a large-scale, nationwide program of expedited removal proceedings.

These measures would reduce the number of people trying to make illegal crossings, making border security much easier to achieve, even without his promised wall.”

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

Go on over to The Hill to read Nolan’s complete analysis.

I agree with Nolan and many in Congress that the border wall will be an ineffective waste of money. And, in the liteny of Trump lies, it has become clear that “Mexico will pay” is just another whopper.

I also agree with Nolan that more funding for Fair Labor Standards Act enforcement is a good idea. However, the Trump Administration is moving the other way on all regulatory enforcement except immigration.

I would oppose funding for expedited removal. I believe it is a clear denial of due process, particularly as carried out by this Administration. I recognize that to date most Federal Courts have taken a “head in the sand” approach to the serious constitutional issues raised by expedited removal.  But, I think that as Trump pushes the envelope the courts will eventually have to face up to the total lack of due process and safeguards in the current system.

In any event, whether expedited removal is unconstitutional or not, it’s bad policy. It should be rescinded, not expanded.

PWS

08-26-17

 

 

Related posts:

  1. THE HILL: N. Rappaport Believes That Expedited Removal Is the Key To Reducing The Immigration Court Backlog
  2. THE HILL: N. RAPPAPORT SAYS THAT EXPEDITED REMOVAL IS THE ANSWER TO IMMIGRATION COURT BACKLOGS – I DISAGREE!
  3. THE HILL: NOLAN SAYS THERE IS A BETTER WAY TO ADDRESS PROBLEMS AT ICE
  4. TAL @ CNN: TRUMP’S “GONZO” IMMIGRATION ENFORCEMENT POLICIES LIKELY TO FAIL AND ACTUALLY AGGRAVATE FORCES DRIVING UNDOCUMENTED MIGRATION!

TIME MAGGIE: DUE PROCESS TAKES ANOTHER HIT IN IMMIGRATION COURT WITH EOIR’S DISINGENUOUS MEMO DISCOURAGING CONTINUANCES IN IMMIGRATION COURT! — When Will The Article III Courts & Commentators Expose The REAL Fraud Being Fobbed Off On The Public By The Sessions DOJ & EOIR? — The DOJ Is Trying To Blame The “Champions Of Due Process” (Private Lawyers) For The “ADR” — Aimless Docket Reshuffling — That The DOJ Created And Actually Mandated— Hold The DOJ Fully Accountable For The Failure Of The U.S. Immigration Courts!

http://time.com/4902820/immigration-lawyers-judges-courts-continuance/

Tessa Berenson writes in Time:

“The president and attorney general have vowed to crack down on illegal immigration, and the new directive could help move cases through the system at a faster clip. Most immigration lawyers agree that the overloaded courts are a major issue. But they fear the end result will be more deportations as judges use the wide discretion afforded to them to curtail continuances. The Immigration and Nationality Act doesn’t establish a right to a continuance in immigration proceedings, Keller’s letter notes. They’re largely governed by a federal regulation which says that an “immigration judge may grant a motion for continuance for good cause shown.”

Immigration lawyers often rely heavily on continuances for their prep work because immigration law grants limited formal discovery rights. Unlike in criminal cases, in which the prosecution is generally required to turn over evidence to the defense, immigration lawyers often have to file a Freedom of Information Act request to find out what the government has on their client. These can take months to process.

“If their priority is speed, we all know that sounds really good, to be more efficient, but usually due process takes a hit when your focus is efficiency,” says Andrew Nietor, an immigration attorney based in San Diego. “By the time we are able to connect with our clients, that first court appearance might be the day after we meet somebody, so we haven’t had the opportunity to do the investigation and do the research. And up until several months ago, it was standard to give immigration attorneys at least one continuance for what they call attorney preparation. Now it’s not standard anymore.”

The Justice Department’s guidance says that “the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all,” and notes that “it remains general policy that at least one continuance should be granted” for immigrants to obtain legal counsel.

But the memo is more skeptical about continuances for attorney preparation. “Although continuances to allow recently retained counsel to become familiar with a case prior to the scheduling of an individual merits hearing are common,” it says, “subsequent requests for preparation time should be reviewed carefully.”

It remains to be seen if this careful review will streamline the ponderous system or add another difficulty for the harried lawyers and hundreds of thousands of immigrants trying to work their way through it. For Jeronimo, it may have been decisive. In mid-August, the judge found that the defense didn’t adequately prove Jeronimo’s deportation would harm his young daughter and gave him 45 days to voluntarily leave the United States. Now Jeronimo must decide whether to appeal his case. But he’s been held in a detention center in Georgia since March, and his lawyers worry that he has lost hope. He may soon be headed back to Mexico, five months after he was picked up at a traffic stop in North Carolina.”

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

Read the complete article at the link.

OK, let’s have a reality check here. The tremendous backlog is NOT caused by giving respondents time to find an attorney in an already overwhelmed system or by giving those overworked and under-compensated private attorneys time to adequately prepare their clients’ cases.

No, it’s caused by two things both within the control of the Government. The first is the abuse of the system, actively encouraged by this Administration, for cases of individuals who are law abiding members of the U.S. community, helping our nation prosper, who either should be granted relief outside the Immigrant Court process, or whose cases should be taken off the docket by the reasonable use of prosecutorial discretion (something that the Trump Administration eliminated while outrageously calling it a “return to the rule of law” — nothing of the sort — it’s a return to docket insanity enhanced by intentional cruelty).

Your tax dollars actually pay for the wasteful and counterproductive abuses being encouraged by the Trump Administration! Eventually, Congress will have to find a solution that allows all or most of these folks to stay. But, mindlessly shoving them onto already overwhelmed Immigration Court dockets is not that solution.

The second major cause is even more invidious: Aimless Docket Reshuffling (“ADR”) by the Government! The problematic continuances being given in this system — those of many months, or even many years — are forced upon Immigration Judges by EOIR and the DOJ, usually without any meaningful input from either the sitting Immigration Judges or the affected public. Immigration Judges are required to accommodate politically-motivated “changes in priorities” and wasteful transfer of Immigration Judges wth full dockets (which then must be reset, usually to the end of the docket, sometimes to another Immigration Judge) to other locations, often in detention centers, to support enforcement goals without any concern whatsoever for due process for the individuals before the court or the proper administration of justice within the U.S. Immigration Court system.

There is only one real cure for this problem: removal of the U.S. Immigration Courts from the highly politicized U.S. Department of Justice to an independent Article I Court structure that will focus  on due process foremost, and efficient, but fair, court administration. But, until then, it’s up to the press to expose what’s really happening here and to the Article III Courts to call a halt to this travesty.

The “heroes” of the U.S. Immigration Court system, dedicated NGOs and attorneys, many of them acting without compensation or with minimal compensation, are under attack by this Administration and the DOJ. Their imaginary transgression is to insist on a fair day in court for individuals trying to assert their constitutional right to a fair hearing. They are being scapegoated for problems that the U.S. Government has caused, aggravated, and failed to fix, over several Administrations.

The DOJ is creating a knowingly false narrative to cover up their failure to deliver due process in the U.S. Immigration Courts and to shift the blame to the victims and their representatives. A simple term for that is “fraud.”

If we allow this to happen, everyone will be complicit in an assault not only on American values but also on the U.S. Constitution itself, and the due process it is supposed to guarantee for all. If it disappears for the most vulnerable in our society, don’t expect it to be there in the future when you or those around you might need due process of law. And, when you don’t get due process, you should also expect the Government to blame you for their failure.

PWS

08-19-17

 

Related posts:

  1. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  2. NICKOLE MILLER IN THE WASHPOST: The Truth About Vulnerable Asylum Seekers Refutes Sessions’s False Narrative!
  3. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  4. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

NEW FROM TAL KOPAN AT CNN: DACA ON THE ROPES — “Only Congress can enact a permanent solution to the DACA situation!”

http://www.cnn.com/2017/08/15/politics/daca-anniversary-peril/index.html

Tal reports:

“Washington (CNN)Tuesday marks the fifth anniversary of a program that protects young undocumented immigrants from deportation — but supporters worry this one could be its last.

The Deferred Action for Childhood Arrivals program, or DACA, was implemented in 2012 under President Barack Obama, and President Donald Trump’s administration has continued running despite heated rhetoric against it from Trump on the campaign trail.
But DACA has arguably never been on shakier ground, and advocates for the program are desperately trying to protect it, including with a planned march Tuesday on the White House.
Nearly 800,000 undocumented immigrants have benefited from DACA, which protects individuals who were brought to the US illegally as children from deportation, and offers them the ability to work, study and drive legally. Applicants must meet certain criteria, pass a background check and maintain a clean record.

A storm is brewing for DACA this September

A storm is brewing for DACA this September
But despite the fact that the administration has continued to issue permits, concerns are increasing that the program could be ended.
“DACA is under grave threat,” Nevada Democratic Sen. Catherine Cortez Masto said on a conference call with reporters Monday.
Ten state attorneys general, led by Texas Attorney General Ken Paxton, have issued an ultimatum to the Trump administration — sunset DACA by September 5, or we’ll challenge it in court. The attorneys general have threatened to petition a court that’s considering a similar but separate Obama administration deferred action program, for parents, to also weigh the legality of DACA.
Experts believe that given the makeup of the court hearing the case, and its previous ruling against the parents program, the judges involved would likely strike down DACA as well.
If the court allows arguments against DACA, the Justice Department would be forced to decide whether it will defend the program. While Trump has recently spoken about how sympathetic he is to the “Dreamers” who receive DACA, saying the choice is “very, very hard to make,” he campaigned on a pledge to immediately rescind it. And the US attorney general, former Sen. Jeff Sessions, has been a chief opponent of the program.
The White House offered a cryptic statement on the program’s future, expressing only concern with illegal immigration.
“The President’s priority remains protecting the jobs, wages and security of American workers, families and communities — including the millions of Hispanic and African American workers disadvantaged by illegal immigration,” an administration official said.
On the call with reporters and a DACA recipient, Masto and California Democratic Sen. Kamala Harris extolled its virtues, citing estimates that the US economy would lose hundreds of billions of dollars without the contributions of DACA recipients.
Trump: DACA decision 'very, very hard to make'
Trump: DACA decision ‘very, very hard to make’
“This is not just about what is morally right, this is not only a point about what is right in terms of fighting for the ideals of our country,” Harris said. “This is also right and smart in terms of public benefits.”
Both are co-sponsors of one bipartisan proposal to make the program permanent in Congress, the Dream Act, which also has three Republican co-sponsors. It’s one of four proposed bills that would codify DACA if the administration were to rescind it or the courts were to strike it down.
The Department of Justice did not respond to a CNN request for comment.
US Citizenship and Immigration Services, the division of the Department of Homeland Security, said the program remains under review.
“The Department of Homeland Security’s stance remains the same — the future of the DACA program continues to be under review with the administration,” said USCIS press secretary Gillian Christensen. “The President has remarked on the need to handle DACA with compassion and with heart. As a matter of policy, we do not comment on pending litigation, but we have said before only Congress can enact a permanent solution to the DACA situation.”
**********************************************************
I think the last statement in Tal’s article, from USCIS, hits the nail on the head. Congress has to come up with a solution to this issue or there will be chaos. Imagine another 800,000 cases of young people thrown into the U.S. Immigration Courts on top of the 610,000 cases already there! It’s Jason Dzubow’s vision of “Trump’s 100 year deportation plan” in action. http://immigrationcourtside.com/2017/08/14/jason-dzubow-in-the-asylumist-trumps-101-year-plan-for-removals-malevolence-tempered-by-incompetence/
As Nolan Rappaport has pointed out, it’s unlikely that any of the pending bills, in their present forms, will attract enough GOP support to be enacted. http://immigrationcourtside.com/2017/08/07/n-rappaport-in-the-hill-dems-dreamer-bill-offers-false-hope/
But perhaps Democrats and some willing Republicans can work on a compromise legislative solution. Otherwise, the results aren’t likely to be pretty — for the Dreamers or for our country’s future.
PWS
08-15-17

Related posts:

  1. COURTSIDE COMMENTARY/ANALYSIS: AG Jeff “Gonzo Apocalypto” Sessions Might Be A Clown 🤡 — But His White Nationalist Plan To Destroy The American Justice System Is No Joke — He Has Already Done Untold Damage To Our Country & Our Rights — And, He And His White Supremacist Buddy Steve Bannon, The Alt-Right, And Other Haters Are Just Getting Started On Their Plan To Turn America Into A “Whites Only” Paradise!
  2. TAL KOPAN & JIM ACOSTA ON CNN: Speaker Ryan Says Trump Should Delay DACA Decision While Congress Works On Extension! — Also, Top Seattle Execs Urge Trump To Keep DACA
  3. WASHINGTON POST EDITORIAL RIPS TRUMP/SESSIONS “GONZO” IMMIGRATION AGENDA AS “ANTI-AMERICAN!”– White Nationalist Inspired Restrictionism Is Suppressing The Real Dialogue We Should Be Having!
  4. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?

JASON DZUBOW IN THE ASYLUMIST: TRUMP’S 101 YEAR PLAN FOR REMOVALS! — “Malevolence tempered by incompetence!”

http://www.asylumist.com/2017/07/27/president-trumps-101-year-deportation-plan/

Jason writes:

“Joseph Stalin and Mao Zedong had their five-year plans. Nikita Khrushchev had his seven-year plan. And now President Trump has a 101-year plan. That’s how long it will take to deport the country’s 11 million undocumented residents if current trends continue.

Happy Birthday! Now, get the hell out of my country!

The most recent statistics on case completions in Immigration Court show that the Trump Administration has issued an average of 8,996 removal (deportation) orders per month between February and June 2017 (and 11,000,000 divided by 8,996 cases/month = 1,222.8 months, or 101.9 years). That’s up from 6,913 during the same period last year, but still well-below the peak period during the early days of the Obama Administration, when courts were issuing 13,500 removal orders each month.

Of course, the Trump Administration has indicated that it wants to ramp up deportations, and to that end, the Executive Office for Immigration Review or EOIR–the office that oversees the nation’s Immigration Courts–plans to hire more Immigration Judges (“IJs”). Indeed, Jefferson Beauregard Sessions, the Attorney General (at least for now) announced that EOIR would hire 50 more judges this year and 75 next year.

Assuming EOIR can find 125 new IJs, and also assuming that no currently-serving judges retire (a big assumption given that something like 50% of our country’s IJs are eligible to retire), then EOIR will go from 250 IJs to 375. So instead of 101 years to deport the nation’s 11 million undocumented residents, it will only take 68 years (assuming that no new people enter the U.S. illegally or overstay their visas, and assuming my math is correct–more big assumptions).

But frankly, I’m doubtful that 68 years–or even 101 years–is realistic. It’s partly that more people are entering the population of “illegals” all the time, and so even as the government chips away at the 11,000,000 figure, more people are joining that club, so to speak. Worse, from the federal government’s point of view, there is not enough of a national consensus to deport so many people, and there is significant legal resistance to Mr. Trump’s immigration agenda.

In addition to all this, there is the Trump Administration’s modus operandi, which is best characterized as malevolence tempered by incompetence. One statistic buried in the recent deportation numbers illustrates this point. In March 2017, judges issued 10,110 removal orders. A few months later, in June, judges issued 8,919 removal orders.

This means that the number of deportation orders dropped by 1,191 or about 11.8%. How can this be? In a word: Incompetence (I suppose if I wanted to be more generous—which I don’t—I could say, Inexperience). The Trump Administration has no idea how to run the government and their failure in the immigration realm is but one example.

There are at least a couple ways the Administration’s incompetence has manifested itself at EOIR.

One is in the distribution of judges. It makes sense to send IJs where they are needed. But that’s not exactly what is happening. Maybe it’s just opening night jitters for the new leadership at EOIR. Maybe they’ll find their feet and get organized. But so far, it seems EOIR is sending judges to the border, where they are underutilized. While this may have the appearance of action (which may be good enough for this Administration), the effect—as revealed in the statistical data—is that fewer people are actually being deported.

As I wrote previously, the new Acting Director of EOIR has essentially no management experience, and it’s still unclear whether he is receiving the support he needs, or whether his leadership team has the institutional memory to navigate the EOIR bureaucracy. Perhaps this is part of the reason for the inefficient use of judicial resources.

Another reason may be that shifting judges around is not as easy as moving pieces on a chess board. The IJs have families, homes, and ties to their communities. Not to mention a union to protect them (or try to protect them) from management. And it doesn’t help that many Immigration Courts are located in places that you wouldn’t really want to live, if you had a choice. So getting judges to where you need them, and keeping them there for long enough to make a difference, is not so easy.

A second way the Trump Administration has sabotaged itself is related to prosecutorial discretion or PD. In the pre-Trump era, DHS attorneys (the “prosecutors” in Immigration Court) had discretion to administratively close cases that were not a priority. This allowed DHS to focus on people who they wanted to deport: Criminals, human rights abusers, people perceived as a threat to national security. In other words, “Bad Hombres.” Now, PD is essentially gone. By the end of the Obama Administration, 2,400 cases per month were being closed through PD. Since President Trump came to office, the average is less than 100 PD cases per month. The result was predictable: DHS can’t prioritize cases and IJs are having a harder time managing their dockets. In essence, if everyone is a deportation priority, no one is a deportation priority.

Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement.

Another “fix” is to prevent people from coming here in the first place. Build the wall. Deny visas to people overseas. Scare potential immigrants so they stay away. Illegally turn away asylum seekers at the border. Certainly, all this will reduce the number of people coming to America. But the cost will be high. Foreign tourists, students, and business people add many billions to our economy. Foreign scholars, scientists, artists, and other immigrants contribute to our country’s strength. Whether the U.S. is willing to forfeit the benefits of the global economy in order to restrict some people from coming or staying here unlawfully, I do not know. But the forces driving migration are powerful, and so I have real doubts that Mr. Trump’s efforts will have more than a marginal impact, especially over the long run. And even if he could stop the flow entirely, it still leaves 11 million people who are already here.

There is an obvious alternative to Mr. Trump’s plan. Instead of wasting billions of dollars, harming our economy, and ripping millions of families apart, why not move towards a broad legalization for those who are here? Focus on deporting criminals and other “bad hombres,” and leave hard-working immigrants in peace. Sadly, this is not the path we are on. And so, sometime in 2118, perhaps our country will finally say adieu to its last undocumented resident.”

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

Amen!

PWS

08-14-17

 

Related posts:

  1. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  2. MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!
  3. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  4. THE NY TIMES TAKES YOU INSIDE THE “NERVE CENTER” OF THE WHITE NATIONALIST EMPIRE: TRUMP’S “GONZO” IMMIGRATION POLICIES DRIVEN BY XENOPHOBIA, RACISM, IRRATIONAL FEAR, FAKE NEWS, MISINFORMATON, AND BIAS! – Trump & Cronies Deny Our Nation’s Immigrant Past While Seeking To Destroy Our Future As A Powerful and Diverse Democracy!

ATTENTION RETIRED U.S. IMMIGRATION JUDGES — EOIR ANNOUNCES PLANS TO RECRUIT REHIRED ANNUITANTS FOR 58 COURT LOCATIONS!

Attached is the text of an e-mail forwarded to me by Hon. Dana Leigh Marks, President of the National Association of Immigration Judges, which has been very active in working with EOIR to tap into the resource of retired U.S. Immigration Judges:

From: Swanwick, Daniel (EOIR)
Sent: Monday, August 14, 2017 3:17 PM
To: Marks, Dana (EOIR) <Dana.Marks@EOIR.USDOJ.GOV>; Slavin, Denise (EOIR) <Denise.Slavin@EOIR.USDOJ.GOV>
Cc: Mart, H. Kevin (EOIR) <H.Kevin.Mart@EOIR.USDOJ.GOV>; Scheinkman, Rena (EOIR) <Rena.Scheinkman@EOIR.USDOJ.GOV>; Maggard, Print (EOIR) <Print.Maggard@EOIR.USDOJ.GOV>; Cheng, Mary (EOIR) <Mary.Cheng@EOIR.USDOJ.GOV>; Keller, Mary Beth (EOIR) <MaryBeth.Keller@EOIR.USDOJ.GOV>
Subject: Reemployed Annuitant IJs
Dear Judges Marks and Slavin:
We are happy to report that the Agency will be posting an advertisement very soon seeking to hire retired IJs.  We know this is something NAIJ has wanted for a long time, and we are excited about the prospects of having retired IJs back on board to assist with our critical mission.  While the specifics of the advertisement are still in flux, we expect to advertise for all 58 court locations, as well as the Falls Church VTC location.  Selectees will be hired as intermittent employees, which likely will allow for flexibilities in their schedules to account for the their personal preferences, as well as to meet varying needs of the Agency.  Selectees also will be expected to be available to travel, as necessary, to meet the mission.  Retired IJs will be hired pursuant to the Reemployment of Annuitants regulation (5 C.F.R. § 837), as well as accompanying OPM guidance,available at, https://www.chcoc.gov/content/reemployment-civilian-retirees-under-national-defense-authorization-act-fiscal-year-2010-1.  To assist NAIJ and potential applicants in understanding the impact of returning as a reemployed annuitant, the Agency has prepared the attached reference sheet.
We appreciate your efforts in spreading the word to retired IJs that this advertisement will be posted shortly.  We will circle back with you when we have more specific information about when the advertisement will be posted.
Thank you,
Dan
Daniel L. Swanwick
Attorney Advisor
Office of the Chief Immigration Judge
5107 Leesburg Pike, Suite 2500
Falls Church, VA  22041
703-605-1381
***************************************************************
Sounds like a smart idea! Congrats to the NAIJ and EOIR for working together to make it happen.
PWS
08-14-17

Related posts:

  1. MUST SEE TV FROM PBS: Judge Dana Leigh Marks Explains The Dire Backlogs In U.S. Immigration Courts & Why They Are Becoming Worse Every Day!
  2. ASSEMBLY LINE “JUSTICE” IS “INJUSTICE” — U.S. Immigration Judges Are NOT “Piece Workers,” & Fair Court Decisions Are Not “Widgets” That Can Be Quantified For Bogus “Performance Evaluations!” — Are Three Wrong Decisions “Better” Than One Right Decision?
  3. WashPost LEAD EDITORIAL BLASTS SESSIONS’S ATTACK ON INDEPENDENCE OF U.S. IMMIGRATION JUDGES — Time For Congressional Action To Preserve Due Process!
  4. GONZO’S WORLD: JUDICIAL REBELLION – Less Than One Year Into Gonzo’s Reign at The DOJ, One of America’s Most Conservative Judiciaries Seeks Protection From His Plans to Politicize The U.S Immigration Courts!

POLITICO HIGHLIGHTS LACK OF DUE PROCESS, CULTURAL AWARENESS, PROPER JUDICIAL TRAINING IN U.S. IMMIGRATION COURT’S HANDLING OF VIETNAMESE DEPORTATION CASE!

http://www.politico.com/story/2017/08/14/trump-immigration-crackdown-vietnam-241564

“Trump’s immigration crackdown hits Vietnam
Inside the case of one man who feared torture because of his Montagnard roots, but was deported last month.
By DAVID ROGERS 08/14/2017 05:39 AM EDT
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President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.

The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.

. . . .

The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.

Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.

At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.

POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.

Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.

On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.

Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.

Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”

Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.

The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.

Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.

Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.

“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”

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

Read Rogers’s much longer full article at the link.

It’s not surprising that this case arose in the oft-criticized Atlanta Immigration Court where due process is routinely subordinated to achieving high levels of rapid removals. Unfortunately, as Jason Dzubow pointed out in a blog on The Asylumist that I previously featured, “We are all in Atlanta now!”

http://immigrationcourtside.com/2017/07/20/in-immigration-circles-the-atlanta-court-is-known-as-where-due-process-goes-to-die-will-it-be-the-new-norm-the-asylumist-jason-dzubow-says-were-all-in-atlanta-now/

Additionally, the SPLC has documented that notwithstanding earlier complaints, EOIR has done little or nothing to stop the unprofessional conduct and anti-migrant bias demonstrated by some of the U.S. Immigration Judges at the Stewart, GA Immigration Court.

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

Indeed, it appears that the Trump-Sessions group actually likes the focus on assembly-line removals without much regard for fairness or due process that they have seen coming out of the Atlanta Court. After all, it produces high numbers of final orders of removal which, according to the latest EOIR press release, has replaced guaranteeing fairness and due process as the objective of the U.S. Immigration Courts. As Jason Dzubow noted in the above-linked blog, the Administration has rewarded those who have learned how due process is denied in Atlanta with key positions at DHS and EOIR.

And, training and continuing legal education for Immigration Judges was one of the earliest casualties of the “Sessions era” at the DOJ. If the message from on high is “move ’em all out asap” — preferably by in absentia hearings without any due process or in hearings conducted in detention with the migrants unrepresented — why would any judge need training in the law, due process, or preparing carefully constructed judicial opinions?

Harken back to the days of the Bush II Administration. After Ashcroft’s “purge of the BIA” and following 9-11, some Immigration Judges and Board Members assumed that it was “open season” on migrants. How many removal orders were being churned out and how fast they were being completed became more important that what was being done (or more properly, what corners were being cut) to produce the final orders.

As the work of the BIA and the Immigration Courts deteriorated and became sloppier and sloppier, and as the incidents of Immigration Judges’ being rude, belligerent, and generally unprofessional to the individuals and private attorneys coming before them mounted, the Article III Federal Courts pushed back. Published opinions began “blistering” the performance of individual Immigration Judges and BIA Members by name, some prominent Federal Judges on both the conservative and liberal sides of the equation began speaking out in the media, and the media and the internet featured almost daily stories of the breakdown of professionalism in the U.S. Immigration Courts. The Courts of Appeals also remanded BIA final orders, many of which summarily affirmed problematic Immigration Court rulings, by the droves, effectively bringing the Bush Administration’s “deportation express” to a grinding halt as the BIA was forced to further remand the cases to the Immigration Courts for “do-overs.”

Finally, it became too much for then Attorney General Alberto Gonzalez. Although Gonzalez will hardly go down in history as a notable champion of due process, he finally issued what was basically a “cease and desist order” to the BIA and the Immigration Judges. Unfortunately, rather than admitting the primary role of the DOJ and the Administration in the disaster, and changing some of the DOJ policies and procedures that contributed to the problem, Gonzalez effectively chose to blame the whole debacle on the Immigration Judges, including those who didn’t participate in the “round ’em up and move ’em out” spectacle spawned by Administration policies. Gonzalez ordered some reforms in professionalism, discipline, and training which had some shot term effects in improving due process, and particularly the results for asylum seekers, in Immigration Court.

But, by the present time, EOIR has basically returned to the “numbers over quality and due process” emphasis. The recent EOIR press release touting increased removals (not surprisingly grants of relief to migrants decreased at the same time) in response to the President’s immigration enforcement initiatives clearly shows this changed emphasis.

Also, as Rogers notes in his article, the BIA and some Immigration Judges often apply an “ahistorical” approach under which the lessons of history are routinely ignored. Minor, often cosmetic, changes such as meaningless or ineffective reforms in statutes and constitutions, appointment of ombudsmen, peace treaties, cease fires, and pledges to clean up corruption and human rights abuses (often issued largely to placate Western Governments and NGOs to keep the foreign aid money flowing) are viewed by the BIA and Immigration Judges as making immediate “material improvements” in country conditions in asylum cases, although the lessons of history and common sense say otherwise.

Sadly, the past appears to be prologue in the U.S. Immigration Courts. It’s past time for Congress to create and independent, Article I U.S. Immigration Court.

PWS

08-14-17

 

 

 

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  3. THE ASYLUMIST, JASON DZUBOW ON GONZO’S “WAR ON ASYLUM APPLICANTS & DUE PROCESS” – “His maliciousness is exacerbated by his incompetence.”
  4. THE HILL: N. RAPPAPORT SAYS THAT EXPEDITED REMOVAL IS THE ANSWER TO IMMIGRATION COURT BACKLOGS – I DISAGREE!

TRUMP’S “GONZO” ENFORCEMENT POLICIES PRODUCE MORE REMOVAL ORDERS BUT FEWER ACTUAL DEPORTATIONS! — CRIMINAL DEPORTATIONS FALL AS DHS PICKS ON NON-CRIMINALS! — MINDLESS ABUSE OF ALREADY OVERWHELMED IMMIGRATION COURT DOCKETS ACTUALLY INHIBITS ABILITY TO CONCENTRATE ON CRIMINALS!

Read this eye opener from Maria Sacchetti in the Washington Post about how the Administration manipulates data to leave a false impression of effective law enforcement.

https://www.washingtonpost.com/local/immigration/trump-is-deporting-fewer-immigrants-than-obama-including-criminals/2017/08/10/d8fa72e4-7e1d-11e7-9d08-b79f191668ed_story.html?hpid=hp_hp-more-top-stories_immigration-540am%3Ahomepage%2Fstory&utm_term=.a8889396e334

“By Maria Sacchetti August 10 at 9:43 PM
President Trump has vowed to swiftly deport “bad hombres” from the United States, but the latest deportation statistics show that slightly fewer criminals were expelled in June than when he took office.

In January, federal immigration officials deported 9,913 criminals. After a slight uptick under Trump, expulsions sank to 9,600 criminals in June.

Mostly deportations have remained lower than in past years under the Obama administration. From January to June, Immigration and Customs Enforcement deported 61,370 criminals, down from 70,603 during the same period last year.

During the election, Trump vowed to target criminals for deportation and warned that they were “going out fast.” Later, he suggested he would try to find a solution for the “terrific people” who never committed any crimes, and would first deport 2 million to 3 million criminals.

But analysts say he is unlikely to hit those targets. Since January, immigration officials have deported more than 105,000 immigrants, 42 percent of whom had never committed any crime.

Last year, a total of 121,170 people were deported during the same period, and a similar percentage had no criminal records.

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John Sandweg, the former acting director of Immigration and Customs Enforcement, said part of the reason for the decline is that illegal border crossings have plunged since Trump took office pledging to build a “big, beautiful” wall and crack down on illegal immigration. Immigrants caught at the border accounted for a significant share of deportations under the Obama administration.

 

Another factor, however, is that immigration officials are arresting more people who never committed any crime — some 4,100 immigrants in June, more than double the number in January — clogging the already backlogged immigration courts and making it harder to focus on criminals.

Immigration and Customs Enforcement released the deportation figures, which the Post had requested, late Thursday, two days after the Justice Department announced that immigration courts ordered 57,069 people to leave the United States from February to July, a nearly 31 percent increase over the previous year.

However, Justice officials have not said how many of the immigrants ordered deported were actually in custody — or if their whereabouts are even known. Every year scores of immigrants are ordered deported in absentia, meaning they did not attend their hearings and could not immediately be deported.

The deportation figures come as the Trump administration is fighting with dozens of state and local officials nationwide over their refusal to help deport immigrants, and as the administration is attempting to reduce legal and illegal immigration.”

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

It appears that many of the increased removal orders touted by DOJ/EOIR earlier this week might have been “in absentia” orders, issued without full due process hearings and all too often based on incorrect addresses or defective notices. Some of those orders turn out to be unenforceable. Many others require hearings to be reopened once the defects in notice or reasons for failure to appear are documented. But, since there wild inconsistencies among U.S. Immigration Judges in reopening in absentia cases, “jacking up” in absentia orders inevitably produces arbitrary justice.

The article also indicates that the Administration’s mindless overloading of already overwhelmed U.S. Immigration Courts with cases of non-criminal migrants has actually inhibited the courts’ ability to concentrate on criminals.

Taxpayer money is being squandered on “dumb” enforcement and a “captive court system” that no longer functions as a provider of fairness, due process, and justice. How long will legislators and Article III judges continue to be complicit in this facade of justice?

PWS

08-11-17

 

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!
  3. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  4. MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!

“NORMALIZING” THE ABSURD: While EOIR Touts Its Performance As Part Of Trump’s Removal Machine, Disingenuously Equating Removals With “Rule of Law,” The Ongoing Assault On Due Process In U.S. Immigration Courts Continues Unabated — Read The Latest SPLC Complaint About The Judges In The Stewart Detention Facility!

What if the U.S. Supreme Court proudly announced that as part of President Trump’s initiative to deregulate it had struck down 30% more regulations since Trump took office? What if the U.S. Court of Appeals for the Second Circuit announced that as part of the Administrations’s War on Drugs they had reassigned more U.S. District Judges to pretrial detention facilities and had produced 30% more convictions and 40% longer sentences for drug offenders than under the previous Administration. Might raise some eyebrows! Might show a lack of independence and due process in the Courts and lead one to believe that at least some U.S. Judges were betraying their duties to act impartially and their oaths to uphold the U.S. Constitution.

But yesterday, in truly remarkable press release, America’s largest court system, the United States Immigration Court proudly announced that they had joined the President’s xenophobic crusade against foreign nationals by assigning more Immigration Judges to railroad out of the country individuals detained, mostly without counsel, in remote locations along the Southern Border. EOIR touted that over 90% of the individuals in detention facilities lost their cases and were ordered removed from the U.S. (although as anyone familiar with the system knows, many of these individuals are refugees who have succeeded at rates of 43% to 56% on their claims over the past five fiscal years). To add insult to injury, EOIR had the audacity to caption its press release “Return to Rule of Law in Trump Administration!”

Don’t believe me? Check out the full press release here:

“Department of Justice

Office of Public Affairs

FOR IMMEDIATE RELEASE

Tuesday, August 8, 2017

Return to Rule of Law in Trump Administration Marked by Increase in Key Immigration Statistics

The Executive Office of Immigration Review today released data on orders of removal, voluntary departures, and final decisions for the first six months of the Trump Administration.

 

The data released for Feb. 1, 2017 – July 31, 2017 is as follows:

 

  • Total Orders of Removal [1]: 49,983
    • Up 27.8 percent over the same time period in 2016 (39,113)

 

  • Total Orders of Removal and Voluntary Departures [2]: 57,069
    • Up 30.9 percent over the same time period in 2016 (43,595)

 

  • Total Final Decisions [3]: 73,127
    • Up 14.5 percent over the same time period in 2016 (63,850)

 

Pursuant to President Trump’s Jan. 25 Executive Order, “Border Security and Immigration Enforcement Improvements,” the Department of Justice mobilized over one hundred existing Immigration Judges to Department of Homeland Security (DHS) detention facilities across the country. Over 90 percent of these cases have resulted in orders requiring aliens to depart or be removed from the United States. The Justice Department has also hired 54 additional Immigration Judges since President Trump took office, and continues to hire new Immigration Judges each month.

 

In addition to carrying out the President’s Executive Order, the Justice Department is also reviewing internal practices, procedures, and technology in order to identify ways in which it can further enhance Immigration Judges’ productivity without compromising due process.

 

[1] An “order of removal” by an Immigration Judge results in the removal of an illegal alien from the United States by the Department of Homeland Security.

[2] Under an order of “voluntary departure”, an illegal alien agrees to voluntarily depart the United States by a certain date. If the illegal alien does not depart, the order automatically converts to an order of removal.

[3] A “final decision” is one that ends the proceeding at the Immigration Judge level such that the case is no longer pending.

 

 

 

Topic(s):

Immigration

Component(s):

Executive Office for Immigration Review

Press Release Number:

17-889″

 

Yet, the absurdity of something that once purported to be a “court system” dedicated to guaranteeing “fairness and due process for all,” becoming part of the Administration’s border enforcement machine, stomping on the due process rights of those it was supposed to protect, went largely unnoticed in the media.

But, wait a minute, it gets worse! Recently, the widely respected journalist Julia Preston, now writing for the Marshall Project, told us how U.S. Immigration Judges in Charlotte, NC mock due process and fairness for asylum seekers.

http://immigrationcourtside.com/2017/07/31/u-s-immigration-courts-apear-stacked-against-central-american-asylum-applicants-charlotte-nc-approval-rates-far-below-those-elsewhere-in-4th-circuit-is-precedent-being-misapplied/

Now, the Southern Poverty Law Center (“SPLC”) details how, notwithstanding previous complaints, eyewitnesses have documented the attack on fundamental fairness and due process by U.S. Immigration Judges at the DHS Stewart Detention Facility (why would “real judges” be operating out of a DHS Detention Facility?). Here’s a summary of the report from SPLC:

SPLC DEMANDS DEPARTMENT OF JUSTICE TAKE ACTION AGAINST IMMIGRATION JUDGES VIOLATING DETAINEES’ CONSTITUTIONAL RIGHTS

August 08, 2017

Some judges at the Stewart Immigration Court in Georgia routinely break the rules of professional conduct and continue to violate the constitutional rights of detainees – failures that require action, including the possible removal of one judge from the bench, according to a complaint the SPLC lodged with the U.S. Justice Department’s Executive Office for Immigration Review (EOIR) today.

The complaint, which comes almost a year after the SPLC and Human Rights First notified the agency about the judges, describes how they fail to explain basic legal information to immigrants, or even demonstrate the necessary dignity and courtesy the rules of conduct require.

The complaint notes that after one man told a judge that he had grown up in the United States, the judge said that if he were truly an American, he “should be speaking English, not Spanish.” The findings come after the SPLC spent a month observing the hearings of 436 people.

The federal agency has claimed that it initiated discussions with the judges after the initial complaint was filed in late August 2016, but the SPLC’s courtroom observers and its experience representing detainees continue to uncover issues at the court, which is inside the privately operated Stewart Detention Center in rural Lumpkin, Georgia.

“The people appearing before this court are already being held at the Stewart Detention Center, often far from their family and friends,” said Dan Werner, director of the SPLC’s Southeast Immigrant Freedom Initiative, which represents immigrants detained at Stewart. “They are scared and unsure of their rights when they go before judges whose behavior gives no assurance that they’ll receive a fair hearing. In fact, their behavior makes a mockery of the legal system.”

The SPLC’s courtroom observers found a number of issues, including judges failing to provide interpretation services for the entire court proceeding. They also failed to provide rationales for their decisions, provide written notification about future proceedings to the detainees, or grant routine procedural motions.

The complaint describes how Judge Saundra Arrington stands out for her lack of professionalism and hostility toward immigrant detainees – behavior warranting reprimand, suspension or even removal from the bench, according to the complaint.

Arrington, who goes by the last name Dempsey but is referred to as Arrington in EOIR records, began hearings with one immigrant by prejudicially noting he had a “huge criminal history,” comprised of nine convictions for driving without a license over 15 years. It was Arrington who told a detainee that he should speak English if he grew up in the United States and believed he was American.

She also refused to allow two attorneys appear on behalf of an immigrant, stating that there may be “one lawyer per case” despite attorneys explaining they had filed the necessary paperwork. Two attorneys, however, were allowed to appear on behalf of Immigration and Customs Enforcement Office of Chief Counsel.

Judge Dan Trimble, according to the complaint, denied bond for a detainee without looking at the bond motion. He also rarely refers detainees to the detention center’s “Legal Orientation Program,” which provides information about court proceedings and offers assistance.

“The Department of Justice must take action to stop this behavior that is undermining the legal system,” said Laura Rivera, SPLC staff attorney. “Every day that this behavior is allowed to continue is a day dozens of people have their rights denied.”

The SPLC launched the Southeast Immigrant Freedom Initiative (SIFI) at the detention center earlier this year to provide free legal representation to immigrants who have been detained and are facing deportation proceedings.

A recent national study found that between 2007 and 2012, only 6 percent of detainees at the Stewart Detention Center were represented by counsel – far below the national representation rate of 37 percent, according to the SPLC complaint. Immigrants with counsel are approximately 20 times more likely to succeed in their cases.

Beginning this month, SIFI will expand to other detention centers throughout the Southeast. When fully implemented, it will be the largest detention center-based deportation defense project in the country.

And, here’s a link to the complete shocking report.

eoircomplaintletter

Folks, all of the abuses detailed in this post are being carried out by U.S. government officials at EOIR charged with protecting the due process rights of vulnerable migrants and asylum seekers. In other words, under pressure from the Trump Administration and the Sessions DOJ, some EOIR employees have disregarded their duty to the U.S. Constitution to provide due process for vulnerable migrants in Removal Proceedings. How long will the pathetic mockery of justice masquerading as “judicial proceedings” that is occurring in some (certainly not all) parts of the U.S. Immigration Court system be allowed to continue?

PWS

08-10-17

 

 

 

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!
  3. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  4. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!

DEPORTATIONS RISE UNDER TRUMP, BUT BORDER CROSSINGS ALSO CONTINUE TO TICK UPWARDS! — Read My OpEssay: “Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention?”

https://www.washingtonpost.com/local/immigration/deportation-orders-up-under-trump-fewer-prevail-in-immigration-court/2017/08/08/d3f0a6a6-7c74-11e7-9d08-b79f191668ed_story.html?utm_term=.848b8a83c250&wpisrc=nl_daily202&wpmm=1

Maria Sacchetti reports in the Washington Post:

“Federal immigration courts ordered 57,069 people to leave the United States in the first six months of the Trump administration, up nearly 31 percent over the same period last year, the Justice Department announced Tuesday.

Additionally, 16,058 people prevailed in their immigration cases, or had them closed, allowing them to stay in the United States, according to the data, which tallied orders issued from Feb. 1 to July 31. That total marked a 20.7 percent drop from the 20,255 immigrants who prevailed at the same time last year.

In a news release, the Justice Department said the notoriously backlogged court system is making a return to the “rule of law” under President Trump, who has vowed to speed deportations. But officials did not say how many of the orders were issued in absentia, meaning to immigrants who did not attend their hearings and therefore could not immediately be deported.

The Washington Post reported last week that thousands of immigrants, some seeking protection from violence in their homelands, have missed their court dates in recent years, often because they did not know about them or were afraid to show up. Advocates for immigrants have also raised concern about the lack of legal aid for immigrants, especially for those in immigration jails.

Last month, the president of the National Association of Immigration Judges said courts are severely understaffed, with about 300 immigration judges juggling a quickly rising caseload. An estimated 600,000 cases are pending nationwide.

United We Dream, an immigrant youth-led organization, protested ICE raids at Lafayette Square near the White House in February. (Linda Davidson/The Washington Post)

Unlike the traditional federal court system, which is independent of the executive branch of government, immigration courts are administered by the Justice Department.

That agency said that from Feb. 1 to July 31, judges issued 73,127 final immigration decisions, an increase of 14.5 percent over the same period in 2016.

Of those decisions, 49,983 were deportation orders, an increase of nearly 28 percent from the same period in 2016. The rest were orders to leave the United States voluntarily, a process by which immigrants generally face fewer barriers if they wish to apply to return to the United States in the future.

Federal officials attributed the increase in case completions to Trump’s Jan. 25 executive order dispatching more than 100 immigration judges to immigration jails across the country. More than 90 percent of cases heard in jails have led to orders to leave the United States. The department has also hired 54 new judges to work in immigration courts since Trump took office. More are being hired every month.

Dana Leigh Marks, an immigration judge based in San Francisco who heads the national association, wrote in Newsday last month that immigration courts should be separated from the Justice Department to ensure “judicial independence and protection from political influences.”

“More skilled court management, provided by experienced court administrators, rather than a law enforcement agency with priorities other than fairness and efficiency, would greatly enhance our ability to complete the tasks,” she wrote. “For example, cases would not be docketed to make political statements or serve as a show of force by the U.S. government.”

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

Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention? 

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Meanwhile, according to CQ Roll Call, arrests of undocumented individuals at the Southern Border rose 13.1% in July, the second consecutive monthly increase. Overall, DHS’s CBP reports arresting more family units and fewer unaccompanied children during the first 10 months of FY 2017.

While CBP “fobs off” the increases as “seasonal,” they do cast some doubt on whether the Trump Administration’s “send ’em all back asap” enforcement approach is really going to decrease undocumented migration in the long run. It might simply be a case of professional human smuggling operations revising their methods and raising their prices to adjust to higher risk factors and the “market” taking time to adjust to the changing practices and price increases. Moreover, to date, neither increases in removal orders, some as noted by Horwitz undoubtedly “in absentia orders” issued without full due process protections, nor increases in the number of U.S. Immigration Judges has stopped the growth of the backlog of cases before the U.S. Immigration Courts, currently estimated at more than 610,000 pending cases!

Apparently, under the Trump/Sessions regime success in the U.S. Immigration Court System is no longer measured by improvements in due process and fairness or by insuring that the individuals coming before the court get the protections and relief to which they are entitled under the law. Nope! The “rule of law” in Immigration Court now appears synonymous with turning that Court System into a “deportation mill” — just another whistle stop on the “deportation express.”

In other words, we’ve now come “full circle” since 1983. Then, EOIR was created to get the Immigration Courts out of INS to enhance due process and overcome a public perception that the courts were merely functioning as adjuncts of INS enforcement. The U.S. Immigration Courts and EOIR essentially have been “recaptured” by DHS  enforcement.

EOIR has once again become an insulated “inbred” agency. Judicial appointments are made by DOJ politicos almost exclusively from the ranks of government attorneys, primarily DHS and DOJ prosecutors, just like when the “Legacy INS” ran the courts. Dockets are out of control, management is haphazard, technology is outdated and inadequate, and clerical staffing shortages are chronic. Staffing and docketing priorities are designed to accommodate enforcement priorities and to maximize removals, rather than to promote due process and fairness. Training and attention to the real “rule of law” are afterthoughts. Public service is a dirty word.

Morale among those at EOIR who care about the due process judicial mission has been steadily declining even as already sky-high stress levels continue to ratchet up. Numbers and removals have replaced fairness, professionalism, and unbiased decision making as objectives.

There are rumors that the Immigration Courts are going to be taken out of the DOJ and “reintegrated” into DHS to reflect their “true function” as part of the deportation mechanism. I think it’s unlikely unless Sessions becomes the new Secretary of DHS. But, really, what difference would it make? Sessions basically “reassumed” the immigration enforcement functions that once were in the Attorney General’s portfolio but were sent over to DHS when it was created after 9-11. Kelly merely signed off and nodded agreement to what Sessions told him to do.

A move by the DOJ apparently is afoot to revamp the judicial “evaluation system” to rate Immigration Judges more like “lower level DOJ attorneys” rather than judicial officials exercising independent judgment. Such bureaucratic ratings systems often elevate “productivity” above quality, value “following agency priorities” over exercising independent judgment, and serve to give the politicos at the DOJ more control and leverage over the day to day functioning of what is supposed to be a judiciary free from political influence or intimidation. Moreover, such ratings are often prepared by “supervisory judges” many of whom hear no cases and most of whom have little daily contact with the Immigration  Judges they nominally “supervise.” In a well-functioning judicial system, the local “Chief Judge” is a leader and problem solver, not a “supervisor” of her or his peers.

At this point, the Trump Administration clearly has no interest in fixing the festering problems in the U.S. Immigration Courts; they are determined to make things worse. While there is some bipartisan support in Congress for an independent Article I U.S. Immigration Court, to date it hasn’t coalesced into any specific, politically viable legislation.

That basically leaves it to the Article III Federal Courts to decide whether or not to fix the Immigration Courts. One possibility is that they will decide that it is too much: just forget due process for foreign nationals, rubber stamp the removal orders, stay above the fray, and become another “whistle stop on the deportation express.”

A more optimistic possibility is that they will draw the line on the due process nightmare in the U.S. Immigration Courts being promoted by the Administration. But, that will make the Article III Courts a major “track block” on the deportation express. The trains will derail and pile up on the doorstep, and the Article III Courts can count on little if any help or resources from Congress in untangling the mess and getting things back on track. Understandably, from a practical if not a legal point of view, some Article III Judges aren’t going to want to go there.

One thing is certain — things can’t continue they way they are going now. Something has got to give! And, when it does, the Article III Courts will be forced to do some self-examination and decide whether they are going to be part of the problem, or part of the solution. Are life-tenured Article III judgeships in essence about securing life sinecures, or about taking a perhaps unpopular and labor intensive stand for Constitutional Due Process for all, even the weakest and most vulnerable among us? We’ll soon find out!

PWS

08-09-17

Related posts:

  1. TRUMP’S “GONZO” ENFORCEMENT POLICIES PRODUCE MORE REMOVAL ORDERS BUT FEWER ACTUAL DEPORTATIONS! — CRIMINAL DEPORTATIONS FALL AS DHS PICKS ON NON-CRIMINALS! — MINDLESS ABUSE OF ALREADY OVERWHELMED IMMIGRATION COURT DOCKETS ACTUALLY INHIBITS ABILITY TO CONCENTRATE ON CRIMINALS!
  2. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  3. MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!
  4. MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!