"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
The head of the Federal Judges Association is taking the extraordinary step of calling an emergency meeting to address the intervention in politically sensitive cases by President Trump and Attorney General William P. Barr.
U.S. District Judge Cynthia M. Rufe, the Philadelphia-based judge who heads the voluntary association of around 1,100 life-term federal judges, told USA Today that the issue “could not wait.” The association, founded in 1982, ordinarily concerns itself with matters of judicial compensation and legislation affecting the federal judiciary.
Republicans defend Barr as Klobuchar looks forward to testimony
Lawmakers and White House counselor Kellyanne Conway commented Feb. 16 on President Trump’s tweets and the conduct of Attorney General William P. Barr. (The Washington Post)
On Sunday, more than 1,100 former Justice Department employees released a public letter calling on Barr to resign over the Stone case.
A search of news articles since the group’s creation revealed nothing like a meeting to deal with the conduct of a president or attorney general.
Rufe, appointed to the bench by President George W. Bush, could not be reached for comment late Monday.
The action follows a week of turmoil that included the president tweeting his outrage over the length of sentence recommended by career federal prosecutors for his friend Roger Stone and the decision by Barr to withdraw that recommendation.
In between, Trump singled out the judge in the Stone case, Amy Berman Jackson of the U.S. District Court in Washington, for personal attacks, accusing her of bias and spreading a falsehood about her record.
“There are plenty of issues that we are concerned about,” Rufe said to USA Today. “We’ll talk all this through.”
Trump began disparaging federal judges who have ruled against his interests before he took office, starting with U.S. District Judge Gonzalo P. Curiel. After Curiel ruled against Trump in 2016 in a pair of lawsuits detailing predatory marketing practices at Trump University in San Diego, Trump described him as “a hater of Donald Trump,” adding that he believed the Indiana-born judge was “Mexican.”
Trump keeps lashing out at judges
President Trump has a history of denouncing judges over rulings that have negatively affected him personally as well as his administration’s policies. (Drea Cornejo/The Washington Post)
Faced with more than 100 adverse rulings in the federal courts, Trump has continued verbal attacks on judges.
Rufe’s comments gave no hint of what the association could or would do in response.
Some individual judges have already spoken out critically about Trump’s attacks generally, among them U.S. District Judge Paul L. Friedman, a colleague of Jackson’s in Washington, and most recently, the chief judge of the court in Washington, Beryl A. Howell.
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In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
Will Trump & Barr eventually separate Article III Judges’ families or send them to danger zones in Mexico or the Northern Triangle to “deter” rulings against the regime? Will Mark Morgan and Chad Wolf then declare “victory?” Will their families be scattered to various parts of the “New American Gulag” with no plans to reunite them? Will they be put on trial for their lives without access to lawyers? Are there costs for failing to take a “united stand” for the rule of law, Constitutional Due Process, human rights, and the human dignity of the most vulnerable among us?
Why does it take the case of a lifetime sleaze-ball like Roger Stone to get the “life-tenured ones” to “wake up” to the attacks on humanity and the rule of law going on under noses for the past three years?
Sen. Dick Durbin, D-Ill.(left), and Sen. Sheldon Whitehouse, D-R.I., Democratic members of the Senate Judiciary Committee, wrote a letter accusing the Trump administration of politicizing the immigration courts.
CREDIT J. SCOTT APPLEWHITE / AP
Top Senate Democrats warn that the Trump administration is deliberately undermining the independence of immigration courts.
In a bluntly-worded letter to the Justice Department, which oversees the immigration courts, the senators accuse the administration of waging an “ongoing campaign to erode the independence of immigration courts,” including changing court rules to allow more political influence over decisions, and promoting partisan judges to the Board of Immigration Appeals.
“The administration’s gross mismanagement of these courts,” they write, threatens to do “lasting damage to public confidence in the immigration court system.”
The letter was sent Thursday to Attorney General William Barr. It was signed by nine Democratic members of the Senate Judiciary Committee, including Sheldon Whitehouse of Rhode Island, Richard Durbin of Illinois, Mazie Hirono of Hawaii and Amy Klobuchar of Minnesota. They are requesting extensive information about the department’s hiring practices for trial-level and appellate judges, among other documents.
The Justice Department did not immediately respond to a request for comment on the letter.
The senators’ concerns echo those voiced by former and current immigration judges, including the head of the union representing those judges. Ashley Tabaddor, the president of the National Association of Immigration Judges, testified at a House Judiciary Committee hearing last month that immigration courts should no longer be overseen by the Justice Department.
“The only real and lasting solution is the establishment of an independent Immigration Court,” Tabaddor wrote in her testimony. “It must be free from the constantly changing (often diametrically opposed) politicized policy directives of the Department of Justice.”
Immigration courts face a massive backlog of more than a million cases. And there’s wide agreement that the court system needs reform. But not everyone believes that removing immigration courts from the Justice Department is the right approach.
“The attorney general and his subordinates are actively working to remedy this problem, by providing the needed resources to the immigration courts,” wrote Andrew Arthur, a former immigration judge who is now a fellow at the Center for Immigration Studies, in his testimony before the House Judiciary Committee last month. “Restructuring the immigration courts … will almost certainly not address the core problems that are facing those courts,” Arthur added.
At a time when caseloads are surging, some immigration judges are quitting, citing frustration and exhaustion. Judge Charles Honeyman retired from the Philadelphia Immigration Court in January after 24 years on the job.
“I would want future administrations and the Congress to think of immigration judges as judges, literally, and give them the autonomy and the independence and the confidence to make decisions without political interference or overreach,” he said in an interview with NPR’s Noel King.
“The only way to do that is to create an independent court where the judge makes a decision and the judge isn’t afraid of how many cases he has to complete for the year or whether some political actor is going to be looking over his shoulder and say, I don’t agree with that decision; we’re going to find a way to put pressure on you,” Honeyman said.
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Thanks, Charlie, my friend, for speaking out so forcefully for Due Process and justice in our Immigration Courts!
After seeing how Trump attacked an Article III life-tenured U.S. District Judge this week, does anyone seriously think that an Immigration Judge, a mere civil servant, who ruled against the Trump/Miller White Nationalist agenda in a case that came to Trump’s attention would retain their job under Billy Barr? After seeing how Trump treated some career civil servants and military officers after they “spoke truth to power” does anyone seriously think that Billy Barr of any other regime sycophant would defend fair and impartial decision making that Trump didn’t like?
No way! So how can ANY foreign national get a fair hearing before a “fake court system” where the prosecution authorities retain the right to change any result that goes against them and to remove subordinates who are supposed to be exercising independent judgement from their jobs if they don’t like the result.
The entire Immigraton Court system is and has been for some time now a cruel, unconstitutional hoax. Why haven’t the Article III Courts, whose judges are protected by life tenure, done their duty by stepping in and putting an end to this unconstitutional dysfunctional mess that is destroying innocent lives and ruining futures?
(CNN)The Trump administration is reinforcing a tight deadline for immigration cases of unaccompanied migrant children in government custody in an effort to make quicker decisions about deportation, according to an email obtained by CNN.
The message seems designed to apply pressure on immigration judges to wrap up such cases within a 60-day window that’s rarely met and falls in line with a broader effort by the administration to complete immigration cases at a faster speed.
Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said deadlines are “putting the judge between a rock and a hard place.”
“The only thing that can get done within 60 days is if someone wants to give up their case or go home or be deported,” Tabaddor told CNN.
The Executive Office for Immigration Review, which oversees the nation’s immigration court system, sent the email last month to assistant chief immigration judges, reminding them that unaccompanied children in government custody are to be considered the same as detained adults for purposes of scheduling cases.
While the 60-day deadline cited in the email is not new, it’s difficult to meet for cases of unaccompanied kids, in part, because of the time it takes to collect the relevant information for a child who comes to the United States alone. As a result, cases can often take months, if not years, to resolve.
Last year, an uptick in unaccompanied children at the US-Mexico border strained the administration’s resources. Over the course of the 2019 fiscal year, Border Patrol arrested around 76,000 unaccompanied children on the southern border, compared to 50,000 the previous fiscal year.
Unaccompanied children apprehended at the southern border are taken into custody by the Department of Homeland Security and referred to Health and Human Services. While in care at shelters across the country, case managers work to place a child with a sponsor in the United States, like a parent or relative.
Like adults and families who cross the US-Mexico border, unaccompanied children are put into immigration proceedings to determine whether they can stay in the United States.
The email from EOIR, dated January 30, says unaccompanied migrant children who are in the care of the government should be on a “60-day completion goal,” meaning their case is expected to be resolved within 60 days. It goes on to reference complaints received by the office of the director, but doesn’t say who issued the complaints or include a punishment for not meeting the completion goal.
EOIR spokeswoman Kathryn Mattingly told CNN that she could not comment on internal communications.
Golden McCarthy, deputy director at the Florence Immigrant and Refugee Rights Project, which works with unaccompanied migrant children, said “it does take time to reach out to” a child’s caretaker or adults in the child’s life.
“We all know that many times the child doesn’t necessarily have the full picture of what happened; it does take time to reach out to caretakers and adults in their lives to understand,” McCarthy said.
Initiatives designed to quickly process cases have cropped up before.
The Obama administration tried to get cases scheduled more expeditiously but deferred to the judges on the timeline thereafter, whereas the Trump administration’s move seems to be an intent to complete cases within a certain timeframe, according to Rená Cutlip-Mason, chief of Programs at the Tahirih Justice Center and a former EOIR official.
The Trump administration also appears to be getting cases scheduled faster. In Arizona, for example, the Florence Immigrant and Refugee Project has begun seeing kids called into immigration court earlier than they had been before.
In a statement submitted to the House Judiciary Committee in January, the group detailed the cases of children, one as young as 10 years old, who appeared before an immigration judge within days of arriving to the US.
“I think our clients and the kids we would work with are resilient,” McCarthy, the deputy director at the project, said. “But to navigate the complex immigration system is difficult for adults to do, and so to explain to a kid that they will be going to court and a judge will be asking them questions, the kids don’t typically always understand what that means.”
It can also complicate a child’s case since he or she may eventually move to another state to reunify with a parent or guardian, requiring the child’s case to move to an immigration court in that state.
Under the Trump administration, the Justice Department has rolled out a slew of other policies — such as imposing case quotas — to chip away at the nearly one million pending cases facing the immigration court system. Some of those controversial policies have resulted in immigration judges leaving the department.
In its latest budget request to Congress, the White House called for $883 million to “support 100 immigration judge teams” to ease the backlog.
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How to build a 1.3 million case backlog with no end in sight: Anatomy of “Aimless Docket Reshuffling:”
2017: Trump Administration “deprioritizes” unaccompanied minors, creating more docket chaos;
2020: Trump Administration “reprioritizes” unaccompanied minors, creating more docket chaos;
Result:
Unfairness to unaccompanied minors rushed through the system without due process;
Unfairness to long-pending cases continuously “shuffled off to Buffalo:”
Gross inconvenience to the public;
Demoralized judges whose dockets are being manipulated by unqualified bureaucrats for political reasons;
Growing backlogs with no rational plan for resolving them in the foreseeable future.
This reminds me of my very first posting on immigratoncourtside.com – from Dec. 27, 2016 —
SAVING CHILD MIGRANTS WHILE SAVING OURSELVES
By Paul Wickham Schmidt
They cross deserts, rivers, and territories controlled by corrupt governments, violent gangs, and drug cartels. They pass through borders, foreign countries, different languages and dialects, and changing cultures.
I meet them on the final leg of their trip where we ride the elevator together. Wide-eyed toddlers in their best clothes, elementary school students with backpacks and shy smiles, worried parents or sponsors trying to look brave and confident. Sometimes I find them wandering the parking garage or looking confused in the sterile concourse. I tell them to follow me to the second floor, the home of the United States Immigration Court at Arlington, Virginia. “Don’t worry,” I say, “our court clerks and judges love children.”
Many will find justice in Arlington, particularly if they have a lawyer. Notwithstanding the expedited scheduling ordered by the Department of Justice, which controls the Immigration Courts, in Arlington the judges and staff reset cases as many times as necessary until lawyers are obtained. In my experience, retaining a pro bono lawyer in Immigration Court can be a lengthy process, taking at least six months under the best of circumstances. With legal aid organizations now overwhelmed, merely setting up intake screening interviews with needy individuals can take many months. Under such conditions, forcing already overworked court staff to drop everything to schedule initial court hearings for women and children within 90 days from the receipt of charging papers makes little, if any, sense.
Instead of scheduling the cases at a realistic rate that would promote representation at the initial hearing, the expedited scheduling forces otherwise avoidable resetting of cases until lawyers can be located, meet with their clients (often having to work through language and cultural barriers), and prepare their cases. While the judges in Arlington value representation over “haste makes waste” attempts to force unrepresented individuals through the system, not all Immigration Courts are like Arlington.
For example, according to the Transactional Records Clearinghouse at Syracuse University (“TRAC”), only 1% of represented juveniles and 11% of all juveniles in Arlington whose cases began in 2014, the height of the so-called “Southern Border Surge,” have received final orders of removal. By contrast, for the same group of juveniles in the Georgia Immigration Courts, 43% were ordered removed, and 52% of those were unrepresented.
Having a lawyer isn’t just important – it’s everything in Immigration Court. Generally, individuals who are represented by lawyers in their asylum cases succeed in remaining in the United States at an astounding rate of five times more than those who are unrepresented. For recently arrived women with children, the representation differential is simply off the charts: at least fourteen times higher for those who are represented, according to TRAC. Contrary to the well-publicized recent opinion of a supervisory Immigration Judge who does not preside over an active docket, most Immigration Judges who deal face-to-face with minor children agree that such children categorically are incompetent to represent themselves. Yet, indigent individuals, even children of tender years, have no right to an appointed lawyer in Immigration Court.
To date, most removal orders on the expedited docket are “in absentia,” meaning that the women and children were not actually present in court. In Immigration Court, hearing notices usually are served by regular U.S. Mail, rather than by certified mail or personal delivery. Given heavily overcrowded dockets and chronic understaffing, errors by the Department of Homeland Security (“DHS”) in providing addresses and mistakes by the Immigration Court in mailing these notices are common.
Consequently, claims by the Department of Justice and the DHS that women and children with removal orders being rounded up for deportation have received full due process ring hollow. Indeed a recent analysis by the American Immigration Council using the Immigration Court’s own data shows that children who are represented appear in court more than 95% of the time while those who are not represented appear approximately 33% of the time. Thus, concentrating on insuring representation for vulnerable individuals, instead of expediting their cases, would largely eliminate in absentia orders while promoting real, as opposed to cosmetic, due process. Moreover, as recently pointed out by an article in the New York Times, neither the DHS nor the Department of Justice can provide a rational explanation of why otherwise identically situated individuals have their cases “prioritized” or “deprioritized.”
Rather than working with overloaded charitable organizations and exhausted pro bono attorneys to schedule initial hearings at a reasonable pace, the Department of Justice orders that initial hearings in these cases be expedited. Then it spends countless hours and squanders taxpayer dollars in Federal Court defending its “right” to aggressively pursue removal of vulnerable unrepresented children to perhaps the most dangerous, corrupt, and lawless countries outside the Middle East: El Salvador, Guatemala, and Honduras. The Board of Immigration Appeals (“BIA”), the institution responsible for enforcing fairness and due process for all who come before our Immigration Courts, could issue precedent decisions to stop this legal travesty of accelerated priority scheduling for unrepresented children who need pro bono lawyers to proceed and succeed. But, it has failed to act.
The misguided prioritization of cases of recently arrived women, children, and families further compromises due process for others seeking justice in our Immigration Courts. Cases that have been awaiting final hearings for years are “orbited” to slots in the next decade. Families often are spread over several dockets, causing confusion and generating unnecessary paperwork. Unaccompanied
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children whose cases should initially be processed in a non-adversarial system are instead immediately thrust into court.
Euphemistically named “residential centers” — actually jails — wear down and discourage those, particularly women and children, seeking to exercise their rights under U.S. and international law to seek refuge from death and torture. Regardless of the arcane nuances of our asylum laws, most of the recent arrivals need and deserve protection from potential death, torture, rape, or other abuse at the hands of gangs, drug cartels, and corrupt government officials resulting from the breakdown of civil society in their home countries.
Not surprisingly, these “deterrent policies” have failed. Individuals fleeing so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras have continued to arrive at a steady pace, while dockets in Immigration Court, including “priority cases,” have mushroomed, reaching an astonishing 500,000 plus according to recent TRAC reports (notwithstanding efforts to hire additional Immigration Judges). As reported recently by the Washington Post, private detention companies, operating under highly questionable government contracts, appear to be the only real beneficiaries of the current policies.
It doesn’t have to be this way. We could save lives and short-circuit both the inconsistencies and expenses of the current case-by-case protection system, while allowing a “return to normalcy” for most already overcrowded Immigration Court dockets by using statutory Temporary Protected Status (known as “TPS”) for natives of the Northern Triangle countries. Indeed, more than 270 organizations with broad based expertise in immigration matters, as well as many members of Congress, have requested that the Administration institute such a program.
The casualty toll from the uncontrolled armed violence plaguing the Northern Triangle trails only those from Syria, Afghanistan, and Iraq. TPS is a well- established humanitarian response to a country in crisis. Its recipients, after registration, are permitted to live and work here, but without any specific avenue for obtaining permanent residency or achieving citizenship. TPS has been extended among others to citizens of Syria and remains in effect for citizens of both Honduras who needed refuge from Hurricane Mitch in 1998 and El Salvador who needed refuge following earthquakes in 2001. Certainly, the disruption caused by a hurricane and earthquakes more than a decade ago pales in comparison with the very real and gruesome reality of rampant violence today in the Northern Triangle.
Regardless, we desperately need due-process reforms to allow the Immigration Court system to operate more fairly, efficiently, and effectively. Here are a few suggestions: place control of dockets in the local Immigration Judges, rather than bureaucrats in Washington, as is the case with most other court systems; work cooperatively with the private sector and the Government counsel to docket cases at a rate designed to maximize representation at the initial hearings; process unaccompanied children through the non-adversarial system before rather
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than after the institution of Immigration Court proceedings; end harmful and unnecessary detention of vulnerable families; settle ongoing litigation and redirect the talent and resources to developing an effective representation program for all vulnerable individuals; and make the BIA an effective appellate court that insures due process, fairness, uniformity and protection for all who come before our Immigration Courts.
Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to “stem the tide.” It is time to demand an immigrant justice system that lives up to its vision of “guaranteeing due process and fairness for all.” Anything less is a continuing disgrace that will haunt us forever.
The children and families riding the elevator with me are willing to put their hopes and trust in the belief that they will be treated with justice, fairness, and decency by our country. The sole mission and promise of our Immigration Courts is due process for these vulnerable individuals. We are not delivering on that promise.
The author is a recently retired U.S. Immigration Judge who served at the U.S. Immigration Court in Arlington Virginia, and previously was Chairman and Member of the Board of Immigration Appeals. He also has served as Deputy General Counsel and Acting General Counsel of the former Immigration and Naturalization Service, a partner at two major law firms, and an adjunct professor at two law schools. His career in the field of immigration and refugee law spans 43 years. He has been a member of the Senior Executive Service in Administrations of both parties.
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Tragically, as a nation, we have learned nothing over the past more than three years. Things have actually gotten much, much worse as we have unwisely and unconscionably entrusted the administration of our laws to a cruel, corrupt, scofflaw regime that sees inflicting pain, suffering, and even death on children and other vulnerable seekers of justice as an “end in an of itself.” They actually brag about their dishonesty, racism, selfishness, contempt for human decency, and “crimes against humanity.”
So far, they have gotten away nearly “Scot-free” with not only bullying and picking on vulnerable children and refugee families but with diminishing the humanity of each of us who put up with the horrors of an authoritarian neo-fascist state.
History will, however, remember who stood up for humanity in this dark hour and who instead sided with and enabled the forces of evil, willful ignorance, and darkness overtaking our wounded democracy.
Due Process Forever; Child Abuse & Gratuitous Cruelty, Never.
This brief presents the view of former IJs and BIA members on an issue of vital importance to the functioning of our immigration system: how requiring IJs to assess inconclusive conviction records to determine whether a prior criminal conviction disqualifies a noncitizen from applying for relief from removal is contrary to longstanding application of the categorical approach, will create further delays in an already overburdened immigration system, and will deprive IJs of their discretionary power.
Mr. Pereida is correct that inconclusive state conviction records cannot satisfy the categorical approach’s requirement that the state conviction necessarily establishes federal predicate offenses. Affirming this interpretation of the categorical approach will promote the expeditious and fair adjudication of the hundreds of thousands of cases pending in immigration courts.
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The Government incorrectly asserts that when the conviction record is inconclusive as to whether a conviction was for a disqualifying offense, a noncitizen does not carry his or her burden of proof to show statutory eligibility for relief. That argument is faulty because it would require IJs to conduct an inquiry, which the Government wrongly argues is governed by the Immigration and Nationality Act’s (“INA”) burden of proof allocation, focusing on the facts underlying the conviction. Moreover, rather than aid IJs in resolving cases, the Government’s position would impede the application of the modified categorical approach by forcing IJs to delay the proceedings. IJs will be forced to wait for the noncitizen to obtain and present criminal records that may not even exist or be obtainable and then examine those criminal records to make factual determinations the categorical approach is meant to avoid. The Government’s novel gloss on the modified categorical approach is antithetical to the analysis IJs have employed for decades and would preclude the exercise of discretion essential to the functioning of immigration courts.
Contrary to the Government’s contention, the modified categorical approach does not involve a separate factual inquiry. The requisite analysis is a legal one: whether the conviction rests upon nothing more than the minimum conduct necessary for a conviction. Deviating from the categorical approach’s sole focus on a direct and uncomplicated comparison between state and federal offenses, as the Government would require, threatens to disturb the uniformity of outcomes in similar circumstances that the categorical approach safeguards. Mr. Pereida’s interpretation of
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the categorical approach would avoid this undesirable outcome.
For the reasons explained in the balance of this brief, Mr. Pereida’s solution is the correct one. Section I provides a real-world overview of how removal proceedings operate, focusing on the typical sequence of immigration court proceedings, how criminal records are introduced and considered, and the limited ability of noncitizens (many of whom are detained during such proceedings) to procure relevant records. Section II discusses the administrability of the categorical approach and its modified variant, highlighting the benefits of the approach, how Mr. Pereida’s position is in harmony with the way in which IJs apply the approach to reach just results, and how the Government’s interpretation would impede the workings of immigration courts. Finally, Section III explains how the Government’s position would curtail IJs’ discretionary power to analyze the facts of each case to reach a just result.
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Many, many, many thanks to David G. Keyko, Counsel of Record, Robert L. Sills, Matthew F. Putorti, Stephanie S. Gomez, Jihyun Park and the rest of the amazing pro bono team over at Pillsbury for their outstanding and timely research and writing.
And, as always, it’s a privilege and an honor to be listed with the rest of my friends and colleagues on our Round Table of Former Immigration Judges!
In fact, the experience requirement in immigration judge vacancy announcements doesn’t even mention immigration law experience:
“Experience: Applicants must have a full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials … Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document … was issued by a court, a grand jury, or appropriate military authority…”
Due process isn’t possible when judges do not fully understand the law — and it takes a long time to learn immigration law. According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” Rutgers University law professor Elizabeth Hull says that our immigration laws are “second only to the Internal Revenue Code in complexity.”
The concern over judges with no immigration law experience is more than just idealism or theory — the inexperience can impact people’s lives in major ways.
For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough. 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.
How many inexperienced immigration judges would know that?
This influx of inexperience may explain why asylum decisions vary so widely from judge-to-judge.
What’s more, these judges might not be able to meet the eligibility standards for an Article 1 court if subject matter expertise is required.
. . . .
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You can read Nolan’s full article, from which this is excerpted, at the above link. I agree wholeheartedly with this part of Nolan’s conclusion: “EOIR should not be trying to deal with this backlog by hiring more judges if it can’t find judges with adequate immigration law experience.”
Here’s an actual anecdote that I received recently from a Courtside reader:
I had a merits hearing . . . with a new IJ with no immigration background at all. It happened to be an old adjustment which the ICE trial attorney had reviewed and agreed in advance to a grant, pending a few questions. So the ICE TA explained this to the IJ, and I asked the IJ if [he/she] understood the terms involved. And it turned out that the IJ didn’t know what an I-140 is and didn’t know what 245(i) is. [He/She] didn’t say a word; we ran the hearing. The ICE attorney actually had to fill out the IJ’s order for [him/her] to sign; [he/she] had no idea what to write or what boxes to check.
What if it had been a contested hearing?
Yes, indeed, “what if this had been a contested hearing?” I assume that what passes for EOIR/DOJ “new judge training” these days just tells new judges that “when in doubt, kick ‘em out.” Just check the “denied” and “ordered removed” boxes on the form orders. At least this one had a “happy ending.” Many do not!
I’ve heard other anecdotes about newer Immigration Judges totally ignorant about asylum law and afraid to admit it who cited Matter of A-B- as basis for “blanket summary denial” of all gender-based asylum claims from Central America. Other newer judges reportedly are largely unaware of the burden-shifting “regulatory presumption of future persecution” arising out of past persecution.
Others apparently don’t understand the interplay and differing requirements and consequences among asylum, withholding of removal under the Act, CAT withholding, and CAT deferral. “Mixed motive,” a key life or death concept in asylum cases — you’d be lucky to find a handful of Immigration Judges these days who truly understand how it applies. That’s particularly true because the BIA and the Attorney General have recently bent the concept and many of the Circuit precedents interpreting it intentionally out of shape to favor DHS enforcement and discriminate against bona fide asylum applicants.
The generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza-Fonseca and embodied in the BIA’s Matter of Mogharrabi is widely ignored, even mocked in some of today’s enforcement driven, overtly anti-asylum Immigration Courts.
To be fair, I’ve also heard praise from advocates for some of the newer Immigration Judges who seemed eager and willing to be “educated” by both counsel, weren’t afraid to admit their gaps in knowledge and request amplification, and seemed willing carefully to weigh and deliberate all the facts and law to reach a just and well-explained decision; this contrasts with “summary preconceived denial” which is a common complaint among advocates that also includes some judges who have been on the bench for years.
The larger problem here is that too many of the Circuits Courts of Appeals seem to have gone “belly up” on their duty to carefully review what is happening in the Immigration Courts and to insist on the basics of fundamental fairness, due process, and fair and impartial decision-making.
It’s pretty simple: At neither the trial nor appellate levels do today’s Immigration Courts operating under EOIR and DOJ control qualify as “expert tribunals.” It is legally erroneous for Article III Courts to continue to “defer” to decision makers who lack fairness, impartiality, and subject matter expertise.
With human lives, the rule of law, and America’s future at stake here, it’s past time for the Article III’s to stop pretending that is “business as usual” in the warped and distorted “world of immigration under the Trump regime.”
Would any Article III Judge subject his or her life to the circus now ongoing at EOIR. Of course not! Then it’s both legally wrong and morally corrupt for Article IIIs to continue to subject vulnerable migrants to this type of charade and perversion of justice!
4th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”
Atemnkeng v. Barr, 4th Cir. Jan. 24, 2020, published
PANEL: GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
OPINION BY: Chief Judge Gregory
KEY QUOTE:
Ngawung Atemnkeng, a citizen of Cameroon, fled her country after participating in
anti-government meetings and protests, getting arrested and was detained without trial several times, being tortured and beaten by government officers, and receiving numerous death threats. An immigration judge (“IJ”) initially noted some inconsistencies in Atemnkeng’s application, but nevertheless found her credible and her explanations plausible, and granted her asylum application. On appeal, the Board of Immigration Appeals (“BIA”) reversed the IJ’s determination and instructed the IJ, in reviewing the asylum application a second time, to afford Atemnkeng an opportunity to explain any inconsistencies.
On remand, Atemnkeng has now relocated to Baltimore and the new IJ (“Baltimore IJ”) permitted her to submit additional documents in support of her asylum application and scheduled a master calendar hearing. Approximately one month prior to the hearing, however, the Baltimore IJ issued a written ruling denying Atemnkeng’s applications for asylum and other reliefs. The Baltimore IJ concluded, without Atemnkeng’s new testimony, that she was not credible in light of inconsistencies in her story. On a second appeal to the BIA, the Baltimore IJ’s ruling was affirmed without an opinion. Atemnkeng now petitions for review of the BIA’s summary affirmance of the Baltimore IJ’s rulings.
In her petition for review, she raises several claims, most notably, that her due process rights were violated when the Baltimore IJ deprived her of an opportunity to testify on remand. Concluding that Atemnkeng’s claim related to her ability to testify is
meritorious, we grant the petition for review, vacate the BIA’s affirmance, and remand for 2
further proceedings. In light of our conclusion that the Baltimore IJ failed to give Atemnkeng an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record, we decline to address whether the adverse credibility determination and denials of Atemnkeng’s applications for withholding of removal and relief under the Convention Against Torture (“CAT”) were erroneous.
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When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”
By Paul Wickham Schmidt
“Courtside” Exclusive
Jan. 1, 2020
Giving someone a chance to testify in person and explain apparent discrepancies, particularly when the case was for remanded for just that reason, seems like “Law 101.” It’s so elementary, I wouldn’t even include it on a final exam!
After all, simple logic, unclouded by a philosophy of treating migrants as a subclass whose legal rights judges often parrot but seldom enforce, would say that “Due Process is at its zenith” when human lives are at stake, as was the case here. It’s also required not only by the Constitution, but by BIA precedents like Matter of A-S-. So, how does this “go south” at EOIR?
Following precedents where it might help a respondent, be it a BIA or a Circuit precedent, seems to have become largely “optional” in the Immigration Courts these days, as I have previously observed. Instead, with constant encouragement from a White Nationalist, xenophobic regime, and lots of complicit judges at all levels, Due Process has largely been wiped out in Immigration Court.
Thank goodness this respondent, represented by long-time practitioner Ronald Richey (an Arlington Immigration Court regular” during my tenure), had the wherewithal to get to the Fourth Circuit and to draw a panel of judges interested in setting things right.
Think about what might have happened if she had landed in a complicit, largely “Decency Free Zone” like the Fifth or Eleventh Circuits, known for “going along to get along” with almost any abuse of migrants’ rights by the Government.
When are all Article III Judges going to start “connecting the dots” and asking why a supposedly “expert tribunal” whose one and only job should be to painstakingly insure that nobody is denied relief and removed from the United States, particularly to potential torture or death, without full Due Process and fundamental fairness is making fundamental mistakes in churning out removal orders.
Once upon a time, EOIR, the “home” of the Immigration Courts set out to use “teamwork and innovation to become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”Not only has that “noble vision” been totally trashed, but the exact opposite has become institutionalized at EOIR: “Worst practices,” badly skewed pro-prosecutor hiring, inadequate professional training, lack of expertise, speed and expediency elevated over quality and care, intentional institutionalization of anti-immigrant, anti-asylum, pro-DHS bias, demeaning treatment of respondents and their lawyers, and the extermination of judicial independence and public accountability.
Today’s EOIR is truly a grim place, particularly for those whose lives are being destroyed by its substandard performance and also for the attorneys trying desperately to save them. Obviously, most Article IIIs have insulated themselves from the practical humanitarian disasters unfolding in Immigration Courts every day under their auspices.
What do they think happens to folks who can’t afford to be represented by Ronald Richey or one of his colleagues and whose access to pro bono counsel is intentionally hampered or impeded by EOIR? Think they have any chance whatsoever of a “fundamentally fair hearing” that complies with Due Process? Hearings for unrepresented individuals in detention are so grotesquely ridiculous that EOIR and DHS have gone to extreme lengths to impede public access so their abuses will take place in secret. Just ask my friendLaura Lynch over at AILA or my colleague Judge Ilyce Shugall of our Round Table what it’s like simply trying to get EOIR and DHS to comply with their own rules.
Listen folks, I helped formulate and implement the Refugee Act of 1980 as a Senior Executive in the “Legacy INS” during the Carter and Reagan Administrations. I even represented a few asylum applicants in private practice, something most Article III Judges and even many Immigraton Judges have never done. In 21 years on the “Immigration Bench” at both the trial and appellate levels, I personally listened to, read, or reviewed on appeal more asylum cases than any sitting Article III Judge of whom I’m aware.
The various parodies and travesties of justice in today’s Immigration Courts are eerily similar to, or in some cases the same, as I used to hear and read about in some of the third-world dictatorships, banana republics, and authoritarian tyrannies I dealt with on a regular basis. It’s simply infuriating, and beyond my understanding, that privileged, life-tenured, Article III Judges in our country, sworn to uphold our laws and Constitution, can continue to permit and so “glibly gloss over” these violations of law and gross perversions of human decency.
And, that goes right up to the Supremes’ intentional, disingenuous “tone deaf” approach to ignoring the real unconstitutional, invidious motives and fabrications behind the Administration’s original “Travel Ban.” All of the fatal legal defects were carefully documented and explained by various lower court judges trying conscientiously to uphold their oaths of office and “do the right thing.” Instead they were “dissed” by the Supremes and their hard work was ignored and denigrated. Fake, exaggerated, or “trumped up” “national security” pretexts for abusive treatment of “others” and political or religious opponents is a staple of persecuting regimes everywhere, as it now has become a judicially-enable staple of our current regime.
It’s long past time for the Article IIIs to wake up and put an end to the systemic nonsense that is literally killing people in our dysfunctional Immigration Court system. Is this the type of system to which you would entrust YOUR life, judges? If not, and I severely doubt that it is, why does it pass for “Due Process” for some of the most vulnerable among us? Think about it?
Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts
Witnesses
X The HonorableAndrew R.Arthur
Y Resident Fellow in Law and Policy, Center for Immigration Studies
X Mr.JeremyMcKinney
Y Second Vice President, American Immigration Lawyers Association
X Ms.JudyPerry Martinez
Y President, American Bar Association
X The HonorableA. AshleyTabbador
Y President, National Association of Immigration Judges
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You can watch live tomorrow by clicking the above link.
The Subcommittee should get an earful from the last three witnesses on the absolute national disgrace and mockery of Constitutional Due Process taking place daily in these weaponized and “captive” courts.
Molly Hennessy-Fiske Houston Bureau Chief LA TimesHonorable Charles Honeyman Retired U.S. Immigration Judge Member, Round Table of Former Immigration Judges
HOUSTON — Immigration Judge Charles Honeyman was nearing retirement, but he vowed not to leave while Donald Trump was president and risk being replaced by an ideologue with an anti-immigration agenda.
He pushed back against the administration the best he could. He continued to grant asylum to victims of domestic violence even after the Justice Department said that was not a valid reason to. And he tried to ignore demands to speed through cases without giving them the consideration he believed the law required.
But as the pressure from Washington increased, Honeyman started having stomach pains and thinking, “There are a lot of cases I’m going to have to deny that I’ll feel sick over.”
This month, after 24 years on the bench, the 70-year-old judge called it quits.
Dozens of other judges concerned about their independence have done the same, according to the union that represents them and interviews with several who left.
“We’ve seen stuff which is unprecedented — people leaving the bench soon after they were appointed,” said A. Ashley Tabaddor, an immigration judge in Los Angeles and president of the National Assn. of Immigration Judges union.
“Judges are going to other federal agencies and retiring as soon as possible. They just don’t want to deal with it. It’s become unbearable.”
Especially worrying to many is a quota system that the Trump administration imposed in 2018 requiring each judge to close at least 700 cases annually, monitoring their progress with a dashboard display installed on their computers.
Tabaddor called the system “a factory model” that puts “pressures on the judges to push the cases through.”
Jeffrey Chase, who served as an immigration judge in New York City until 2007, founded a group of former immigration judges in 2017 that has grown to 40 members.
“They say they would have gladly worked another five or 10 years, but they just reached a point under this administration where they can’t,” he said. “It used to be there were pressures, but you were an independent judge left to decide the cases.”
The precise number of judges who have quit under duress is unclear. Kathryn Mattingly, a spokeswoman for the courts, said a total of 45 left their positions in the fiscal year that ended last September, but she declined to provide a breakdown of how many of those were deaths, planned retirements or promotions to the immigration appeals board.
More information may become available Wednesday, when a House judiciary subcommittee is scheduled to hear testimony on the state of judicial independence and due process in the country’s 68 immigration courts.
The Trump administration has been adding new judges faster than old ones are leaving. Between 2016 and last year, the total number of judges climbed from 289 to 442.
That increase as well as the quota system and other measures are part of a broad effort by the Trump administration to reduce a massive backlog that tripled during the Obama presidency and then grew worse as large numbers of Central Americans arrived at the U.S. border.
Last year, the Department of Homeland Security filed 443,000 cases seeking deportations and immigrants made a record 200,000 asylum applications — both records. More than a million cases remain unresolved.
Still, James McHenry, director of the immigration courts, told the Senate Homeland Security committee in November that the new rules have started to turn around a court system that had been hobbled by neglect and inefficiency.
On average, immigration judges met the quota last year while the number of complaints against judges decreased for the second year in a row, he said.
“These results unequivocally prove that immigration judges have the integrity and competence required to resolve cases in the timely and impartial manner that is required by law,” McHenry testified.
But many judges came to see the new guidelines as a way for the Trump administration to carry out its agenda of increasing deportations and denying asylum claims, which the president has asserted are largely fraudulent.
Those judges say it is impossible to work under the new system and still guarantee migrants their due process rights.
“There are many of us who just feel we can’t be part of a system that’s just so fundamentally unfair,” said Ilyce Shugall, who quit her job as an immigration judge in San Francisco last March and now directs the Immigrant Legal Defense Program at the Justice & Diversity Center of the Bar Assn. of San Francisco. “I took an oath to uphold the Constitution.”
The Trump administration was “using the court as a weapon against immigrants,” she said.
Rebecca Jamil, who was also a judge in San Francisco before quitting in 2018, called it a “nearly impossible job.”
She said the judge appointed to replace her left after less than a year.
The judges union has taken up the cause, fighting to end the quota system and make immigration courts independent from the Justice Department.
In response, Justice officials petitioned the Federal Labor Relations Authority last August to decertify the union, arguing judges are managers and therefore not entitled to union protections. The board is expected to issue a decision later this year.
The conflict intensified after the union filed a formal complaint about a Justice Department newsletter that included a link to a white nationalist website that waged anti-Semitic attacks on judges.
Honeyman, who is Jewish, makes no secret of the empathy he felt for the asylum seekers who appeared in his courtroom in Philadelphia and during temporary assignments to courts in Louisiana, New Mexico and Texas.
His grandparents had come from Eastern Europe through New York’s Ellis Island. “I always thought, ‘But for some quirk of the immigration system, I would be on the other side’ ” of the bench, he said.
He granted asylum more often than many other judges. Between 2014 and 2019, immigration judges across the country denied about 60% of asylum claims, according to Syracuse University’s Transactional Records Access Clearinghouse. Honeyman denied 35% of claims in his courtroom.
Reflecting on his career in a speech at his retirement party this month, Honeyman said he had been inspired by the cases he heard, including that of a Central American girl who wrote to thank him for granting her asylum. She had graduated from college and was applying to law school “so that she could give back to the America that had saved her life.”
Honeyman said he decided to leave the bench because of “the escalating attack over the past few years on the very notion that we are a court in any meaningful sense.”
“All of these factors and forces I regret tipped the balance for me,” he said. “It was time for Courtroom 1 at the Philadelphia immigration court to go dark.”
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The idea that things are “turning around” in a positive way for the beleaguered and weaponized “courts” is, of course, pure regime propaganda. The system, is totally out of control.
The Administration eliminated sensible “prosecutorial discretion” guidelines for DHS that prioritized cases in the manner of all other law enforcement agencies in America. DOJ politicos also stripped Immigration Judges of their well-established authority to manage dockets thorough “administrative closure” and restricted their ability to grant reasonable continuances (likely unconstitutional).
At a time when the world is still producing record numbers of refugees, the regime has artificially suppressed the asylum grant rate by issuing unethical and legally wrong politically generated precedents, blocking access to counsel, using intentionally coercive detention, and pressuring judges to “produce or else” which roughly translates into “deny and deport.” “Aimless Docket Reshuffling” (“ADR”) is the order of the day. This toxic brand of ADR (not to be confused with “alternative disputes resolution”) is an insanely wasteful bureaucratic practice whereby “ready to try cases,” many pending for years, are shuffled off to the end of dockets that are many years out, often without advance notice to the parties, to accommodate Immigration Judge details, reassignments, and other “new priorities of the day.”
So totally out of control and mismanaged is today’s weaponized “court system” that the independent TRAC Immigration at Syracuse University recently estimated that it would take approximately another 400 Immigration Judges, in addition to the approximately 465 already on duty, just for the courts to “break even” on the unrestricted and irresponsible flow of incoming cases from DHS enforcement. https://trac.syr.edu/immigration/reports/591/
In other words, to stop creating more backlog. And that would be without further retirements or resignations – something that clearly is not going to happen. Even under those circumstances, the courts would merely be “breaking even.” Eliminating the “backlog” in a fair and legal manner would take additional judges and years, if not generations, if the courts continue to operate as a dysfunctional branch of DOJ dedicated to biased enforcement at the expense of due process, fundamental fairness, and responsible, professional management.
It’s likely that Wednesday‘s House hearings will further document the institutional unfairness and dysfunction of the current “courts” and the urgent, overwhelming need for an independent Article I Immigration court to be established by Congress. But, that reform might not come soon enough for the lives of many of the vulnerable individuals stuck in this “legal hellhole” and the sanity of many of the judges still on the bench.
Baez-Sanchez v. Barr, 7th Cir., 01-23-20, published
PANEL:BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.
OPINION BY: Judge Easterbrook
KEY QUOTE:
What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our deci- sion is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive in- admissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under §1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under §1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez- Sanchez has filed a second petition for review.
We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.
The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the la]er. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive deci- sions, not subject to disapproval or revision by another branch of government. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). We acted under a statutory grant of authority to review the Board’s decisions. 8 U.S.C. §1252(a)(1). Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.
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A NOTE TO THE 7TH CIRCUIT AND OTHER ARTICLE III JUDGES:
My sympathies to you.
But, frankly, rather than coming as a “shock,” you should know that similar stuff happens every day in our U.S. Immigration Courts, which are not “courts” by any known definition, do not provide fair and impartial decision makers, do not satisfy even minimal standards of Constitutional Due Process, and operate in a blatantly unconstitutional manner that you and your colleagues in other circuits and the Supremes have condoned for decades as it unfolded right under your noses. Contempt for the law, disregard of basic Due Process and fundamental fairness, bias against immigrants, particularly asylum seekers, rude treatment, disrespect for lawyers, contempt for the other coequal branches of Government, and failure to respect human decency and dignity are now among the “staples” of today’s “captive” Immigration Courts.
It’s just that most litigants don’t have the wherewithal and and access to competent lawyers to take their cases all the way to the Circuit Courts, sometimes several times as happened in this particular case, in a search for justice. They are, in very plain terms, simply railroaded out of the country without regard to the law or our Constitution.
Sadly, even when they do get before your colleagues across the country, far too many of them ignore the contemptuous travesty of justice being perpetrated by the Department of Justice in the Immigration “Courts.” They merely “rubber stamp” the defective final product. It’s called “going along to get along” or “cowardice in the face of tyranny.”
For some reason, not obvious those of who once put our careers on the line to stand up for justice and the legal rights and human dignity of the most vulnerable among us, many, many Article III Judges seem to treat “life tenure” as a sinecure that empowers them to ignore needlessly ruined lines and human suffering, rather than as an opportunity, given to none others within our democratic institutions, to stand up for truth, justice, and the Constitution, even in the face of an overbearing and tyrannical Executive who has no respect for your functions.
Since you seem to have disturbingly little understanding of the true nature of the system which forms a significant part of your appellate workload, let me help you out. Members of the Board of Immigration Appeals are not true “judges” in any sense of the word. They are “employees” of Attorney General Billy Barr.
Billy himself is an acolyte of the “Unitary Executive” — a neo-fascist concept described by former White House Counsel and ex-con John Dean as meaning “that neither Congress nor the federal courts can tell the President what to do or how to do it.” In Billy’s view,. the power of Donald Trump, or any other GOP President (I doubt that he would apply it to a Democrat President), is unlimited and unfettered and the functions of the Judiciary and the Legislature are largely meaningless, except to the extent that they align with Trump’s agenda. The same goes for the U.S. Constitution and the U.S. Code. They are nothing more than what Donald Trump and his toadies like Billy say they are.
Billy Barr is also an unapologetic agent of DHS Enforcement. Although nominally listed as a “party” before these “kangaroo court’ proceedings involving migrants, Barr and his equally contemptuous and lawless predecessor, Jeff “Gonzo Apocalypto” Sessions, have made it clear that “their judges” are to operate as an adjunct of their “partners” at DHS enforcement. Their only meaningful function is to railroad as many migrants as possible out of the country without regard to Due Process or legal rights.
Indeed, both Barr and Sessions have simply rewritten the law, through bogus “precedent decisions” that plainly violate the basic rules of judicial ethics requiring impartiality and forbidding prejudgment of cases, as will as requiring that litigants and their attorneys be treated with basic respect and civility. All of these “bogus precedents” favor DHS Enforcement; none favor the individuals trying to save their lives and vindicate their legal rights. A number reverse well-established rules insuring fair adjudication, particularly for asylum seekers, while others deprive “their judges” of even minimal power to manage their dockets in a rational manner.
Additionally, Sessions and Barr have proved to be historically incompetent managers. While doubling the number of Immigration Judges, by hiring almost exclusively from the ranks of government prosecutors, they have more than doubled the court backlog, now approximately 1.1 million “active” cases with another 300,000 “waiting in the wings” as a result of a mindless and unethical precedent decision by Sessions reversing years of slow but incremental progress on docket management.
They have also created this dysfunctional mess through a process of eliminating the reasonable and sensible use of priorities and “prosecutorial discretion” by DHS in the Immigration Courts as well as by using a process known as “Aimless Docket Reshuffling” or “ADR.” Under ADR, judges and cases are shuffled around the country and the dockets are rearranged to respond to the “emergency of the day” while “ready for trial” cases, some of which have been pending for many years, are arbitrarily “orbited” to the end of dockets, some of which stretch out beyond 2024.
The judges and Board Members work for Billy Barr, who can fire them, reassign them, send them off to the FOIA unit, or turn them into “hall walkers.” (All of which actually happened during the reign of John Ashcroft, where a group of us were “punished” for exerting our authority as independent quasi-judicial officials and the BIA was absurdly cut from 23 Members to 12, under an astoundingly disingenuous claim of “efficiency.”By comparison, Barr recently announced an equally ill-conceived and unjustified plan to expand the BIA to over 50 Members stationed throughout the country).
Under these conditions, it is hardly surprising that Board Members feel themselves compelled and justified in ignoring your court orders in favor of a footnote in letter from the Attorney General, “the boss.” It’s completely consistent with the theory of the all-powerful “Unitary Executive” and the actuality that Board Members and Immigration Judges are constantly told that there are “mere employees” of the Attorney General required to carry out his “policies” under the threat of job loss.
The good news is that you folks aren’t as powerless as you seem to think yourselves to be. You don’t actually need a “motion” from private counsel to:
Hold this systemic clown show purporting to be a “court” system unconstitutional, as it most surely is, and shut it down pending legislative reform;
Throw Billy Barr in jail for his contemptuous behavior in allowing the BIA to violate your valid orders and then compounding it by neither confessing error nor apologizing, but rather sending his DOJ attorneys in to waste your valuable time and insult your intelligence;
Schedule some contempt hearings for non-compliant EOIR officials and explain to them that the “Unitary Executive” is nothing more than a figment of Billy’s warped imagination and that, no matter who signs their paychecks, they are obliged to follow the laws, obey your orders, provide Constitutional Due Process of law to individuals coming before them, exercise independent judgment based on the law and facts in the record, and ignore any nonsense stemming from Billy & company that flies in the face of any of the foregoing.
Then and only then, by standing up for the rights of the most vulnerable among us and your constitutional prerogatives, will you become part of the solution instead of “just another snappy quote line in one of my Courtside headlines.”
If you don’t act now, this dysfunctional mess of an out of control, illegal, and grotesquely mismanaged system will eventually fall into your collective judicial laps, no matter how much you would like to shun it. For example, Billy is encouraging, basically demanding, that the BIA make more use of largely judicially discredited. “summary affirmances” and often arbitrary, capricious, and sloppily reasoned, “single member opinions,” both entered without meaningful deliberation or discussion, to “rubber stamp” more removal orders. Indeed, one of your retired colleagues, Judge Richard Posner, was an outspoken critic of the shockingly unprofessional and frequently incorrect results produced by the earlier “weaponization” of “assembly line justice,” featuring “summary affirmances” and “single member decisions” resulting from the “Ashcroft debacle.”
Billy and his EOIR bureaucratic toadies fully intend to further reduce the already questionable quality of the “legal product” that the BIA sends your way. They are counting on you folks to either 1) look the way and join the”rubber stamp brigade,” or 2) do their dirty work for them. At that point, you will not be able to avoid the “judgment of history” regarding your own complicity and fecklessness in the face of lawless tyranny that is destroying our precious democratic institutions and even more precious human lives every day. Wake up and act, before it’s too late, for you and for our nation!
Due Process Forever!
With my very best wishes,
PWS
01-25-19
FOOTNOTE:
For those interested, Judge Easterbrook was appointed by President Reagan; Judge Bauer by President Ford; and Judge Hamilton by President Obama.
If nothing else, Billy and EOIR are uniting judges across the political spectrum in their disgust and outrage.
President Trump is escalating his attacks on federal unions to a new level.
For the first time, the Trump administration is seeking to bust a union, the National Association of Immigration Judges, by declaring that its members are managers ineligible for labor organization membership. It’s tantamount to decertification.
A possible change in the judges’ status from staffers to managers raises another issue beyond union membership: Should judges be part of the Justice Department, the law enforcement agency whose cases the judges consider?
Making immigration judges part of the department’s management could politicize their role during a period when Trump’s aggressive immigration practices are among his more controversial policies.
This case intensifies a series of administration actions designed to undermine federal labor organizations. The most notable of those occurred in May 2018 when Trump issued three executive orders that hit federal unions by, among other things, making it harder for union leaders to organize, represent employees and use agency facilities.
Arguments from both sides of the attempted union busting are now being considered by the Federal Labor Relations Authority, a small independent agency that resolves federal labor-management disputes. Two of the three authority members are Trump appointees.
Justice Department officials say the judges are essentially management officials “and should be excluded from a bargaining unit” in papers filed this month with the authority.
The department is fighting history, hoping it does not repeat.
In 2000, when Bill Clinton was president, the authority considered the same issue and, as the administration’s brief acknowledges, “determined that immigration judges are not management officials.”
So why re-fight a lost battle?
Justice officials now contend that decision “was wrongly decided” and has been undermined by changes in the law that affect immigration judges’ decisions.
Administrative decisions and federal court rulings since the authority’s 2000 decision, according to Justice, significantly influence “the ability of immigration judges to determine, formulate, or influence policy of the Agency,” rendering them more management than labor.
A decision by an immigration judge, the brief added, “commits or binds the Agency to a course of action,” a characteristic of management. Currently there are 465 immigration judges, the most ever, according to the department.
The association, however, says not only have the judges’ duties not changed since the earlier decision, but they are “less able to influence policy” than they were then.
“Immigration Judges are now subject to mandatory performance reviews and efficiency metrics,” the association said in its brief. “The Agency has increased control over the procedures and protocols of the judges’ courtrooms. It has implemented a restrictive public speaking policy, blocking judges from many speaking engagements,” the union’s brief said.
On top of that, agency managers “are frequently in the courthouses, supervising and evaluating the Immigration Judges. These changes give the judges yet less authority than before, showing that the Agency clearly treats them as employees.”
The judges have important allies.
When the union hit was proposed last year, a statement by House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and immigration subcommittee Chairwoman Zoe Lofgren (D-Calif.) said the administration “has taken unprecedented steps to strip immigration judges of judicial independence.”
The union-busting attempt, they added, “underscores why we need an immigration court system that is separate and independent from the Executive Branch.” The committee leaders planned a hearing on creation of an independent immigration court.
During an interview, union president A. Ashley Tabaddor said housing the current immigration court in the Justice Department is a “major structural design defect” whose conflicts of interest, vulnerabilities and weaknesses have been particularly exploited under Trump.
She likened the immigration courts under him to a “widget factory model process [where] the judges have been subjected to quotas and deadlines, which intrudes upon their decision-making authority. The court system has been micromanaged from the top based on law enforcement priority.”
Busting the union would be “a dark day not only for every immigrant who appears before the immigration court, but also for the deeply [held] American principle that courts must be balanced and neutral in order to administer justice,” according to an email from Gregory Chen, the American Immigration Lawyers Association’s government relations director.
If the union is busted, he said, “There will be no voice that speaks for the judges, and the administration will have unchecked power to pressure the courts to serve as a tool of enforcement rather than justice.”
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As Due Process and fundamental fairness die in America, all of us are losers. And, the Trump regime is making a concerted effort to dismember every American institution that protects constitutional rights and due process for all.
By KATE BRUMBACK, DEEPTI HAJELA and AMY TAXIN, THE ASSOCIATED PRESS
In a locked, guarded courtroom in a compound surrounded by razor wire, Immigration Judge Jerome Rothschild waits — and stalls.
A Spanish interpreter is running late because of a flat tire. Rothschild tells the five immigrants before him that he’ll take a break before the proceedings even start. His hope: to delay just long enough so these immigrants won’t have to sit by, uncomprehendingly, as their futures are decided.
“We are, untypically, without an interpreter,” Rothschild tells a lawyer who enters the courtroom at the Stewart Detention Center after driving down from Atlanta, about 140 miles away.
In its disorder, this is, in fact, a typical day in the chaotic, crowded and confusing U.S. immigration court system of which Rothschild’s courtroom is just one small outpost.
Shrouded in secrecy, the immigration courts run by the U.S. Department of Justice have been dysfunctional for years and have only gotten worse. A surge in the arrival of asylum seekers and the Trump administration’s crackdown on the Southwest border and illegal immigration have pushed more people into deportation proceedings, swelling the court’s docket to 1 million cases.
“It is just a cumbersome, huge system, and yet administration upon administration comes in here and tries to use the system for their own purposes,” says Immigration Judge Amiena Khan in New York City, speaking in her role as vice president of the National Association of Immigration Judges.
“And in every instance, the system doesn’t change on a dime, because you can’t turn the Titanic around.”
The Associated Press visited immigration courts in 11 different cities more than two dozen times during a 10-day period in late fall. In courts from Boston to San Diego, reporters observed scores of hearings that illustrated how crushing caseloads and shifting policies have landed the courts in unprecedented turmoil:
–Chasing efficiency, immigration judges double- and triple-book hearings that can’t possibly be completed, leading to numerous cancellations. Immigrants get new court dates, but not for years.
–Young children are everywhere and sit on the floor or stand or cry in cramped courtrooms. Many immigrants don’t know how to fill out forms, get records translated or present a case.
— Frequent changes in the law and rules for how judges manage their dockets make it impossible to know what the future holds when immigrants finally have their day in court. Paper files are often misplaced, and interpreters are often missing.
In Georgia, the interpreter assigned to Rothschild’s courtroom ends up making it to work, but the hearing sputters moments later when a lawyer for a Mexican man isn’t available when Rothschild calls her to appear by phone. Rothschild is placed on hold, and a bouncy beat overlaid with synthesizers fills the room.
He moves on to other cases — a Peruvian asylum seeker, a Cuban man seeking bond — and punts the missing lawyer’s case to the afternoon session.
This time, she’s there when he calls, and apologizes for not being available earlier, explaining through a hacking cough she’s been sick.
But by now the interpreter has moved on to another courtroom, putting Rothschild in what he describes as the “uneasy position” of holding court for someone who can’t understand what’s going on.
“I hate for a guy to leave a hearing having no idea what happened,” he says, and asks the lawyer to relay the results of the proceedings to her client in Spanish.
After some discussion, the lawyer agrees to withdraw the man’s bond petition and refile once she can show he’s been here longer than the government believes, which could help his chances.
For now, the man returns to detention.
. . . .
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Read the full article at the link.Yes, there’s lots of blame to go around: Administrations of both parties, an irresponsible Congress, several decades of underfunding and poor management.
But that doesn’t change these simple truths:
We have a scofflaw regime that glories in committing “crimes against humanity” directed at migrants;
We have a feckless Congress that won’t legislate responsibly as long as “Moscow Mitch” McConnell and his Trump-toady GOP control the Senate;
The only branch of Government that could put a stop to this unconstitutional and unconscionable mess is the Article III Federal Judiciary;
And, this highly privileged group of jurists, the only public officials I’m aware of with the “protective insulation” of life tenure, has stood by and watched their fellow humans being “thrown to the lions” in this disgraceful display of unconstitutional injustice.
Do your duty Article IIIs and put an end to the EOIR Clown Show! History is recording your failures to act, every day!
Due Process Forever; Clown Courts 🤡 and Their Complicit Enablers, Never!
Another one bites the dust
Another one bites the dust
And another one gone, and another one gone
Another one bites the dust…
—“Another One Bites The Dust” by Queen
ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire
By Paul Wickham Schmidt
Exclusive for Courtside
Alexandria, VA, Jan. 16, 2019. Appellate Immigration Judge Linda Wendtland will soon retire from the BIA. Acting Chair Garry D. Malphrus made the announcement to judges and staff.
Judge Wendtland is the fourth veteran appellate jurist to leave the BIA recently, following the retirements of Judges Patricia Cole, John Guendelsberger, and Molly Kendall Clark at the end of 2019. Additionally, former BIA Chair Judge David Neal retired suddenly in October.
Thus, the Trump regime’s aggressive effort to “dumb down” and weaponize the U.S. Immigration Courts as a means of depriving migrants of any semblance of due process of law appears to be taking its toll on our nation’s highest administrative immigration tribunal. The BIA now has six vacancies among its 21 authorized judges, including the Chair. Based on recent hiring, we can expect only candidates with established pro-enforcement records and inordinately high rates of asylum denial to be appointed to BIA judgeships by Attorney General Barr.
Judge Wendtland was appointed in 2008 by Attorney General Mukasey, following a long career as a senior litigator in the Office of Immigration Litigation in the DOJ’s Civil Division. She is generally regarded as scholarly, analytical, and occasionally willing to take positions favoring migrants rather than DHS in appellate decisions, notwithstanding her government litigation background. The qualities of scholarship, impartial analysis, and decisional independence appear to have fallen “out of vogue” in the selection of Immigration Judges at both the trial and appellate levels in the Trump regime’s DOJ.
Indeed, and shockingly to those of us in the Round Table of Former Immigration Judges, former Attorney General Jeff Sessions publicly emphasized that Immigration Judges should be “partners” with DHS enforcement while he spread false, unsupported narratives about widespread asylum fraud and “dirty” immigration lawyers. Many found these biased statements of expected “judicial subservience” to a highly politicized and controversial immigration enforcement agenda to be astounding, particularly since most of the “fraud” that has come to light recently relates to the regime’s inhumane treatment of asylum seekers and denial of their due process and legal rights to apply for protection in the United States. All of the actions to date by Attorney General Barr show that he shares the same biased, enforcement skewed view of the Immigration Courts as mere appendages of DHS enforcement as did his predecessor.
Judge Wendtland’s departure will be yet another blow to the few remnants of EOIR’s once proud, but now forgotten and despised, “vision” of “through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that’s now become a cruel joke for many endangered asylum seekers being rejected at our Southern Border without any semblance of fairness or due process whatsoever.
Thanks for your service, Judge Wendtland, and best wishes in the future.
The Trump administration argued in an executive branch court on Tuesday that the duties of immigration judges housed within the Justice Department have grown more important in the last two decades, elevating the judges to management and therefore rendering them ineligible to form a union.
The Justice lawyers and their first witness—James McHenry, the director of the Executive Office of Immigration Review, which employs the nation’s 400 immigration judges—faced pointed questions from an attorney with the Federal Labor Relations Authority who oversaw the hearing and questioned whether the judges actually set department policy. The administration first announced in August it would attempt to decertify the National Association of Immigration Judges, bringing the case to FLRA to argue the employees are not eligible to collectively bargain.
Union representatives argued at Tuesday’s hearing that their members’ duties have not fundamentally changed since 2000, when the Justice Department last attempted to decertify the union. FLRA rejected the Justice Department’s argument that year that immigration judges make policy through the issuance of decisions, noting the judges do not set precedent and their rulings are often appealed and reviewed. FLRA also said the immigration court system was established specifically so judges do not maintain any management duties to enable them to focus on hearings.
The arguments followed a similar path on Tuesday, though Justice attorneys and McHenry said several changes to Executive Office of Immigration Review policy and relevant precedents created an opening for a new FLRA ruling. William Krisner, the regional attorney for FLRA’s Washington office who presided over the hearing, said Tuesday morning the authority would first have to determine if anything had changed since 2000 before ruling on the merits of the case. William Brill, a Justice attorney, pointed to a 1999 streamlining effort by the department that enabled the immigration appeals board within the review office to simply affirm a judge’s ruling without issuing a separate opinion as one such change. The change was not presented during the previous FLRA case, Brill said, and was amplified in 2002 when EOIR again shifted course to allow just one board member to affirm a judge’s ruling.
Facing Brill’s questioning, McHenry said the “factual day-to-day” of immigration judges’ work has not changed since 2000 but the “legal significance of those duties” had been overhauled.
Legal changes have “fundamentally recast the nature and importance of immigration judge duties,” McHenry said.
Richard Bialczak, an attorney for the union, rejected the argument, saying Justice’s claims were nothing more than a retread.
The Trump administration is “raising the same arguments and hoping for a different outcome,” Bialczak said. “There’s no factual basis for it. The Department of Justice simply does not want to deal with a vocalunion that asserts its rights.”
Brill also argued immigration judges’ workload increasingly involves issuing decisions that cannot be appealed to the Executive Office of Immigration Review’s board. While immigrants can appeal those cases to the federal circuit, Brill and McHenry said the judge’s initial ruling represents the department’s official position. Immigration judges collectively issued about 280,000 decisions in fiscal 2019, about 38% of which could not be appealed to the Board of Immigration Appeals.
Justice also pointed to Lucia v. SEC—a 2018 Supreme Court case that dictated that administrative law judges must be appointed by the president or a designated official, rather than hired normally—as relevant to immigration judges. The Executive Office of Immigration Review employees are administrative judges, not administrative law judges, but McHenry said their “duties and functions are very similar.”
“It’s difficult to conceive someone who needs to be appointed by the head of an agency but does not make management decisions,” Brill said.
Margaret Tough, another attorney for the union, countered that Lucia had no bearing on immigration judges, who are appointed by the attorney general and have been dating back prior to 2000. She and Bialczak said the judges are now under stricter oversight by management, facing new performance evaluations, quotas for their annual caseload and a restriction on speaking publicly. On cross examination, McHenry noted the judges can face discipline if their rulings are not up to acceptable standards and the board can remand cases back to them. Under their performance standards, judges cannot exceed a pre-set remand rate.
Upon follow-up questioning from Kirsner, the FLRA attorney, McHenry conceded the judges “are not supervisors.”
“Immigration judges are at the bottom of the org chart so they don’t supervise anything,” McHenry said, noting they cannot hire or fire anyone.
Tough highlighted that the Executive Office of Immigration Review has hired additional supervisory judges and under McHenry created the Office of Policy, which the agency director said was launched to “ensure better coordination of policy making within the agency.” He added, however, that adjudicatory policy making remained the sole power of immigration judges and their supervisors cannot influence the judges’ rulings.
Kirsner repeatedly sought more information on immigration judges’ power to set precedent. Generally speaking, their rulings do not influence more than the case at hand. Kirsner also clarified that unless there is a remand, their work on a case is finished after they issue a decision. Justice attorneys noted various statements in which the union suggested immigration judges should be removed from the executive branch and placed into an independent court, but Kirsner rejected them as irrelevant.
FLRA is expected to continue to hear from witnesses through Thursday before issuing a decision on the union’s fate later this year.
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Many thanks to my long-time friend, fellow retired judicial colleague, member of the Round Table, and former NAIJ President Judge Joan Churchill for passing this along.
“Immigration judges are at the bottom of the org chart so they don’t supervise anything,” McHenry said, noting they cannot hire or fire anyone.
FLRA also said the immigration court system was established specifically so judges do not maintain any management duties to enable them to focus on hearings.
The above quotes “say it all” about the absurd position being argued by the DOJ. But, since neither administrative nor Article III courts hold the regime accountable for dishonesty before tribunals and engaging in frivolous litigation, like private parties would be, there is no incentive for the regime and its toadies at DOJ to stop flooding the courts with lies, misrepresentations, and meritless litigation.
Indeed, the Article IIIs unwillingness to deal “head-on” with the clearly unconstitutional nature of the Immigration Courts and their grotesque and unethical mismanagement by the DOJ have lead to an absurd growing backlog of 1.3 million cases (each involving real human lives) and the impending collapse of one of the largest sectors of the American justice system. What will it take for the “life-tenured ones in their ivory towers” to get out of the clouds and engage in the fray before it’s too late for our nation?
As I say over and over: Imagine if we had an honest Administration and Article III courts with integrity that forced the Government and private parties to work together to solve pressing legal and policy problems, particularly in the field of immigration, rather than squandering time and resources on Government-generated meritless litigation and schemes intended to collapse our entire justice system?
Worse yet, Article III Courts like the Supremes and the Fifth Circuit regularly reward the regime for its scofflaw performances, thus showing contempt for their own judicial roles, our Constitution, the rule of law, and, worst of all, for the human lives destroyed by invidiously motivated and illegal policies of the Trump regime. It also encourages this scofflaw behavior to continue and escalate.
That’s why the feeble and feckless complaints by Chief Justice Roberts about loss of respect for the courts and the ugly tenor of public discourse encouraged and engendered by the Trump regime are so discouraging and annoying. Actions speak louder than words, Chiefie! And, Trump has figured out that you’re all bluster and no backbone when it comes to standing up and speaking out in real cases about his all-out assault on American democracy!
Finally, let’s not forget that while DOJ/EOIR “management” is squandering everyone’s time on wasteful and frivolous efforts like “decertification,” here are just a few of the real management problems facing the Immigration Court system:
No e-filing system;
Growing 1.3 million case backlog, notwithstanding almost doubling the number of Immigration Judges, with no coherent plan for addressing it effectively for the foreseeable future;
Inaccurate and deficient record keeping as documented by TRAC;
Defective hearing notices;
Rock bottom judicial and staff morale, resulting in premature departure of some of the “best and brightest;”
“Single source” judicial selection process that effectively excludes non-Governmental candidates from the Immigration Judiciary;
Huge discrepancies among judges in asylum decision-making;
Continuing quality control problems with both Immigration Judges and BIA Judges misapplying basic legal standards and established precedents, as noted by Circuit Court decisions;
Problems in providing qualified in-person interpreters for hearings;
Inadequate training of Immigration Judges.
Seems like we’d all be better off if the NAIJ, rather than what passes for “EOIR management” were in charge of our Immigration Courts. And, while the FLA’s Krisner quite properly ruled it irrelevant to the proceedings before him, it’s more obvious than ever that the myriad of problems plaguing the Immigration Courts can’t and won’t be solved until there is an independent, Article I U.S. Immigration court established outside the Executive Branch!
Immigration judges decided a record number of asylum cases in FY 2019. This past year judges decided 67,406 asylum cases, nearly two-and-a-half times the number from five years ago when judges decided 19,779 asylum cases. The number of immigrants who have been granted asylum more than doubled from 9,684 in FY 2014 to 19,831 in FY 2019. However, the number of immigrants who have been denied asylum or other relief grew even faster from 9,716 immigrants to 46,735 over the same time period.
More Chinese nationals were granted asylum than any other nationality. Next came El Salvadorian nationals, followed by asylum seekers from India.
Six-nine percent of asylum seekers were denied asylum or other relief in 2019. Nevertheless, 99 out of 100 attended all their court hearings.
Access to an attorney impacted the asylum outcomes. Only 16 percent of unrepresented asylum applicants received asylum or other forms of deportation relief. In contrast, twice the proportion (33%) of asylum applicants with an attorney received asylum or other relief.
Overall, asylum applicants waited on average 1,030 days – or nearly three years – for their cases to be decided. But many asylum applicants waited even longer: a quarter of applicants waited 1,421 days, or nearly four years, for their asylum decision.
To examine these results in greater detail by nationality and court location, TRAC’s free asylum app is now updated with data through the end of November 2019 at:
Additional free web query tools which track Immigration Court proceedings have also been updated through November 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:
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 US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563 trac@syr.edu http://trac.syr.edu
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to http://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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SOME INTERESTING TAKEAWAYS:
Contrary to regime false narratives, non-detained asylum seekers continued to show up for their hearings approximately 99% of the time.
Contrary to recent EOIR claims, representation of asylum seekers continued to make a huge difference: twice as many represented asylum seekers received relief.
Nearly 20,000 individuals were granted asylum in FY 2019, twice as many as in FY 2014, although the number of cases denied grew even faster by 4.5x, to 46,735.
The three “Northern Triangle” countries, El Salvador, Guatemala, and Honduras ranked among the top five in number of asylum claims granted.
Session’s biased decision in Matter of A-B- appears to have been responsible for artificially depressing asylum grant rates starting in June 2018.
Even with extraordinary efforts by the regime to “game” the asylum system against applicants, 31% of the applicants still were successful in gaining relief in FY 2019.
The New Due Process Army continues to “take the battle” to the regime: despite regime efforts to inhibit and discourage representation, nearly 85% of asylum applicants were represented in FY year 2019, a slight increase over the previous FY.
Unrepresented asylum applicants are “railroaded” though the system at a much higher rate than represented applicants: nearly half of the unrepresented asylum cases that started in 2019 were completed, as opposed to approximately 10% of the represented ones.
Non-detained, represented asylum applicants wait an average of three years for a merits hearing in Immigration Court.
The number of asylum cases decided by Immigration Judges has risen 250% over the past five fiscal years.
Asylum cases were 22.6% of the Immigration Court final decisions in FY 2019, as opposed to 10.7% in FY 2014.
Deciding more asylum cases while intentionally “stacking” the system against asylum seekers has not stopped the mushrooming Immigration Court backlogs.
NDPA NEWS: THE ROUND TABLE OF FORMER IMMIGRATION JUDGES: An Impressive Body Of Work Advancing & Defending Due Process!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog
Our fearless leader, Judge Jeffrey S. Chase reports on the list of Amicus Briefs we have filed since the summer of 2017:
1. BIA Matter of Negusie (7/10/2017) 7 White & Case
2. AG Matter of Castro-Tum (2/16/2018) 14 Akin Gump
3. 9th Cir. CJLG v. Sessions (3/15/2018) 11 Simpson Thacher
4. 10th Cir. Matumona v. Sessions (3/21/2018) 11 Sidley Austin
5. AG Matter of A-B- (4/27/2018) 16 Gibson Dunn
6. 5th Cir. Canterero v. Sessions (5/23/2018) 13 Sidley Austin
7. 9th Cir. Rodriguez v. Sessions (7/27/2018) 20 Wilmer Hale
8. BIA Matter of M-J- (8/07/2018) 20 Gibson Dunn
9. 4th Cir. N.H. v. Whitaker (2/14/2019) 27 Gibson Dunn
10. 10th Cir. Matumona v. Whitaker (2/19/2019) 24 Sidley Austin
11. 1st Cir. OLDB v. Barr (3/11/2019) 27 Gibson Dunn
12. 2d Cir. Orellana v. Barr (4/09/2019) 26 NYU Law School
13. 2d Cir. Kadria v. Barr (4/05/2019) 25 NYU Law School
14. 2d Cir. Banegas-Gomez v. Barr 26 NYU Law School
15. 2d Cir. Pastor v. Barr (4/10/2019) 26 NYU Law School
16. 3d Cir. Giudice v. Att’y Gen.(2 briefs) 26 NYU Law School
17. 1st Cir. De Pena Paniagua v. Barr (4/22/2019)29 Gibson Dunn
18. 9th Cir. Karingithi v. Barr (4/25/19) Boston College Law School
19. 1st Cir. Pontes v. Barr (4/25/2019) Boston College Law School
20. 10th Cir. Zavala-Ramirez v. Barr (5/01/2019) Boston College Law School
21. 10th Cir. Lopez-Munoz v. Barr (5/01/2019) Boston College Law School
22. Sup. Ct. Barton v. Barr (7/03/2019) 27 Pillsbury Winthrop
23. N.D. Ca. East Bay Sanctuary v. Barr 24 Covington
24. 9th Cir. Padilla v. ICE (9/04/2019) 29 Wilmer Cutler
25. 5th Cir. Sorev v. Barr (9/25/2019) 30 White & Case
26. 1st Cir. Boutriq v. Barr (9/25/2019) 31 Harvard Law School
27. 3d Cir. Ramirez-Perez v. Att’y Gen. (10/03/19) 31 Harvard Law School
28. 3d Cir. Nkomo v. Att’y Gen. (10/07/2019) 30 Boston College Law School
29. 9th Cir. Martinez-Mejia v. Barr (10/25/2019) 23 Texas A&M Law School
30. 4th Cir. Quintero v. Barr (11/04/2019) 27 Akin Gump
31. 3d Cir. Campos-Tapia v. Barr (11/25/19) 30 Texas A&M Law School
32. 2d Cir. Guasco v. Barr (12/11/2019) 31 Harvard Law School
33. Sup. Ct. Nasrallah v. Barr (12/16/2019) 33 Gibson Dunn
34. 1st Cir. Doe v. Tompkins (12/23/2019) 34 Jerome Mayer-Cantu, Esq.
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Great work!Proud and honored to be a member ofthe Round Table!
And, of course, special appreciation and a big shout out to all of of those wonderful firms, lawyers, institutions, and organizations listed above who have “given us a voice” by providing beyond outstanding pro bono representation!
