Category: Immigration Judge Training

EOIR DIRECTOR McHENRY TRIES TO EXPLAIN TRASHING OF DUE PROCESS TO SKEPTICAL HOUSE DEMS — DOJ Leadership Has Turned “Courts” Into “A DMV For Deportation,” Says Chairman Jose Serrano (D-NY)!— Many Cases From Trump Shutdown Still “MIA” While Lives Hang In The Balance!

https://www.cbsnews.com/news/immigration-court-government-shutdown-immigrants-waiting-for-cancelled-hearings-rescheduled-2019-03-11/

Kate Smith reports for CBS News:

Immigration courts are still wading through the disruptions caused by the government shutdown, which closed the courts and effectively cancelled between 50,000 and 95,000 hearings in December and January.

Congressman Jose Serrano, who chaired the hearing, called the delay “deeply problematic,” in an email to CBS News. The nation’s immigration courts reopened on January 28 after being closed for over a month during the partial government shutdown.

“It is ironic that this Administration’s obsession with building a wall only increased the number of immigrants in limbo, aggravating an already serious crisis,” said Serrano, who represents New York’s 15th district. “There needs to be a serious effort to reschedule these hearings quickly”

Although McHenry estimated that 50,000 immigration cases were cancelled during the shutdown, others say the number could be nearly double that. According to Syracuse University’s TRAC, 80,051 hearings during the shutdown were either outright cancelled or had their status left unchanged — the hearing date simply came and went without acknowledgement, leaving affected migrants to wonder what comes next.

TRAC said the number of cancelled cases rises to more than 94,000 when it includes other factors, like “Docket Management” or “Immigration Judge Leave.”

Many hearings scheduled for the week after the government reopened were also postponed as court clerks waded through over a month’s worth of filings that hadn’t been touched during the shutdown. Rather than processing those documents, court administrators in Charlotte, North Carolina, for example, threw them into brown cardboard boxes for clerks to deal with once the court opened, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina.

The immigration court system, which is overseen by the Department of Justice, handles a range of cases involving non-citizens, including issuing green cards and ruling on asylum claims. The courts also serve as a necessary step toward temporary Social Security cards — needed for work permits and driver’s licenses — making hearings intensely important for immigrants.

The Executive Office of Immigration Review declined to comment on the status of the courts after the shutdown.

CBS News spoke with six immigration attorneys, all of which have at least one client whose cancelled case hasn’t yet been rescheduled. Many of the hearings that were have yet to be rescheduled are for migrants seeking asylum, a legal form of immigration for people fleeing persecution and threats in their home country. One immigrant was waiting on a final hearing on their asylum case, a decision that would determine whether she gets to stay in the United States or be deported.

“The impact on the client is just not knowing,” said McKinney.

The cancellations have also added to the system’s record-high case backlog, which McHenry estimated to be 850,000 during Thursday’s hearing. Once the courts have fully realized the impact from the shutdown, immigration advocates predict it will get even bigger.

For the immigrants with cancelled hearings, getting back in front of a judge could take years. At the Newark, New Jersey immigration court, some cancelled hearings have been penciled in as far back as August 2021, said Alan Pollack, an immigration attorney in New Jersey, in an interview with CBS News. In Houston, the immigration court begun issuing dates in 2022, said Ruby Powers, an immigration attorney.

“We’re getting a bit used to things taking a while and a dose of chaos,” Powers said.

First published on March 11, 2019 / 12:29 PM

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

Here’s Subcommittee Chairman Jose Serrano’s (D-NY) “spot on” statement about the DOJ’s “dissing” of Due Process at EOIR.

https://appropriations.house.gov/news/press-releases/chairman-serrano-statement-at-hearing-on-executive-office-for-immigration-0

Chairman Serrano Statement at Hearing on Executive Office for Immigration Review

March 7, 2019
Press Release

Congressman José E. Serrano (D-NY), Chair of the Commerce, Justice, Science and Related AgenciesAppropriations Subcommittee, delivered the following remarks at the Subcommittee’s hearing on the Executive Office for Immigration Review:

The subcommittee will come to order.

For our second hearing of the year, today we welcome James McHenry, the Director of the Executive Office for Immigration Review, or EOIR.  EOIR primarily functions as our nation’s immigration court system, where it administers and adjudicates our nation’s immigration laws.  Thank you for being with us, Director McHenry.

I wanted to hold this hearing because I have deep concerns about how our nation’s immigration courts are operating.  Some of those concerns are longstanding, while others have been exacerbated by the decisions of the Trump Administration.

Our nation’s immigration courts handle a wide variety of immigration-related claims, from removal proceedings to asylum claims.  These are complex, nuanced proceedings that require time, understanding, and care. In many cases, the consequence­­—removal from this country—is so severe that we must have significant due process to ensure that no one’s rights are violated in an immigration court proceeding.

Unfortunately, these concerns are increasingly being shoved aside.  This, in part, is due to the enormous, and growing, backlog of pending cases before the courts, which is now more than 1 million cases, according to the Transactional Records Access Clearinghouse at Syracuse University.  That growth is largely due to the significant increase in immigration enforcement efforts over the past 15 years, which has not been followed by a similar growth in the immigration court system.  Although this subcommittee has included significant increases in immigration judge teams for the past two fiscal years, the backlog has actually increased under the Trump Administration.   This situation was worsened by the recent government shutdown.

The reasons for that are sadly clear.  The leadership at the Justice Department has attempted to turn our immigration courts into a sort of deportation DMV– where immigrants get minimal due process on their way out the door.  This Administration has chosen to: impose quotas on immigration judges to limit case consideration regardless of complexity; limit the ways in which immigrants can make valid claims for asylum; increase the use of videoconferencing to reduce in-person appearances; and undermine the discretion of immigration judges to administratively close cases, among many other things. Ironically, these choices, supposedly aimed at efficiency, have actually increased the backlog.

I believe our immigration courts should strive to be a model of due process.  A couple of bright spots in that effort are the Legal Orientation Program and the Immigration Court Help Desk, both of which help to better inform immigrants about their court proceedings. We should seek to expand such programs.

Despite these efforts, in our current system, an estimated 63 percent of immigrants do not have legal counsel.  We’ve all read stories about children, some as young as 3 years old, being made to represent themselves.  That is appalling. Our immigration laws are complicated enough for native English speakers, let alone those who come here speaking other languages or who are not adults.  We can, and should, do better than this.

Today’s hearing will explore the choices we are making in our immigration court system, to better understand how the money we appropriate is being used, and whether it is being used in line with our expectations and values.  Thank you, again, Director McHenry, for being here.

Now let me turn to my friend, Mr. Aderholt, for any comments he may have.

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

It’s painfully obvious that Director McHenry doesn’t have the faintest idea how many cases are actually “off docket” because of the Trump Administration’s malicious incompetence, a/k/a ”Aimless Docket Reshuffling.”

As Chairman Serrano observed, the vision of the Immigration Courts once was “through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” That noble vision has been replaced by a “partnership” with DHS Enforcement to misconstrue the law, deny rights, punish those we should be protecting, and reduce “Immigration Judges” to menial “rubber stamps” on cruel, illegal, and unduly harsh enforcement actions in the hopes that the Article III Courts will “take a dive” and “defer” rather than intervening to put an end to this travesty.

Chairman Serrano and others have identified the problem. But they haven’t solved it!

That will require the removal of the Immigration Courts from the DOJ and establishing an independent Article I U.S. Immigration Court where Due Process can flourish, fundamental fairness will be the watchword, “best practices” (not merely expediency) will be institutionalized, and all parties will be treated equally and respectfully, thus putting an end to years of preferential treatment of DHS.

PWS

03-12-19

Related posts:

  1. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”
  2. HAPPY NEW YEAR FROM COURTSIDE! — I Take A Look Forward @ 2019’s Big Immigration Stories
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!

IN MATTER OF A-B-, SESSIONS DISINGENUOUSLY SUGGESTED SALVADORAN POLICE COULD PROTECT ABUSED WOMEN – THE TRUTH IS STARKLY DIFFERENT: American-Trained Cops Flee El Salvador Because Gangs Are In Control – Ex-Cops Granted Asylum While Helpless DV Victims Sent Back To Face Deadly Abuse – Trump Administration Continues To Pervert Asylum Law!

https://www.washingtonpost.com/world/the_americas/its-so-dangerous-to-police-ms-13-in-el-salvador-that-officers-are-fleeing-the-country/2019/03/03/e897dbaa-2287-11e9-b5b4-1d18dfb7b084_story.html

Kevin Sief reports in WashPost:

SAN SALVADOR — They were given one of the most dangerous tasks in policing: Take down MS-13.

They were bankrolled by the United States and trained by FBI agents. But members of the Salvadoran police have been killed by the dozens in each of the past three years, most in attacks that investigators and experts blame on MS-13, an international street gang. At least nine officers were killed in the first month of this year.

Now, a number of El Salvador’s police officers are fleeing the gang they were tasked with eliminating.

There is no list in either El Salvador or the United States of Salvadoran police officers who have fled the country. But The Washington Post has identified 15 officers in the process of being resettled as refugees by the United Nations and six officers who have either recently received asylum or have scheduled asylum hearings in U.S. immigration courts. In WhatsApp groups, police officers have begun discussing the possibility of a migrant caravan composed entirely of Salvadoran police — a caravana policial, the officers call it.

The exodus of Salvadoran police points to how the country’s security forces have failed to break the stranglehold of organized crime. It also shows that among those seeking refuge in the United States during the Trump administration are some of America’s closest security partners.

“These are among the most vulnerable people in El Salvador,” said Julio Buendía, the director of migration at Cáritas El Salvador, a nonprofit organization that works with the United States and United Nations on refugee resettlement.

The United States has been bolstering the Salvadoran police, part of a regional strategy intended to stabilize Central America’s most violent countries and reduce migration. The State Department spent at least $48 million to train police in El Salvador, Guatemala and Honduras from 2014 through 2017, according to the Government Accountability Office.

The department opened a law enforcement training academy in San Salvador, where 855 Salvadoran officers were trained by the FBI and other American law enforcement agencies in those four years.

“The Salvadoran government, with U.S. government support, has made significant gains in the area of security, including reductions in homicides and every other category of violent crime measured,” the State Department said in a statement issued in response to an inquiry by The Post.

Citing “privacy reasons,” the department would not comment on whether it was receiving asylum or refugee applications from Salvadoran police officers.

By some measures, the U.S.-backed security efforts appeared to be showing results. In 2018, El Salvador’s murder rate was 50.3 per 100,000 inhabitants. That was still among the highest in the world, but it was down from 60.8 per 100,000 in 2017 and 81 per 100,000 in 2016.

MS-13 was born in Los Angeles in the late 1970s, expanding as more Salvadorans arrived in the United States after fleeing the country’s civil war. The group splintered, with Barrio 18 becoming a chief rival, and both groups grew in American prisons before reaching El Salvador through mass deportations. Between 2001 and 2010, the United States deported 40,429 ex-convicts to El Salvador, according to the Department of Homeland Security.

El Salvador’s government adopted an “iron fist” response to the gangs, including more police operations. When that approach failed, it tried to broach a truce with the gangs in 2014. The pact quickly disintegrated and was followed by another surge in violence. It was then that the gangs began to explicitly broadcast their threats against police officers.

“If you kill a ‘pig,’ or a police officer, you’re more respected in these gangs. That’s the policy — using death as exchange currency,” said Héctor Silva Ávalos, a journalist and researcher who has written a book on the Salvadoran police and has served as an expert witness at several asylum hearings for former police officers in the United States.


A man with an MS-13 tattoo is detained by Salvadoran security forces during an operation in San Salvador in January. (Marvin Recinos/AFP/Getty Images)

With salaries of $300 to $400 per month, the low-level police officers who make up the majority of the force often have no choice but to live in neighborhoods vulnerable to gangs. And so, in the vast majority of the cases, police officers are killed when they are home from work or are on leave.

In August, Manuel de Jesús Mira Díaz was killed while buying construction materials. In July, Juan de Jesús Morales Alvarado was killed while walking with his 7-year-old son on the way to school. In November, Barrera Mayén was killed after taking leave to spend time at home with his family.

The police investigated a number of the killings since 2014 and found members of the major gangs responsible.

“They have more control than we do. When we go home, we’re in neighborhoods where there’s one police to 100 gang members. We’re easy victims,” said one officer in the country’s anti-gang unit, who, after being threatened by MS-13 in his home, is awaiting refugee status from the United Nations. He spoke on the condition of anonymity out of fear for his safety.

An MS-13 member killed a man on a New York subway platform. The gang dates back to the 1970s.

Police arrested a 26-year-old man, who they said is an MS-13 member, after he fatally shot an alleged rival gang member Feb. 3 in Queens. (Allie Caren/The Washington Post)

Complicating their response to the threats, Salvadoran police are also not legally allowed to take their weapons home with them.

“I bring it home anyway. I sleep with it on my waist,” said a female officer, who is awaiting refugee status from the United Nations and spoke on the condition of anonymity out of fear for her safety. “My husband and I take turns sleeping. We know they are going to come for us.”

Many units in the Salvadoran police are forbidden to wear balaclavas to conceal their identities. In anti-gang units, officers are allowed to wear such masks during operations, but they are frequently asked to testify in court, where they must show their faces and identify themselves by name while gang members look on.

In 2017, El Salvador’s attorney general, Douglas Meléndez, urged the government to do more to protect off-duty police, asking the parliament to pass a “protection law” for police and soldiers that would also provide funding to protect their families. The law was never passed.

Last month, security concerns played a central role in a presidential election won by San Salvador’s 37-year-old former mayor, Nayib Bukele. At least 285 people were killed in January, leading up to the vote, which many saw as the gangs’ attempt to leverage their influence amid the election campaign. In a security plan leaked to the Salvadoran news media, Bukele’s campaign wrote: “The expansion of these criminal groups is undeniable, as is the impact on the lives of ordinary citizens.”

In response to the targeting of police officers this year, El Salvador’s police chief introduced a policy: For their own protection, officers were not allowed to return to their homes. The police chief declined multiple interview requests.


Suspects are detained by police in a neighborhood in San Salvador dominated by MS-13. (Marvin Recinos/AFP/Getty Images)

Many officers, feeling unprotected by their own force, have said their only option is to leave the country.

Organizations that work with the United Nations to resettle Salvadoran refugees in the United States say they have found more and more police officers arriving unannounced at their offices. In addition to the 21 asylum seekers and refugees identified by The Post, several others have recently arrived in Spain and Mexico, according to news reports, applying for humanitarian visas or other forms of protection. Lawyers for police officers and many officers themselves say that far more officers are preparing to flee.

One of the cases that Buendía, the migration director of Cáritas, referred to the United Nations High Commissioner for Refugees is an officer who survived two attacks while off duty. First, he was shot eight times by suspected gang members; then, two years later, he was shot four times. The officer pleaded for protection from his commander.

Buendía included a letter from the commander in the officer’s refugee application. “There’s nothing we can do for you,” the commander wrote. “You need to protect yourself.”

A police spokesman declined to comment on the letter.

In one case, concerning a police officer now applying for asylum in U.S. immigration courts, gang members threatened to kidnap the officer’s child at an elementary school in rural El Salvador.

“That’s not what these guys signed up for. It’s one thing to be shot at on the job. It’s another for your family to be targeted while you’re off duty,” said Emily Smith, the attorney representing the officer.

Lawyers such as Smith who are representing the officers typically try to explain to immigration judges that as former police officers, their clients would be persecuted if they were forced to return to El Salvador. But the attorneys are also aware of how narrowly U.S. asylum law can be applied, and that the courts are unlikely to grant asylum to all former officers.

“What we chose to do is focus on the specific threats facing our client,” said Patrick Courtney, who last year represented a Salvadoran officer who had been physically assaulted in his home before fleeing. “We focused on his anti-gang views, on the fact that the threats were directed at him individually.”

Courtney’s client was granted asylum late last year. They discussed where he would live in the United States, and what he would do next. The former officer had only one goal: He wanted to join the United States military.

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

Former policemen have been recognized by BIA precedent as a “particular social group” for asylum for many years. Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). However, in their rush to deny asylum to Central Americans, particularly under  this xenophobic Administration, some U.S. immigration Judges and BIA panels simply choose to ignore precedent or to manufacture other reasons to deny asylum.

Granting asylum to endangered former police officers clearly is appropriate; but, granting it to the women targeted because of their gender whom those police cannot protect is equally required. Nevertheless, Sessions simply “streamrolled” the asylum law in Matter of A-B-.

While some U.S. Immigration Judges have recognized that even A-B-, properly read without regard to its pernicious dicta, leaves plenty of room for protecting refugee women who have suffered or fear domestic violence, others, and a number of BIA “panels” have jumped on the “Sessions deportation express.” I wouldn’t count on new AG Bill Barr to restore justice to this system, particularly since he has retained some of Sessions’s worst and most unqualified henchmen on his staff.

That’s why we need a legitimate, independent Immigration Court system not beholden to prejudiced “enforcement only” officials in the DOJ and the Executive Branch. It’s also time for a better and wiser Congress to specifically write gender into the asylum law to guard against this and future scofflaw Administrations who seek to inflict cruelty and injustice on some of the most vulnerable and deserving among us.

PWS

03-04-19

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. THE HUMAN AGONY OF ASYLUM: SPEND 4 MIN. WITH MS. A-B- & HUMAN/WOMEN’S RIGHTS EXPERT PROFESSOR KAREN MUSALO — Beaten, Raped, & Threatened With Death By Her Husband, Hounded Throughout Her Country, Abandoned By El Salvadoran Authorities, She Sought Refuge In The U.S., Winning Her Case At The BIA — Then She Was Targeted For A Vicious Unprovoked Attack By Notorious Scofflaw Immigration Judge Stuart Couch & White Nationalist Xenophobe Jeff Sessions — She’s Still Fighting For Her Life!
  4. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

SYSTEMIC FAILURE: 9TH Circuit’s Most Recent Reversal Of BIA Demonstrates Disturbing Lack Of Basic Judicial Competence At All Levels Of EOIR – But, Even The 9th’s Rebuke Misses The Real Point – There Can Be No Due Process In Complex Cases Of This Type Without Legal Representation! – Arrey v. Barr

Arrey v Barr — 9th — Firm Resettlement

Arrey v. Barr, 9th Cir., 02-16-19, Published

SUMMARY BY COURT STAFF:

The panel granted in part a petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Cameroon, and remanded.

The panel rejected petitioner’s contention that she was deprived of her due process right to a full and fair hearing based on the denial of her right to retained counsel and an unbiased fact finder. The panel held that the IJ in this case provided petitioner reasonable time to locate an attorney, where the IJ provided several continuances so she could do so, warned her repeatedly that he would not grant further continuances, and attempted to call her attorney when he failed to appear on the day of her merits hearing. The panel also held that although the IJ was rude and harsh with petitioner, petitioner failed to establish that the IJ’s conduct prejudiced her, where the IJ held a complete hearing and made a thorough decision that fully examined the underlying factual matters, and any potential prejudice caused by the IJ’s questionable adverse credibility determination was cured by the Board’s subsequent decision assuming the credibility of petitioner’s testimony in full.

The panel held that the Board committed three legal errors in its application of the firm resettlement bar, which precludes asylum relief if an applicant was firmly resettled in another country prior to arriving in the United States. First, the panel held that the Board erred by failing to consider whether the conditions of petitioner’s offer of resettlement in South Africa were too restricted for her to be firmly resettled. Second, the panel held that the Board erred by applying the firm resettlement rule not as a mandatory bar to petitioner’s asylum claim, but instead as a limitation on the evidence the Board considered in support of her claim for relief from removal to Cameroon, thus causing the Board to improperly ignore evidence of the abuse petitioner suffered in Cameroon before fleeing to South Africa, as well as evidence of the nature of her relationship with her abuser. Third, the panel held that the Board erred by applying the firm resettlement bar to petitioner’s withholding of removal claim, which is not subject to the firm resettlement bar.

Turning to petitioner’s CAT claim, the panel held that substantial evidence did not support the Board’s determination that petitioner could avoid future harm through internal relocation in Cameroon.

The panel remanded petitioner’s asylum, withholding, and CAT claims for further proceedings consistent with its opinion.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

 

PANEL: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block,* District Judge.

* The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation.

OPINION BY:  Judge Gould

KEY QUOTE:

Petitioner Delphine Arrey petitions for review of the Board of Immigration Appeals’ (“BIA” or “Board”) decision dismissing her appeal of an immigration judge’s (“IJ”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We conclude that the IJ did not deny Arrey her due process rights to counsel and an unbiased factfinder. As to Arrey’s asylum and withholding of removal claims, we conclude that the Board erred as a matter of law in its analysis and application of the “firm resettlement” rule. As to Arrey’s claim for relief under CAT, we conclude that substantial evidence does not support the Board’s determination that Arrey could safely relocate in another area of Cameroon. We grant the petition in part and remand for reconsideration of Arrey’s claims consistent with our opinion.

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

Even the 9th Circuit “blew” the fundamental issue here: No matter how annoying the respondent’s conduct might have been, there was no way to conduct a fair hearing in a case of this complexity without counsel present.  

From this recitation of facts, it’s pretty obvious that the respondent had no idea what “firm resettlement” was or how the process for proving or disproving it worked. Going ahead with the hearing created a miscarriage of justice that simply wasted time by going all the way the 9th Circuit and then being returned for competent judicial adjudication applying the correct standards. Haste makes waste.

And the overwhelming backlog that obviously was on the judge’s mind here was not created by this respondent and her attorney; no, it primarily results from “aimless docket reshuffling,” poor administration, Congressional neglect, and “designed to fail policies” by politicos in the DOJ (under the improper and unethical political influence of the DHS) which went into “overdrive” under Sessions.

Getting to the merits, beyond apparently correctly setting forth the respondent’s name and “A number,” the Immigration Judge and the BIA got largely everything else in this case wrong! The basic errors range from a “clearly erroneous” adverse credibility ruling, to a legally incorrect standard for “firm resettlement,” to an idiotically nonsensical ruling that “threats and one attempted assault of rape” did not “rise to the level of persecution” (cases involving these facts were routinely granted by the BIA during my tenure and, to my knowledge, were uniformly granted by IJs in Arlington; indeed, I can’t even imagine an ICE Assistant Chief Counsel during my tenure in Arlington arguing the contrary), to wrong evidentiary determinations, to another completely nonsensical finding on internal relocation.

In other words, this was a “rubber stamp” by BIA “judges” of a staff attorney’s writeup with canned “any reason to deny” language. It was not a fair and impartial adjudication by an “expert” group of appellate judges.

Far from it. If a student had turned this in as an exam answer to a hypothetical case on my Georgetown Law final exam, it would have received “zero credit.” So, how is it “OK” to have a system where individuals in what are supposed to be senior judicial positions, requiring great expertise in immigration, asylum, and human rights law, perform in a manner that would have been deemed unacceptable for L2s and L3s?

It isn’t; and it’s up to the Article III Courts and Congress to get some backbone and some integrity and put an end to this travesty. Yeah, this is “only one case.” But, it involves a human life. Cameroon is a horrible country; credible Cameroonian asylum cases were routinely granted in the Arlington Immigration Court, normally without appeal by ICE.

And for every case where a respondent is lucky enough to get a “Court of Appeals intervention,” dozens of individuals, many without lawyers or the faintest knowledge of what’s happening, are “railroaded” through this fundamentally unfair and constitutionally defective system. This, rather than the bogus wall, or an influx of desperate refugee families seeking asylum, is our true “national emergency” involving immigration: The disdain by our current Administration for the rule of law, human rights, judicial quality, simple human decency, and Due Process of Law under our Constitution! 

Congrats to Attorney Ron Richey, an “Arlington Immigration Court regular,” who appeared before me many times, for fighting for due process and justice in another jurisdiction. You are an inspiration to all of us in the “New Due Process Army!”

PWS

03-01-19

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. GONZO’S WORLD: RECENT ARTICLES SHOW HOW SESSIONS’S SHOCKINGLY INAPPROPRIATE REMARKS TO NEW IMMIGRATION JUDGES VIOLATED EOIR CODE OF JUDICIAL ETHICS, SHOWED DISRESPECT FOR THE LAW, AND VIOLATED THE FUNDAMENTAL RULES OF GOOD IMMIGRATION JUDGING BY DIRECTING JUDGES NOT TO BE SYMPATHETIC TO REFUGEES! – TURNING REFUGEE LAW AND HISTORY ON ITS HEAD!

JUSTICE DENIED: U.S. Immigration Judge @ Stewart Detention “Court” (“Where Asylum Cases Go To Die”) Denies “Slam Dunk” Asylum Bid To Unrepresented Refugee From DRC, Threatening Him & Family With Death! — System That Once Promised To “Guarantee Fairness and Due Process for All” Is Now A Bastion Of Injustice!

https://www.sandiegouniontribune.com/news/immigration/sd-me-separated-father-20190227-story.htm

Kate Morrissey writes in the San Diego Union-Tribune:

Constantin Bakala and his family have survived kidnapping, torture, rape, poison and a shipwreck.

Now, faced with the complexities of the U.S. immigration system, they may be on the verge of defeat.

Bakala, 48, and his family fled their home in the Democratic Republic of Congo in late 2016 after they were targeted for Bakala’s participation in an opposition party that promoted democracy in the country, according to his wife.

After traveling through more than 10 countries, the family arrived at the San Ysidro Port of Entry in November 2017. Bakala was separated from his wife and seven children and sent to an immigration detention center in Georgia while they were released to live in the San Diego area, a common practice at the time. He hasn’t seen them since.

Because they were separated physically, their cases were also handled separately in immigration court. Since the federal government prioritizes detained cases, Bakala’s finished before the family’s even began, according to their attorney.

Unable to find an attorney to represent him at the detention center in rural Georgia and with little money to even pay for phone calls to the outside world to try to get help, Bakala faced by himself an immigration court known for being tough on asylum seekers. Judge Michael Baird, who heard his case, granted 11 of the 152 asylum cases that he decided between fiscal 2013 and 2018, records show.

Bakala lost.

He tried to appeal the case by himself and was denied that as well, according to court records. Now the family, with the help of a San Diego church, has found an attorney to help him, but it may be too late.

He is convinced that if he returns to the Democratic Republic of Congo, he will be murdered by his own government.

Bakala’s party membership card shows he was part of the Rassemblement des Congolais Démocrates et Nationalistes, or RCDN, which opposed former president Joseph Kabila’s maneuvers to stay in power past his term limit. When Bakala wasn’t at his job at the Ministry of Health, he worked with the party’s youth and advised them on how to demonstrate peacefully against the ruling party, his wife Annie Bwetu Kapongo said.

Bwetu Kapongo tells their story slowly, haltingly, sometimes with painful detail and sometimes in circles, a symptom of the trauma she carries from what happened.

She remembers when her husband first told her about getting threatened, and she remembers the day he went missing in 2016.

When she went to the police to ask for help finding him, she was locked in a room that reeked of urine. Later, three policemen came in, beat her and raped her. She tried to stop them and pointed out that she was pregnant.

The men didn’t care, she said. She ended up losing the baby.

When she was eventually able to return home, her husband was still missing. The two stores she owned, one that sold fish and one that sold cakes and juice, were broken into and robbed by people looking for her husband, who had by this point escaped where he had been imprisoned and tortured, according to his attorney.

One night, Bwetu Kapongo woke up to the family dog’s aggressive barking before hearing it abruptly stop. They found the dog dead the next day.

Another night, she and the children got sick. Their heads were spinning, and they were vomiting. Eventually, they found a tool someone had used to release poison into the house, she said.

Finally, one night she heard a knock on her window. It was her husband.

Aided by people he’d brought to help the family, they scooped the children out of their beds while they were sleeping and fled in a boat down a river to the Republic of Congo, where the people helping them paid for their hotel, Bwetu Kapongo said.

They waited a couple of months there until they had travel documents to get to Brazil and left in early 2017 to begin a grueling journey to the U.S. border.

“We came because America respects the law, and they know how to protect people,” Bwetu Kapongo said through a translator.

In each of the countries they passed through, officials told them that they could not stay, she added. They were sent from Panama back to Colombia when they tried to get across the border by boat and ended up having to make the grueling 6- to 7-day walk through the jungle to Costa Rica.

In Costa Rica, they found a boat that would take them to Nicaragua.

After they’d been on it for about 45 minutes, Bwetu Kapongo heard shots fired at them. She told her children to lay down. Then, the boat broke, she said, and it began to sink.All of a sudden, her youngest child Joseph, who is now 5, was no longer in her arms.

She started to drown.

“Is this a nightmare? Is this real? Is this happening?” she recalled asking the darkness that surrounded her.

She felt other bodies in the water, hands pushing her head down as they tried desperately to reach the surface. She felt someone clutch her neck. It was David, her 12-year-old son.

When a rescue boat pulled her to safety, she found her 17-year-old daughter Marie Louise. Bwetu Kapongo began to pray, crying out the names of her five other children and asking God to find them. Her husband was soon rescued from the water and prayed with her.

When rescuers noticed bubbles moving in the water, they found Joseph along with 8-year-old Moses and 10-year-old Augustine clinging to a rope and pulled them to safety.

Emmanuel, her 15-year-old son, had been carried further away into the water with 14-year-old Daniel. They found a life preserver that had been thrown into the water and clung to it, bringing with them two girls from another family who were also nearly drowning.

When Emmanuel used the last of his strength to cry out, rescuers found them, Bwetu Kapongo said. Two people who had been on the boat died, one adult and one child.

Though the family survived, all of the documents and photos that could have been used as evidence were lost in the water.

They would have to journey by boat two more times between Costa Rica and Nicaragua before successfully making it the rest of the way up to the U.S. border.

Bwetu Kapongo said she expected to receive “protection and respect” when they arrived. Instead, her husband was quickly taken away.

It is only when she reaches this point in the story that she begins to cry.

She wouldn’t hear from him for about a month. He told her that he didn’t know how to find her, that it took that long for officials to give him information about where she was.

The family’s attorney Julie Hartlé said the family’s story is “horrific but not unusual.” Other attorneys she knows have had similar cases.

“This family meets every criteria. They were persecuted for being democracy activists, kidnapped and tortured by their own government,” Hartlé said. “It meets the exact definition of asylum for political persecution. It should’ve been straightforward. They were able to use the detention system against them.”

Bakala had to fill out his asylum application in English, a language he does not speak well. Though he told the judge verbally about three times he was taken by police, how he was beaten, interrogated and held without food, he only put information about one of the incidents in his application.

“That sounds like a pretty bad event,” the judge said in his ruling of one of the incidents Bakala described. “Unfortunately, it is never mentioned anywhere in the respondent’s application for asylum.”

The evidence that Bakala was able to gather and present — including a notice from his political party about his disappearance, another notice that the ruling party was looking for him, his voter ID card and party membership card — was not translated into English, so the judge said he couldn’t consider it, according to court records. He found Bakala’s story not credible.

The Executive Office for Immigration Review said it does not comment on judges’ decisions.

Neither Immigration and Customs Enforcement nor Customs and Border Protection were able to respond to request for comment in time for publication.

As immigration officials prepared to deport Bakala, attorneys filed emergency motions to temporarily keep him in the U.S. to try to reopen his case with new evidence. Last week, the 11th Circuit granted him a stay until Friday.

In the meantime, members of the church helping the family here in San Diego are planning a protest outside of the federal building at noon on Thursday in support of Bakala.

Bwetu Kapongo said the most important thing for her is protection for her children.

“He sacrificed his life to protect his kids,” she said in French. “If we hadn’t done what we did, they would already be dead.”

Beyond that, she wishes for her husband’s return. She tries to hide her exhaustion and her tears from her children, but she doesn’t think she can raise them alone.

“After the mountain I went through, I’ve got no more strength,” she said.

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

So, how might a real judge, one committed to guaranteeing fundamental fairness, due process, and properly applying the generous dictates of U.S. asylum law have approached this case?

First, Bakala comes from a country, the Democratic Republic of Congo (“DRC”) which is one of the most repressive regimes in the world, where persecution is rampant. For example, the DRC received a score of 17 on a scale of 100 in the latest Freedom House freedom rankings.

Here’s a quote from the most recent U.S. State Department Country Report summarizing the daily horrors of life in the DRC:

The most significant human rights issues included: unlawful killings; disappearances and abductions; torture and other cruel, inhuman, and degrading treatment and punishment, including sexual and gender-based violence (SGBV) and rape; life-threatening conditions in prisons and detention facilities; arbitrary arrests and prolonged detention; denial of fair public trial; arbitrary interference with privacy, family, and home; restrictions on freedoms of speech and the press, assembly, and association; abuse of internally displaced persons (IDPs); inability of citizens to change their government through democratic means; harassment of civil society, opposition, and religious leaders; corruption and a lack of transparency at all levels of government; violence and stigmatization against women, children, persons with disabilities, ethnic minorities, indigenous persons, lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, and persons with albinism, with little government action to investigate, prosecute, or hold perpetrators accountable; trafficking in persons, including forced labor, including by children; and violations of worker rights.

Authorities often took no steps to investigate, prosecute, or punish officials who committed abuses, whether in the security forces or elsewhere in the government, and impunity for human rights abuses was a problem.

Therefore, knowing that Bakala comes from a notorious “refugee producing country,” the Immigration Judge should have insisted as a matter of due process and fundamental fairness that the case be continued until the respondent could get the assistance of a competent lawyer to fully and fairly present a case for saving his life.

Asylum law has been made intentionally and unnecessarily complicated by a politicized system run with a strong enforcement bias; statistics, as well as experience, show that unrepresented individuals have virtually no realistic chance of success, particularly in a system run by an Administration clearly prejudiced against them. Human lives become mere “case completions.”

Second, Bakala’s wife also appears to have a strong asylum claim in her own right.  If granted, he could also have been protected as a derivative asylee under his wife’s application. Therefore, unless ICE were basically willing to stipulate to an asylum grant, proceeding with the cases separately was presumptively unfair. A judge committed to fairness, would have “pushed” the ICE Counsel on why this family’s cases were not being heard together.

Third, to justify an adverse credibility finding under the statute and BIA precedents, the judge’s ruling must demonstrate significant discrepancies or omissions, provide cogent reasoning, and carefully consider and give reasons for not accepting the respondent’s explanations for any problems. This judge’s ruling appears to have “flunked” all of those tests. The idea that a detained unrepresented individual’s omission of an event from the asylum application is a cogent basis for finding him not credible is facially absurd. That’s particularly true where the respondent is not a native English speaker and is held in detention where his ability to prepare, or, indeed, to even understand what is required for a successful asylum application, is intentionally impaired.

Moreover, a simple reference to the most current State Department Country Report (quoted above) would have shown the judge that the respondent’s testimony was highly plausible in light of known country conditions.  Indeed, persecution, torture, and abuse are daily occurrences in the DRC.

Additionally, the judge violated due process by requiring a detained individual to get translations of key corroborating documents. It’s simply not possible in most cases. How is a detained unrepresented individual going to find a qualified foreign language translator in the Stewart prison? A judge doing his job fairly would have asked the respondent to summarize the documents and accepted a “proffer;” or he could have had the documents read into the record by the interpreter.

For the purpose of a detained adjudication, I would have assumed that the documents were what the respondent said they were and acted accordingly. If the DHS wanted to challenge the decision, they could have the documents translated.  Just one of many problems in purporting to conduct “due process hearings:” in place where due process often can’t really be achieved.

Then, the “rubber stamp” BIA (a/k/a the “Falls Church Adjudication Center”) also “tanked” by not applying its own precedents which should have resulted in a finding that the Immigration Judge’s specious reasoning was “clearly erroneous.”

I heard a number of asylum cases from the DRC during my time on the bench in Arlington. I doubt that I denied any except for individuals who were aggravated felons, engaged in persecution of others, or had provided material support to a terrorist organization. Even those who failed to establish asylum eligibility often had valid claims for protection under the Convention Against Torture, given the prevalence of government sponsored or endorsed torture in the DRC. Most DRC asylum cases in Arlington were well-represented, well-documented, and either largely unopposed or not appealed by ICE.

Even without a lawyer, it appears that Bakala’s testimony was credible under the circumstances and that he suffered harm that should have warranted a grant of asylum on account of political opinion based on known country conditions. At one time in Arlington, a case like this with representation probably could have been granted largely by stipulation, with brief testimony, on a “short docket.”

That’s how cases can “move” on the Immigration Court’s crowded dockets without compromising due process or fundamental fairness. Instead, this Administration encourages a biased “haste makes waste” approach, issues statements of strong prejudgment against asylum seekers and their attorneys, motivates judges to cut corners, and enables judges to look for “any reason” to deny asylum and crank out final orders of removal. It’s a “cavalcade of worst practices!”

While some judges courageously resist and insist on “doing the right thing,” others choose or feel compelled to “go along to get along” with the Administration’s unethical (and incompetent) administration of these so-called “courts.” Indeed, today’s Immigration Judges are not even properly trained on how to correctly adjudicate and grant asylum under the generous standards mandated by the law, the Supreme Court, and even the BIA’s (seldom followed) precedent supposedly implementing generous standards following the Supreme Court’s admonishment. It’s an exercise in extreme intellectual dishonesty.

Allowing serious, “life or death” cases to be tried in places like Stewart, notorious for being the home of unsympathetic judges and an inherently coercive atmosphere, intentionally located in and out-of-the-way place where it is hard for attorneys to participate, is a stain on America.

The DOJ has abandoned any semblance of running its “wholly owned courts” in a fair and constitutional manner. Congress, ultimately responsible for creating and countenancing this mess, has long abdicated its duty to establish an independent system that complies with Due Process.

Article III Judges also have been largely complicit in allowing this pathetic imitation of a “court” system to continue operating in a fundamentally unfair and unreasonable manner and spewing forth skewed, unjust, often unlawful, and sometimes deadly results. It’s a national disgrace!

Sadly, the individuals being abused by the Immigration Court system are some of the weakest and most vulnerable among us. That’s what allows such systematic injustice to operate “largely below the radar screen.” However, the individuals who are participating in and enabling such outrageous contempt for the rule of law and human dignity, and thereby violating their oaths of Federal office, will not escape the judgment of history.

Fixing this unfair and intentionally broken system is well within our power as a country. It could be done for much less than $5.7 billion. Put an end to the “New American Gulag” and  the “theater of the absurd” masquerading as a “court” that operates within its bowels!

PWS

03-01-19

 

Related posts:

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  2. GONZO’S WORLD: RECENT ARTICLES SHOW HOW SESSIONS’S SHOCKINGLY INAPPROPRIATE REMARKS TO NEW IMMIGRATION JUDGES VIOLATED EOIR CODE OF JUDICIAL ETHICS, SHOWED DISRESPECT FOR THE LAW, AND VIOLATED THE FUNDAMENTAL RULES OF GOOD IMMIGRATION JUDGING BY DIRECTING JUDGES NOT TO BE SYMPATHETIC TO REFUGEES! – TURNING REFUGEE LAW AND HISTORY ON ITS HEAD!
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. NY TIMES: Trump Mocks & Dehumanizes Vulnerable Refugees & His Administration Claims It’s OK To Return Them to Honduras; BUT The Facts Say The Opposite: Honduras Is An Armed Conflict Zone Where Gangs Exercise Quasi-Governmental Control & Those Who Resist Are Severely Punished, Often Maimed, Tortured Or Killed!

MARIA SACCHETTI @ WASHPOST: Substantial Majority Of Those Migrants Detained in Trump’s “New American Gulag” Have No Criminal Record!

tohhttps://www.washingtonpost.com/national/when-trump-declared-national-emergency-most-detained-immigrants-were-not-criminals/2019/02/22/a332480e-36ad-11e9-a400-e481bf264fdc_story.html

Maria writes:

Before President Trump declared a national emergency on the U.S. southern border on Feb. 15, he cited concerns that the United States was being flooded with murderers, kidnappers and other violent offenders from foreign countries.

According to new U.S. Immigration and Customs Enforcement figures obtained by The Washington Post, the nation’s immigration jails were not filled with such criminals. As of Feb. 9, days before the president’s declaration, nearly 63 percent of the detainees in ICE jails had not been convicted of any crime.

Of the 48,793 immigrants jailed on Feb. 9, the ICE data shows, 18,124 had criminal records. An additional 5,715 people had pending criminal charges, officials said, but they did not provide details. ICE also did not break down the severity of the crimes committed by or attributed to detainees.

“It proves this is a fake emergency,” said Kevin Appleby, policy director at the Center for Migration Studies, a New York-based nonpartisan immigration think tank. “It really shows that what the president’s doing is abusing his power based on false information.”

. . . .

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

Read Maria’s complete article at the above link.

We know that most of the migrants held in the “New American Gulag” (“NAG”) are neither security threats nor realistic dangers to our communities. From my experience many of those held because they are “criminals” have either relatively minor offenses (e.g., driving without a license) or even if the offenses were more serious have long ago completed criminal sentences and have been free in society without recurring problems.

So, why are the “non-criminals” being held in the NAG? Well, DHS would say it’s because they are threats to “abscond” before hearings, citing highly questionable “self-fulfilling” numbers opaquely generated by EOIR and DHS. But outside studies of DHS and EOIR statistics have shown a much different picture.

Individuals with lawyers and applications filed, particularly for asylum, who have the system and their obligations thereunder carefully explained to them in their own language, show up almost all the time for Immigration Court.

Likewise, migrants released on moderate bonds (in the $1.5 to $5K range — much lower than the current “national average”) also appear with regularity, as do those with ankle monitors and other “alternatives to detention.”

Thus, a reasonable Administration genuinely interested in the integrity of the Immigration Court process would severely curtail the use of civil immigration detention, particularly by private entities, which is both wastefully expensive and inhumane.

Instead, they would rely on a proven combination of lower-cost, more humane, and due process promoting alternatives:  getting applicants matched with lawyers, pro bono, low bono, or paid; encouraging individuals to locate in communities where lawyers, family resources, and NGOs are available; and using reasonable bonds, ankle monitors and other types of “call in monitoring” to help insure appearance at further hearings.

An improved Immigration Court system where all judges were uniformly fair, impartial, and courteous to applicants and their lawyers, and where asylum was granted more generously in accordance with the standards set forth in the Refugee Act of 1980, the Supreme Court’s decision in INS v. Cardoza-Fonseca, the BIA’s precedent in Matter of Mogharrabi, and the regulations establishing a strong presumption of future persecution for those who have been persecuted in the past would also help.

Hope tends to draw people. Hostility and bias understandably tend to repel them. As long as we have a U.S. Immigration Court that tolerates, and even aids, abets, and encourages, some biased, anti-asylum, unprofessional judges in the “Jeff Sessions mode” who deny asylum at rates exceeding 90%, it will lack credibility.

Without credibility and a demonstrable commitment to fairness, impartiality, and due process above the DHS’s and the Administration’s often questionable and other times downright bogus “enforcement priorities,” the system will continue to fail our country, inflict unjustifiable harm and suffering on the most vulnerable among us, and indirectly harm every one of us who believes in Constitutional Government and a firm commitment to respecting human rights. Critical examination of the Government’s positions against a rigorous standard of legality, reasonableness, and fundamenal fairness under the Due Process Clause of the Fifth Amendment to our Constitution is essential to an independent judiciary. It isn’t happening in today’s “captive” Immigration Courts. That’s a national disgrace that must be fixed.

PWS

02-23-19

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COURTING DISASTER: NEW AILA REPORT SHREDS DOJ’S “BUILT TO FAIL” IMMIGRATION COURT BACKLOG REDUCTION PROGRAM — “Malicious Incompetence” Turns Tragedy To Travesty! — McKinney, Lynch, Creighton, & Schmidt Do Press Conference Exposing Injustice, Waste, Abuse — Listen To Audio Here!

OUR TEAM:

Jeremy McKinney, Attorney, Greensboro, NC, AILA National Treasurer

Laura Lynch, Senior Policy Counsel, AILA,

Emily Creighton, Deputy Legal Director, American Immigration Council

Paul Wickham Schmidt, Retired U.S. Immigration Judge

Read the AILA Report (with original formatting) at the link below:

19021900

FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog February 21, 2019
Contact: Laura Lynch (llynch@aila.org) 1
On December 19, 2018, AILA and the American Immigration Council obtained a partially redacted memorandum through the Freedom of Information Act (FOIA), entitled the Executive Office for Immigration Review’s (EOIR) Strategic Caseload Reduction Plan (hereinafter “EOIR’s plan”). EOIR’s plan, which was approved by the Deputy Attorney General for the Department of Justice (DOJ) on October 31, 2017,2 states that the overarching goal was “to significantly reduce the case backlog by 2020.” 3 In the following months, DOJ and EOIR implemented the plan by rolling out several policy initiatives, including multiple precedent-setting opinions issued by then-Attorney General (AG) Jeff Sessions.
Contrary to EOIR’s stated goals, the administration’s policies have contributed to an increase in the court backlog which exceeded 820,000 cases at the end of 2018.4 This constitutes a 25 percent increase in the backlog since the introduction of EOIR’s plan.5 For example, the October 2017 memorandum reveals that EOIR warned DOJ that the Department of Homeland Security’s (DHS) potential activation of almost 350,000 low priority cases or cases that were not ready to be adjudicated could balloon the backlog.6 Nonetheless, then-AG Sessions ignored these concerns and issued a decision that essentially stripped immigration judges (IJs) of their ability to administratively close cases and compelled IJs to reopen previously closed cases at Immigrations Customs Enforcement’s (ICE) request.7
The policies EOIR implemented as part of this backlog reduction plan have severely undermined the due process and integrity of the immigration court system. EOIR has placed enormous pressure on IJs by setting strict case quotas on and restricting their ability to manage their dockets more efficiently. This approach treats the complex process of judging like an assembly line and makes it more likely that judges will not give asylum seekers and others appearing before the courts enough time to gather evidence to support their claims. People appearing before the courts will also have less time to find legal counsel, which has been shown to be a critical, if not the single most important factor, in determining whether an asylum seeker is able to prove eligibility for legal protection.
The foundational purpose of any court system must be to ensure its decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. Efforts to improve efficiency are also important but cannot be implemented at the expense of these fundamental principles. EOIR’s plan has not only failed to reduce the backlog but has eroded the court’s ability to ensure due process. Furthermore, EOIR’s plan demonstrates the enormous power DOJ exerts over the immigration court system. Until Congress creates an immigration court that is separate and independent from DOJ, those appearing before the court will be confronted with a flawed system that is severely compromised in its ability to ensure fair and consistent adjudications.
I. Background on EOIR’s Inherently Flawed Structure
The U.S. immigration court system suffers from profound structural problems that have severely eroded both its capacity to deliver just and fair decisions in a timely manner and public confidence in the system
AILA Doc. No. 19021900. (Posted 2/21/19)

itself.8 Unlike other judicial bodies, the immigration courts lack independence from the Executive Branch. The immigration courts are administered by EOIR, which is housed within DOJ – the same agency that prosecutes immigration cases at the federal level. This inherent conflict of interest is made worse by the fact that IJs are not classified as judges but as government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the AG, the chief prosecutor in immigration cases. The current administration has taken advantage of the court’s structural flaws, introducing numerous policies — including EOIR’s plan — that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.
II. Policies Identified in EOIR’s Plan
Administrative Closure
Stated Policy Goal: To reduce the case backlog and maximize docket efficiency, EOIR’s plan called for the strengthening of EOIR and DHS interagency cooperation.9 EOIR’s plan advised DOJ that “any burst of case initiation by a DHS component could seriously compromise EOIR’s ability to address its caseload and greatly exacerbate the current state of the backlog.”10
Reality: Despite EOIR’s warning, then-AG Sessions issued a precedent decision in Matter of Castro Tum,11 which contributed to a rise in the case backlog. This decision severely restricts a judge’s ability to schedule and prioritize their cases, otherwise known as “administrative closure” and even compels IJs to reopen previously closed cases at ICE’s request.12
Administrative closure is a procedural tool that IJs and the BIA use to temporarily halt removal proceedings by transferring a case from active to inactive status on a court’s docket. This tool is particularly useful in situations where IJs cannot complete the case until action is taken by USCIS or another DHS component, state courts and other authorities. Prior to the issuance of Matter of Castro Tum, numerous organizations, including the judges themselves, warned DOJ that stripping IJs of the ability to utilize this docket management tool “will result in an enormous increase in our already massive backlog of cases.”13 In fact, an EOIR-commissioned report identified administrative closure as a helpful tool to control the caseload and recommended that EOIR work with DHS to implement a policy to administratively close cases awaiting adjudication in other agencies or courts.14
Nonetheless, the former AG issued Matter of Castro Tum15 sharply curtailing IJs’ ability to administratively close cases. The decision even called for cases that were previously administratively closed cases to be put back on the active immigration court dockets.16 In August 2018, ICE directed its attorneys to file motions to recalendar “all cases that were previously administratively closed…” with limited exceptions—potentially adding a total of 355,835 cases immediately onto the immigration court docket.17 Three months later, ICE had already moved to recalendar 8,000 cases that had previously been administratively closed, contributing to the bloated immigration court case backlog.18 In response, members of Congress sent a letter to DOJ and DHS outlining their concerns about ICE’s plans to recalendar potentially hundreds of thousands of administratively closed cases, further clogging the system and delaying and denying justice to the individuals within it.19
Quotas and Deadlines
Stated Policy Goal: To expedite adjudications, EOIR’s plan calls for the development of caseload
management goals and benchmarks.20
Reality: EOIR imposed unprecedented case completion quotas and deadlines on IJs, that pressure judges to complete cases rapidly at the expense of balanced, well-reasoned judgment.21
2
AILA Doc. No. 19021900. (Posted 2/21/19)

At the time EOIR’s plan was issued, EOIR’s collective bargaining agreement with the National Association of Immigration Judges (NAIJ) prohibited “the use of any type of performance metrics in evaluating an IJ’s performance.”22 Despite opposition from NAIJ,23 DOJ and EOIR imposed case completion quotas and time-based deadlines on IJs, tying their individual performance reviews to the number of cases they complete.24 Among other requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.25 Disturbingly, DOJ unveiled new software, resembling a “speedometer on a car” employed to track the completion of IJs’ cases.26
Sample Image of “IJ Performance Data Dashboard”
(Source: Vice News)27
AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the NAIJ as a “death knell for judicial independence.”28 The purported argument for these policies is that it will speed the process up for the judges. However, applying this kind of blunt instrument will compel judges to rush through decisions and may compromise a respondent’s right to due process and a fair hearing. Given that most respondents do not speak English as their primary language, a strict time frame for completion of cases interferes with a judge’s ability to assure that a person’s right to examine and present evidence is respected.29
These policies also impact asylum seekers, who may need more time to gather evidence that is hard to obtain from their countries of origin, as well as unrepresented individuals, who may need more time to obtain an attorney. The Association of Pro Bono Counsel explained that the imposition of case completion quotas and deadlines “will inevitably reduce our ability to provide pro bono representation to immigrants in need of counsel.”30 Unrepresented people often face hurdles in court that can cause case delays, and scholars have concluded that immigrants with attorneys fare better at every stage of the court process.31 Furthermore, these policies compel IJs to rush through decisions may result in errors which will lead to an increase in appeals and federal litigation, further slowing down the process.
Continuances
Stated Policy Goal: To “streamline current immigration proceedings”32 and “process cases more
efficiently,”33 EOIR’s plan called for changes in the use of continuances in immigration court.34
Reality: The restrictions DOJ and EOIR placed on the use of continuances make it far more difficult for immigrants to obtain counsel and interfere with judges’ ability to use their own discretion in each case.
EOIR and DOJ introduced policies that pressure judges to deny more continuances at the expense of due process. In July 2017, the Chief IJ issued a memorandum which pressures IJs to deny multiple continuances, including continuances to find an attorney or for an attorney to prepare for a case.35 Following this policy change, then-AG Sessions issued the precedential decision, Matter of L-A-B-R- et al., interfering with an IJ’s ability to grant continuance requests and introducing procedural hurdles that will also make it harder for people to request and IJs to grant continuances.36
3
AILA Doc. No. 19021900. (Posted 2/21/19)

These policy changes weaken due process protections and contradict the agency’s plan to “improve existing laws and policies.” Continuances represent a critical docketing management tool for IJs and are a necessary means to ensure that due process is afforded in removal proceedings. The number one reason respondents request continuances is to find counsel, who play a critical role in ensuring respondents receive a fair hearing.37 Continuances are particularly important to recent arrivals, vulnerable populations (such as children), and non-English speakers—all of whom have significant difficulties navigating an incredibly complex immigration system. Furthermore, individuals represented by counsel contribute to more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, explained, “It is our experience, when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”38
Video Teleconferencing (VTC)
Stated Policy Goal: To expand its adjudicatory capacity, EOIR called for pilot VTC “immigration
adjudication centers.”39
Reality: EOIR expanded the use of VTC for substantive hearings undermining the quality of communication and due process.
A 2017 report commissioned by EOIR concluded that court proceedings by VTC should be limited to “procedural matters” because appearances by VTC may lead to “due process issues.”40 Despite these concerns, EOIR expanded use of VTC for substantive hearings. A total of fifteen IJs currently sit in two immigration adjudication centers—four in Falls Church, Virginia, and eleven in Fort Worth, Texas.41 IJs are currently stationed at these “centers” where they adjudicate cases from around the country from a remote setting.42
For years, legal organizations such as AILA and the American Bar Association (ABA) have opposed use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.43 Technological glitches such as weak connections and bad audio can make it difficult to communicate effectively, and 29 percent of EOIR staff reported that VTC caused meaningful delay.44 Additionally, VTC technology does not provide for the ability to transmit nonverbal cues. Such issues can impact an IJs’ assessment of an individual’s credibility and demeanor, which are significant factors in determining appropriate relief.45 Moreover, use of VTC for immigration hearings also limits the ability for attorneys to consult confidentially with their clients. No matter how high-quality or advanced the technology is that is used during a remote hearing, such a substitute is not equivalent to an in-person hearing and presents significant due process concerns.
IJ Hiring
Stated Policy Goal: In order to increase the IJ corps and reduce the amount of time to hire new
IJs, the former AG introduced a new, streamlined IJ hiring process.46
Reality: Following DOJ’s implementation of the streamlined IJ hiring process, DOJ faced allegations of politicized and discriminatory hiring47 that call into question the fundamental fairness of immigration court decisions.
On its face, the agency “achieved” its goal to quickly hire more IJs, reducing the time it takes to onboard new IJs by 74 percent and increasing the number of IJs on the bench from 338 IJs at the end of FY2017 to 414 IJs by the end of 2018.48 What these statistics do not reveal is that the new plan amended hiring processes to provide political appointees with greater influence in the final selection of IJs.49 In addition to procedural changes, DOJ also made substantive changes to IJ hiring requirements, “over-emphasizing litigation experience to the exclusion of other relevant immigration law experience.”50 Both Senate and
4
AILA Doc. No. 19021900. (Posted 2/21/19)

House Democrats requested an investigation with the DOJ Inspector General (IG) to examine allegations that DOJ has targeted candidates and withdrawn or delayed offers for IJ and BIA positions based on their perceived political or ideological views.51 These allegations are particularly troublesome given the influx in the number of IJs resigning and reports that experienced IJs are “being squeezed out of the system for political reasons.”52
Telephonic Interpreters
Stated Policy Goal: EOIR requested additional funding to support additional IJs on staff and to
improve efficiency.53
Reality: EOIR failed to budget for needed in-person interpreters54 resulting in the use of telephonic interpreters for most hearings, which raises concerns about hearing delays and potential communication issues.55
In April of 2017, an EOIR-commissioned report revealed that 31 percent of court staff reported that telephonic interpreters caused a meaningful delay in their ability to proceed with their daily responsibilities.56 With more than 85 percent of respondents in immigration court relying on use of an interpreter, EOIR’s decision to replace in-person interpreters with telephonic interpreters will undoubtedly make court room procedures less efficient.57 In addition, similar to many of the technological concerns cited with use of VTC, communication issues related to use of remote interpreters can jeopardize an immigrant’s right to a fair day in court. For example, it is impossible for telephonic interpreters to catch non-verbal cues that may determine the meaning of the speech.
III. Conclusion
The immigration court system is charged with ensuring that individuals appearing before the court receives a fair hearing and full review of their case consistent with the rule of law and fundamental due process. Instead of employing policies that propel the court toward these goals, the administration’s plan relies on policies that compromise due process. IJs responsible for adjudicating removal cases are being pressured to render decisions at a break-neck pace. By some accounts “morale has never, ever been lower” among IJs and their staff.58 Moreover, since the introduction of EOIR’s plan, the number of cases pending in the immigration courts has increased 25 percent (from 655,932 on 9/31/17 to 821,726 on 12/31/18). This number does not even account for the 35-day partial government shutdown that cancelled approximately 60,000 hearings while DHS continued carrying out enforcement actions.59 Congress must conduct rigorous oversight into the administration’s policies that have eroded the court’s ability to ensure that decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. But oversight is not enough. In order protect and advance America’s core values of fairness and equality, the immigration court must be restructured outside of the control of DOJ, in the form of an independent Article I court.60
900,000 800,000 700,000 600,000 500,000 400,000 300,000 200,000 100,000
0
792,738 821,726
655,932 521,416
460,021 430,095
356,246
PENDING IMMIGRATION CASES
EOIR Pending Cases
5
Pending cases equals removal, deportation, exclusion, asylum-only, and AILA Doc. No. w1it9hh0o2ld1in9g0o0nl.y. (Po
Source: Department of Justice
sted 2/21/19)

1 For more information, contact AILA Senior Policy Counsel Laura Lynch at (202) 507-7627 or llynch@aila.org.
2 *An earlier version of this policy brief, dated February 19, 2019, incorrectly stated that the memo was signed on October 17, 2017. This typo has been corrected. FOIA Response, see pg. 9.
3 On December 5, 2017, EOIR publicly issued a backgrounder for the EOIR Strategic Caseload Reduction Plan. U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
4 U.S. Department of Justice, EOIR Adjudication Statistics, Pending Cases, (Dec. 31, 2018). The over 820,000 cases does not account for the 35-day partial government shutdown that cancelled approximately 60,000 immigration court hearings while at the same time, DHS continued carrying out enforcement actions, Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
5 U.S. Department of Justice, Adjudication Statistics, Pending Cases, Dec. 31, 2018.
6 FOIA Response, see pg. 6.
7 Jason Boyd, The Hill, “8,000 new ways the Trump administration is undermining immigration court independence,” Aug. 19, 2018.
8 ABA Commission on Immigration, Reforming the Immigration System, Proposals to Promote the Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (2010).
9 FOIA Response, see pg. 6. See also U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
10 FOIA Response, see pg. 6.
11 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
12 Id.
13 NAIJ Letter to then-Attorney General Sessions, Jan. 30, 2018.
14 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017, pg. 26, [hereinafter “Booz Allen Report”].
15 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
16 Id.
17 ICE Provides Guidance to OPLA Attorneys on Administrative Closure Following Matter of Castro Tum, June 15, 2018.
18 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
19 Congressional Letter Requesting Information Regarding Initiative to Recalendar Administratively Closed Cases, Sept. 13, 2018.
20 FOIA Response, see pg. 5.
21 Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
22 FOIA Response, see pg. 5.
23 Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
24 FOIA Response, pg. 5. See also Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018. See also Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
25 See Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
26 C-SPAN, Federal Immigration Court System, Sept. 21, 2018. (“[t]his past week or so, they [EOIR] unveiled what’s called the IJ dashboard…this mechanism on your computer every morning that looks like a speedometer on a car… The goal is for you to be green but of course you see all of these reds in front of you and there is a lot of anxiety attached to that.” NAIJ President, Judge A. Ashley Tabaddor).
27 Ani Ucar, Vice News, “Leaked Report Shows the Utter Dysfunction of Baltimore’s Immigration Court,” Oct. 3, 2018.
28 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges (October 2017).
29 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence.
6
AILA Doc. No. 19021900. (Posted 2/21/19)

30 Association of Pro Bono Counsel (APBCo), Letter to Congress IJ Quotas, Oct. 26, 2017.
31 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court (2016).
32 U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017, pg. 2.
33 FOIA Response, pg. 8.
34 FOIA Response, pgs. 7-8.
35 U.S. Department of Justice, Operating Policies and Procedures Memorandum 17-01: Continuances, July 31, 2017. 36 Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018).
37 GAO Report, 17-438, Immigration Courts, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, (June 2017).
38 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
39 FOIA Response, pg. 3.
40 Booz Allen Report, pg. 23.
41 U.S. Department of Justice, EOIR Immigration Court Listings, Feb. 2019.
42 Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
43 AILA Comments on ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Letter to ACUS, Feb. 17, 2012.
44 Booz Allen Report, pg. 23.
45 An EOIR commissioned report suggested limiting use of VTC to procedural matters only because it is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC. Booz Allen Report, pg. 23.
46 FOIA Response, pg. 3.
47 Priscilla Alvarez, The Atlantic, Jeff Sessions is Quietly Transforming the Nation’s Immigration Courts, Oct. 17, 2018.
48 U.S. Department of Justice, EOIR Adjudication Statistic, IJ Hiring, (Jan. 2019).
49 U.S. Department of Justice, EOIR Announces Largest Ever Immigration Judge Investiture, Sept. 28, 2018; Document Obtained via FOIA by Human Rights First, Memorandum for the Attorney General, Immigration Judge Hiring Process, Apr. 4, 2017.
50 Strengthening and Reforming America’s Immigration Court System, Hearing Before Subcommittee on Border Security and Immigration, of the Senate Committee on the Judiciary, 115th Cong. 5 (2018) (A. Ashley Tabaddor, President, NAIJ), See also Questions for the Record.
51 Senate and House Democrats Request IG Investigation of Illegal Hiring Allegations at DOJ, May 8, 2018. Problematic hiring practices are not new for this agency. Over a decade ago, the IG and the Office of Professional Responsibility revealed that then-Attorney General Alberto Gonzales utilized political and ideological considerations in the hiring of IJ and BIA candidates. U.S Department of Justice IG Report, (2008).
52 Hamed Aleaziz, BuzzFeed News, Being an Immigration Judge Was Their Dream. Under Trump, It Became Untenable, Feb. 13, 2019.
53 FOIA Response, pg. 3.
54 NAIJ Letter to Senators, Government Shutdown, Jan. 9, 2019.
55 Id.
56 Booz Allen Report, pg. 25.
57 Laura Abel, Brennan Center For Justice, Language Access in Immigration Courts, (2010).
58 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
59 Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
60 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
7
AILA Doc. No. 19021900. (Posted 2/21/19)

Here’s the link to the audio:

https://www.aila.org/infonet/aila-press-call-on-eoir-memo-obtained-via-foia

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

Here’s “simul-coverage” from LA Times star reporter Molly O’Toole:

https://www.latimes.com/politics/la-na-pol-immigration-court-backlog-worsens-20190221-story.html

The Trump administration’s controversial plan to shrink the ballooning backlog of immigration cases by pushing judges to hear more cases has failed, according to the latest data, with the average wait for an immigration hearing now more than two years.

Since October 2017, when the Justice Department approved a plan aimed at reducing the backlog in immigration court, the pending caseload has grown by more than 26%, from 655,932 cases to just shy of 830,000, according to Syracuse University’s Transactional Access Records Clearinghouse, which tracks data from immigration courts.

Even that figure likely understates the backlog because it doesn’t include the impact of the 35-day government shutdown in December and January. Because the system’s roughly 400 immigration judges were furloughed during the shutdown, some 60,000 hearings were canceled. Thousands were rescheduled, adding to the already long wait times.

The administration “has not only failed to reduce the backlog, but has eroded the court’s ability to ensure due process” by pressuring judges to rule “at a breakneck pace” on whether an immigrant should be removed from the United States, the American Immigration Lawyers Assn. — a nonprofit organization of more than 15,000 immigration attorneys and law professors — said in a statement.

When the Justice Department’s Executive Office of Immigration Review, which administers immigration courts, released its plan, officials described it as a “comprehensive strategy for significantly reducing the caseload by 2020,” according to a partially redacted copy of an October 2017 memo obtained by the immigration lawyers group through a Freedom of Information Act request.

“The size of EOIR’s pending caseload will not reverse itself overnight,” the memo said, but by fully implementing the strategy, the office can “realistically expect not only a reversal of the growth of the caseload, but a significant reduction in it.”

Instead, the average wait has grown by a month from January alone, to 746 days — ironically extending the stay of thousands of migrants whom the administration might want to deport from the United States. The Justice Department declined to immediately comment on the growth of the backlog.

The number of pending immigration cases has risen dramatically in recent years, doubling from less than 300,000 in 2011 to 650,000 by December 2017, the end of Trump’s first year in office, according to the Justice Department.

The Trump administration has blamed the ballooning backlog on President Obama’s immigration policies, saying that “policy changes in recent years have slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.”

Administration officials have pointed to Obama’s effort to focus deportation on immigrants with serious criminal records and protecting certain immigrants known as Dreamers who were brought to the U.S. as children as examples of policies that have provided incentives for illegal border crossings.

The administration’s plan to reverse the backlog included a number of controversial steps.

One move restricted the ability of immigration judges to schedule and set priorities for their cases under a process known as “administrative closure.” That change compelled judges to reopen thousands of cases that had been deemed low priority and had been closed. Within three months of the memo, Immigration and Customs Enforcement had moved to reschedule 8,000 cases, prompting concern from lawmakers, according to the immigration lawyers association. Potentially, as many as 350,000 cases ultimately could be added back onto the court dockets.

The administration’s plan also tied immigration judges’ individual performance reviews to the number of cases they complete, calling for them to finish 700 removal cases in the next year.

In contrast to regular courts, immigration judges are not independent; they’re part of the Justice Department. Because of that, the attorney general is both the chief prosecutor in immigration cases and the ultimate boss of the judges, who are classified as government attorneys.

The National Assn. of Immigration Judges, as well as the immigration lawyers association and other groups, have long called for Congress to end what they see as a built-in conflict of interest and create an immigration court separate from the Justice Department.

“As long as we continue to allow the court to be used as a law enforcement tool,” said Ashley Tabaddor, president of the National Assn. of Immigration Judges, “you’re going to get these kinds of backlogs and inefficiencies.”

Any speedup that may have resulted from the imposition of quotas on the judges has been overtaken by the administration’s stepped-up enforcement efforts, which have pushed thousands of new cases into the system.

Stepped-up enforcement without a corresponding increase in judicial resources provides the main reason the backlog has gone up so dramatically, said Stephen Legomsky, Homeland Security’s chief counsel for immigration from 2011 to 2013.

“Immediately upon taking office, President Trump essentially advised Border Patrol agents and ICE officers that they were to begin removal proceedings against anyone they encountered that they suspected of being undocumented, without sufficiently increasing resources for immigration judges,” Legomsky said.

Under previous administrations, “the thinking was, ‘Let’s not spend our limited resources on people who are about to get legal status,’” he said, “Taking that discretion away dramatically increased the caseload.”

Some officials warned that could happen when the effort to curtail the backlog began.

“Any burst of case initiation,” by Homeland Security “could seriously compromise” the Justice Department’s “ability to address its caseload and greatly exacerbate the current state of the backlog,” the acting director of the immigration review office wrote in the October memo to Deputy Atty. Gen. Rod Rosenstein.

The quota effort could also prevent attorneys from providing representation to immigrants, according to the Assn. of Pro Bono Counsel, which represents lawyers who handle cases free of charge for the poor.

Whether immigrants have legal representation makes a huge difference in the outcome of cases: Between October 2000 and November 2018, about 82% of people in immigration court without attorneys were either ordered deported or gave up on their cases and left the country voluntarily, while only 31% of those with lawyers were deported or left.

The administration has succeeded in speeding the hiring of new immigration judges by 74%. The number of immigration judges has grown from 338 when the plan was introduced to 414 by the end of 2018.

Lawmakers have raised concerns that some of those new hires have been politically motivated. In May, House Democrats requested an investigation by the Justice Department Inspector General’s office into allegations that candidates have been chosen or rejected for perceived ideological views.

“The current administration has taken advantage of the court’s structural flaws,” the immigration lawyers association wrote, “introducing numerous policies … that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.”

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

My Takeaways:

  • The DOJ politicos made the already bad situation immeasurably worse;
  • At no time did any of those supposedly  “in charge” seriously consider taking measures that could have promoted Due Process and fundamental fairness in a troubled system whose sole function was to insure and protect these Constitutional requirements;
  • Sessions was warned about the severe adverse consequences of eliminating “administrative closure” by EOIR, but went ahead with his preconceived “White Nationalist” agenda, based on bias, not law;
  • Deputy Attorney General Rod Rosenstein, who signed off on this monstrosity, is no “hero” just because he stood up to Trump on the Mueller investigation; he’s just another “go along to get along,” like the rest of the Trump DOJ political appointees (with the possible exception of FBI Director Chris Wray);
  • No sitting judge, indeed no real “stakeholder,” was consulted about these “designed to fail” measures;
  • The placement of what purports to be a “court system” dedicated to Due Process within the Justice Department is preposterous;
  • Congress, which created this parody of justice, and the Article III Courts who have failed to “just say no” to all removal orders produced in this “Due Process Free Zone” must share the blame for allowing this Constitutionally untenable situation to continue;
  • Once again, the victims of the Trump Administration’s “malicious incompetence” are being punished while the “perpetrators” suffer few, if any, consequences.

PWS

02-21-19

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

UPDATE: Molly’s article  was the “front page lead” in today’s print edition of the LA Times.  

https://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Gotta give the crew at DOJ/EOIR HQ credit for screwing this up so royally that it’s now off the “back pages” and into the headlines where it belongs. You couldn’t buy publicity like this!

First EOIR Director David “No News Is Good News” Milhollan must be rolling over in his grave right now. And his “General Counsel/Chief Flackie,” my friend and former BIA Appellate Judge Gerald S. “No Comment/We Don’t Track That Statistic” Hurwitz must be watching all of this with amusement and bemusement from his retirement perch. Just goes to support the “Milhollan/Hurwitz Doctrine” that “only bad things can happen once they know you exist.”

PWS

02-22-19

 

Related posts:

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  2. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”
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  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

U.S. IMMIGRATION COURTS: FEINBLOOM, STEVENS, & SCHMIDT TAKE CASE FOR ARTICLE I IMMIGRATION COURT TO FBA’S 2019 CIVIL RIGHTS ENTOUFFEE IN NEW ORLEANS, LA, FEB. 16, 2019

 

“Injustice Anywhere is a Threat to Justice Everywhere. . . . Whatever Affects One Directly, Affects All Indirectly.”

Dr. Martin Luther King, Jr.

Letters From the Birmingham Jail

New Orleans– Appearing before the Federal Bar Association’s 2019 Civil Rights Entouffee, Attorney Jeffrey Feinbloom of the FBA Civil Rights Section, FBA Immigration Section Chair Elizabeth “Betty” Stevens, and I made a powerful pitch to assembled Civil Rights Attorneys for their support for an Article I United States Immigration Court.

 

Our panel emphasized that the current Immigration Courts under the Executive Office for Immigration Review (“EOIR”), U.S. Department of Justice are a “failed system” threatening everyone’s civil rights. Notwithstanding more Immigration Judges, these “courts” have continued to build backlog at an astonishing and accelerating rate, now topping 1.1 million pending cases following the Government shutdown.

 

Worse yet, they have essentially become a “hostile environment” for migrants, their attorneys, and sometimes the Immigration Judges and court staff themselves. They also are an impediment to realistic, professional immigration enforcement by DHS. Perhaps worst of all, due process of law has become the apparent enemy of DOJ and EOIR, rather than the objective.

 

The only way out of this mess is the establishment of an independent Article I Immigration Court, administered in a professional and apolitical manner by sitting judges, not politicized bureaucrats in Washington. Section Chair Betty Stevens and other Section members have helped develop a non-partisan bill to create an Article I Court.  We urge everyone to ask their Congressional representatives to make Immigration Court reform an urgent national priority.

 

Schmidt’s Five Points On Why U.S. immigration Courts Are Unlike Any Other Court System in America

 

  • Judges are selected, directed, and “supervised” by the Attorney General, the chief prosecutor;
  • There is no right to appointed counsel, so young children and others without any understanding of the U.S. legal system, often in detention, are forced to “represent themselves” in life or death cases against experienced ICE Counsel;
  • The chief prosecutor, the Attorney General, can change any individual case result that he doesn’t like, and rewrite immigration law in the DHS’s favor through “certified precedents;”
  • There is a 1.1 million case backlog, resulting largely from “Aimless Docket Reshuffling” by the DOJ that continues to grow, despite an increase in judges, without any realistic plan for reducing it;
  • So-called “civil immigration detention” can be used by the Government to limit representation, and for coercion and deterrence of migrants with little or no effective judicial recourse in many cases.

 

PWS

02-21-19

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  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019
  4. COURTS OF INJUSTICE: Lawyers’ Groups Rip Bias, “Asylum Free Zone” At El Paso Immigration Court!

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Maybe we’d have things like this:

 

SENIOR JUDICIAL DUE PROCESS BRIGADE

 

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

 

DIVISION A: RETIRED IMMIGRATION JUDGES

 

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

 

DIVISION B: RETIRED JUDGES FROM OUTSIDE THE IMMIGRATION BENCH

 

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

 

Obvious candidates for “Division B Judges:”

 

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

 

 

ASYLUM OFFICER MAGISTRATE BRIGADE

 

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

 

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

 

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

PWS

02-14-19

 

 

Related posts:

  1. WASHINGTON POST/ABC POLL: TRUMP’S “CRUEL, MALICIOUS INCOMPETENCE” APPROACH TO ASYLUM HIGHLY UNPOPULAR & INEFFECTIVE: Dems Can Build Support By Strengthening Current Asylum System & Making It Work! — The “Real Face” Of “Border Security” Has Little Or Nothing To Do With Trump’s White Nationalist Rants & Barrage Of Lies!
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. THE TRUMP ADMINISTRATION LIES, BUT TRAC STATS DON’T: TRAC Exposes Trump’s False Narratives About Families & “Sanctuary Cities” – No Families Are Not “Overwhelming” The System & Most Of Them Already Have Been Absorbed By So-Called “Sanctuary Jurisdictions!”
  4. ALL THINGS CONSIDERED: “Roundtable” Leader Judge Jeffrey Chase Tells NPR’s Michel Martin How Trump’s “Malicious Incompetence” & EOIR’s “Dysfunctional Bias” Are Increasing Backlog & Killing Due Process In Failing Immigration Court System

INCONVENIENT TRUTH: HALEY SWEETLAND EDWARDS @ TIME TELLS WHAT TRUMP, MILLER, COTTON, SESSIONS, & THEIR WHITE NATIONALIST GANG DON’T WANT YOU TO KNOW: Human Migration Is A Powerful Force As Old As Human History; It’s A Plus For Receiving Nations; It Won’t Be Stopped By Walls, Jails, Racist Laws, Or Any Other Restrictionist Nonsense; But, It Can Be Intelligently Controlled, Channeled, Harnessed, & Used For The Benefit Of The U.S. & The Good Of The Migrants! — “But to maximize that future good, governments must act rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.”

http://time.com/longform/migrants/

Haley Sweetland Edwards writes in Time Magazine:

But they were willing to do whatever it took. Going back to Guatemala was simply not an option, they said. Monterroso explained that in October, their family was forced to flee after a gang threatened to murder the children if they didn’t pay an exorbitant bribe, five months’ worth of profits from their tiny juice stall. The family hid for a day and a half in their house and then sneaked away before dawn. “There is nobody that can protect us there,” Monterroso said. “We have seen in the other cases, they kill the people and kill their children.” Her voice caught. “The first thing is to have security for them,” she said of her kids, “that nothing bad happens to them.”

All told, more than 159,000 migrants filed for asylum in the U.S. in fiscal year 2018, a 274% increase over 2008. Meanwhile, the total number of apprehensions along the southern border has decreased substantially—nearly 70% since fiscal year 2000. President Donald Trump has labeled the southern border a national crisis. He refused to sign any bill funding the federal government that did not include money for construction of a wall along the frontier, triggering the longest shutdown in American history, and when Democrats refused to budge, he threatened to formally invoke emergency powers. The President says the barrier, which was the centerpiece of his election campaign, is needed to thwart a dangerous “invasion” of undocumented foreigners.

But the situation on the southern border, however the political battle in Washington plays out, will continue to frustrate this U.S. President, and likely his successors too, and not just because of continuing caravans making their way to the desert southwest. Months of reporting by TIME correspondents around the world reveal a stubborn reality: we are living today in a global society increasingly roiled by challenges that can be neither defined nor contained by physical barriers. That goes for climate change, terrorism, pandemics, nascent technologies and cyber-attacks. It also applies to one of the most significant global developments of the past quarter-century: the unprecedented explosion of global migration.

. . . .

They abandoned their homes for different reasons: tens of millions went in search of better jobs or better education or medical care, and tens of millions more had no choice. More than 5.6 million fled the war in Syria, and a million more were Rohingya, chased from their villages in Myanmar. Hundreds of thousands fled their neighborhoods in Central America and villages in sub-Saharan Africa, driven by poverty and violence. Others were displaced by catastrophic weather linked to climate change.

Taken one at a time, each is an individual, a mixture of strengths and weaknesses, hope and despair. But collectively, they represent something greater than the sum of their parts. The forces that pushed them from their homes have combined with a series of global factors that pulled them abroad: the long peace that followed the Cold War in the developed world, the accompanying expansion of international travel, liberalized policies for refugees and the relative wealth of developed countries, especially in Europe and the U.S., the No. 1 destination for migrants. The force is tidal and has not been reversed by walls, by separating children from their parents or by deploying troops. Were the world’s total population of international migrants in 2018 gathered from the places where they have sought new lives and placed under one flag, they would be its fifth largest country.

The mass movement of people has changed the world both for better and for worse. Migrants tend to be productive. Though worldwide they make up about 3% of the population, in 2015 they generated about 9% of global GDP, according to the U.N. Much of that money is wired home—$480 billion in 2017, also according to the U.N.—where the cash has immense impact. Some will pay for the passage of the next migrant, and the smartphone he or she will keep close at hand. The technology not only makes the journey more efficient and safer—smugglers identify their clients by photos on instant-messaging—but, upon arrival, allows those who left to keep in constant contact with those who remain behind, across oceans and time zones.

Yet attention of late is mostly focused on the impact on host countries. There, national leaders have grappled with a powerful irony: the ways in which they react to new migrants—tactically, politically, culturally—shape them as much as the migrants themselves do. In some countries, migrants have been welcomed by crowds at train stations. In others, images of migrants moving in miles-long caravans through Central America or spilling out of boats on Mediterranean shores were wielded to persuade native-born citizens to lock down borders, narrow social safety nets and jettison long-standing humanitarian commitments to those in need.

. . . .

The U.S., though founded by Europeans fleeing persecution, now largely reflects the will of its Chief Executive: subverting decades of asylum law and imposing a policy that separated migrant toddlers from their parents and placed children behind cyclone fencing. Trump floated the possibility of revoking birthright citizenship, characterized migrants as “stone cold criminals” and ordered 5,800 active-duty U.S. troops to reinforce the southern border. Italy refused to allow ships carrying rescued migrants to dock at its ports. Hungary passed laws to criminalize the act of helping undocumented people. Anti-immigrant leaders saw their political power grow in the Czech Republic, Slovenia, Sweden, Germany, Finland, Italy and Hungary, and migration continued to be a factor in the Brexit debate in the U.K.

These political reactions fail to grapple with a hard truth: in the long run, new migration is nearly always a boon to host countries. In acting as entrepreneurs and innovators, and by providing inexpensive labor, immigrants overwhelmingly repay in long-term economic contributions what they use in short-term social services, studies show. But to maximize that future good, governments must act -rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.

. . . .

But protocols and treaties can, at best, hope to respond to the human emotions and hard realities that drive migration. No wall, sheriff or headscarf law would have prevented Monterroso and Calderón, or Yaquelin and Albertina Contreras, or Sami Baladi and Mirey Darwich from leaving their homes. Migrants will continue to flee bombs, look for better-paying jobs and accept extraordinary risks as the price of providing a better life for their children.

The question now is whether the world can come to define the enormous population of international migrants as an opportunity. No matter when that happens, Eman Albadawi, a teacher from Syria who arrived in Anröchte, Germany, in 2015, will continue to make a habit of reading German-language children’s books to her three Syrian-born kids at night. Their German is better than hers, and they make fun of her pronunciation, but she doesn’t mind. She is proud of them. At a time when anti-immigrant rhetoric is on the rise, she tells them, “We must be brave, but we must also be successful and strong.” —With reporting by Aryn Baker/Anröchte, Germany; Melissa Chan, Julia Lull, Gina Martinez, Thea Traff/New York; Ioan Grillo/Tijuana; Abby Vesoulis/Murfreesboro, Tenn.; and Vivienne Walt/Paris •

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

I strongly encourage everyone to read Haley’s outstanding article at the link.  It is one of the best and most easily understandable explanations of a complex phenomenon that I have seen recently. As I always say, “lots of moving parts.” But Haley and her colleagues have distilled the fundamental truths concealed by this complexity. Congrats and appreciation to Haley and everyone who worked on this masterpiece!

Haley debunks and eviscerates the restrictionist, racist “fear and loathing” baloney that Trump and his White Nationalist gang peddle. The simple truth always has been and continues to be that America needs more immigration.

The only real question is whether we are going to be smart and funnel it into expanded legal and humanitarian channels or dumb like Trump and push the inevitable migration into an extra-legal system. The latter best serves neither our country nor the humans pushed into an underground existence where they can be exploited and are artificially prevented from achieving their full potential for themselves and for us. Right now, we have a mix skewed toward forcing far, far too many good folks to use the extra-legal system.

We’ll only be able to improve the situation by pushing the mix toward the legal and the humanitarian, rather than the extra-legal. That’s why it’s virtually impossible to have a rational immigration debate with folks like Trump who start with the racist-inspired fiction that migrants are a “threat” who can be deterred, punished, and diminished.

Contrary to Trump and the White Nationalists, the real immigration problems facing America are 1) how can we best integrate the millions of law-abiding and productive undocumented individuals already residing here into our society, and 2) how can we most fairly and efficiently insure that in the future individuals like them can be properly screened and come to our country through expanded humanitarian and legal channels. Until we resolve these, American will continue to founder with immigration and fail to maximize its many benefits. That’s bad for us, for migrants, and for the future of our nation.

As a reminder, in the context of Congressional negotiations on border security, I recently put together a list of “practical fixes” to the immigration system which would address border security, humanitarian relief, and improved compliance with Constitutional Due process without major legislative changes — mostly “tweaks” and other common sense amendments that would make outsized improvements and certainly would be an improvement on squandering $5.7 billion and getting nothing but a largely symbolic “instant white elephant” border wall in return.  So, here it is again in all its hypothetical glory:  “THE SMARTS ACT OF 2019:

https://wp.me/p8eeJm-3E3

SECURITY, MIGRATION ASSISTANCE RENEWAL, & TECHNICAL SYSTEMS ACT (“SMARTS ACT”) OF 2019

  • Federal Employees
    • Restart the Government
    • Retroactive pay raise

 

  • Enhanced Border Security
    • Fund half of “Trump’s Wall”
    • Triple the number of USCIS Asylum Officers
    • Double the number of U.S. Immigration Judges and Court Staff
    • Additional Port of Entry (“POE”) Inspectors
    • Improvements in POE infrastructure, technology, and technology between POEs
    • Additional Intelligence, Anti-Smuggling, and Undercover Agents for DHS
    • Anything else that both parties agree upon

 

  • Humanitarian Assistance
    • Road to citizenship for a Dreamers & TPSers
    • Prohibit family separation
    • Funding for alternatives to detention
    • Grants to NGOs for assisting arriving asylum applicants with temporary housing and resettlement issues
    • Require re-establishment of U.S. Refugee Program in the Northern Triangle

 

  • Asylum Process
    • Require Asylum Offices to consider in the first instance all asylum applications including those generated by the “credible fear” process as well as all so-called “defensive applications”

 

  • Immigration Court Improvements
    • Grants and requirements that DHS & EOIR work with NGOs and the private bar with a goal of achieving 100% representation of asylum applicants
    • Money to expand and encourage the training and certification of more non-attorneys as “accredited representatives” to represent asylum seekers pro bono before the Asylum Offices and the Immigration Courts on behalf of approved NGOs
    • Vacate Matter of A-B-and reinstate Matter of A-R-C-G-as the rule for domestic violence asylum applications
    • Vacate Matter of Castro-Tum and reinstate Matter of Avetisyan to allow Immigration Judges to control dockets by administratively closing certain “low priority” cases
    • Eliminate Attorney General’s authority to interfere in Immigration Court proceedings through “certification”
    • Re-establish weighing of interests of both parties consistent with Due Process as the standard for Immigration Court continuances
    • Bar AG & EOIR Director from promulgating substantive or procedural rules for Immigration Courts — grant authority to BIA to promulgate procedural rules for Immigration Courts
    • Authorize Immigration Courts to consider all Constitutional issues in proceedings
    • Authorize DHS to appeal rulings of the BIA to Circuit Courts of Appeal
    • Require EOIR to implement the statutory contempt authority of Immigration Judges, applicable equally to all parties before the courts, within 180 days
    • Bar “performance quotas” and “performance work plans” for Immigration Judges and BIA Members
    • Authorize the Immigration Court to set bonds in all cases coming within their jurisdiction
    • Fund and require EOIR to implement a nationwide electronic filing system within one year
    • Eliminate the annual 4,000 numerical cap on grants of “cancellation of removal” based on “exceptional and extremely unusual hardship”
    • Require the Asylum Office to adjudicate cancellation of removal applications with renewal in Immigration Court for those denied
    • Require EOIR to establish a credible, transparent judicial discipline and continued tenure system within one year that must include: opportunity for participation by the complainant (whether Government or private) and the Immigration Judge; representation permitted for both parties; peer input; public input; DHS input; referral to an impartial decision maker for final decision; a transparent and consistent system of sanctions incorporating principles of rehabilitation and progressive discipline; appeal rights to the MSPB

 

  • International Cooperation
    • Fund and require efforts to work with the UNHCR, Mexico, and other countries in the Hemisphere to improve asylum systems and encourage asylum seekers to exercise options besides the U.S.
    • Fund efforts to improve conditions and the rule of law in the Northern Triangle

 

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

No, it wouldn’t solve all problems overnight. But, everything beyond “Trump’s Wall” would make a substantial improvement over our current situation that would benefit enforcement, border security, human rights, Due Process, humanitarian assistance, and America. Not a bad “deal” in my view!

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

PWS

01-27-19

 

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  3. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  4. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

JUDGE SULLIVAN STUFFS TRUMP’S REQUEST TO KEEP ON VIOLATING ASYLUM LAW PENDING APPEAL — Stay Denied In Grace v. Whitaker!

https://www.cnn.com/2019/01/25/politics/sullivan-asylum-ruling/index.html

Dan Berman reports for CNN:

Washington (CNN)Federal Judge Emmet Sullivan on Friday rejected a Justice Department request to stay his earlier ruling blocking the Trump administration’s policy that makes it difficult for victims fleeing domestic and gang violence to qualify for asylum in the United States.

Last month, Sullivan agreed with a group of women and children who said the policy imposed a heightened standard in reviewing their claims, concluding that the administration must stop deporting migrants currently in the US “without first providing credible fear determinations consistent with the immigration laws.”
Friday, he wrote: “The government now requests a stay, pending appeal of the Court’s Order, to enable the unlawful policies to continue to apply in all expedited removal cases, except the plaintiffs. … Defendants’ motion for stay is DENIED.”
The attorney general has full authority over the immigration courts — a separate court system which operates under the Justice Department.
*********************************
We have an Administration without shame, human decency, or, obviously, the will and skill to govern. And, a DOJ where lawyers act not as legal guardians of the people’s rights, but continue to defend the indefensible, ill serves the American people.
PWS
01-25-19

Related posts:

  1. THE HUMAN AGONY OF ASYLUM: SPEND 4 MIN. WITH MS. A-B- & HUMAN/WOMEN’S RIGHTS EXPERT PROFESSOR KAREN MUSALO — Beaten, Raped, & Threatened With Death By Her Husband, Hounded Throughout Her Country, Abandoned By El Salvadoran Authorities, She Sought Refuge In The U.S., Winning Her Case At The BIA — Then She Was Targeted For A Vicious Unprovoked Attack By Notorious Scofflaw Immigration Judge Stuart Couch & White Nationalist Xenophobe Jeff Sessions — She’s Still Fighting For Her Life!
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”
  4. NOTORIOUS CHILD ABUSER JEFF SESSIONS ALSO TARGETED REFUGEE WOMEN & GIRLS FOR DEATH, RAPE, TORTURE, & OTHER MAYHEM — HIS EVIL PLANS HIT A ROADBLOCK: THE LAW! — Read The Latest Commentary From Hon. Jeffrey S.Chase On Challenges To Sessions’s Effort To Pervert The Law — Matter of A-B- In Light Of Grace v. Whitaker!

SPECIAL COURTSIDE “PRESS RELEASE” — “Court Chaos”

COURT CHAOS

“It’s chaos on top of disaster. By the end of next week, Trump will have added at least 100,000 cases to the already existing backlog of 800,000 + cases, plus another 300,000 that former A.G. Sessions diabolically and unnecessarily promised to artificially force back into the system. That’s 4-5 years of work for the Courts even with no new filings! People with good cases are denied justice while others postpone their day of reckoning indefinitely.

Many of these cases will never be decided unless Congress reforms this broken system by removing political control from the DOJ. I call this “Aimless Docket Reshuffling” (“ADR”) — cases being moved around by incompetent politicos at the DOJ without ever being completed. And under Sessions, the DOJ excelled at ADR, unnecessarily and artificially “jacking” the backlog by an incredible 50%+ in less than two years of politically biased and incompetent maladministration of the system. And, that’s even with more judges on the bench! Trump and his cronies have effectively destroyed one of America’s largest and most important court systems.

It must be reformed into a court independent of Executive overreach and incompetence. A new court must be established run by apolitical expert judges with the assistance of professional court administrators accountable to those judges, not Administration politicos. It’s not rocket science, just common sense, fundamental fairness, and above all, Constitutional Due Process.”

PWS

01-25-19

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

THE HUMAN AGONY OF ASYLUM: SPEND 4 MIN. WITH MS. A-B- & HUMAN/WOMEN’S RIGHTS EXPERT PROFESSOR KAREN MUSALO — Beaten, Raped, & Threatened With Death By Her Husband, Hounded Throughout Her Country, Abandoned By El Salvadoran Authorities, She Sought Refuge In The U.S., Winning Her Case At The BIA — Then She Was Targeted For A Vicious Unprovoked Attack By Notorious Scofflaw Immigration Judge Stuart Couch & White Nationalist Xenophobe Jeff Sessions — She’s Still Fighting For Her Life!

Related posts:

  1. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”

AMERICA’S SHAME: 🤡 “CLOWN COURTS” PLUNGE TO NEW DEPTHS UNDER TRUMP & DOJ: Unpaid Judges, Court Clerks Who Can’t Afford The Rent, Illegal Rulings & Idiotic Policies By Biased & Ignorant DOJ Politicos, Unachievable Expectations, Unnecessary Postponements Caused By Trump & DOJ, & On Top Of It All A Few Unqualified Judges Who Discriminate, Cut Corners, & Intentionally Deny Due Process, All Combine To “Tank” Already Low Morale To Incomprehensible Lows!

https://www.cbsnews.com/news/government-shutdown-claims-immigration-judge-paychecks-as-court-morale-hits-a-historic-low/

Kate Smith reports for CBS News:

The nation’s roughly 400 immigration judges are getting hit hard by the government shutdown:

  • They’re about to miss their second paycheck.
  • About three-quarters have been furloughed and unable to work, which means their case backlog is growing.
  • The result: Morale is at a “historic low,” said Ashley Tabaddor, the president of the National Association of Immigration Judges and a Los Angeles-based immigration herself, in an interview with CBS News.

The immigration court docket is split into two categories: Hearings for immigrants who have been detained represent about 5 to 10 percent of the docket. These cases have been uninterrupted during the shutdown and have been overseen by approximately 100 judges who aren’t getting paid.

“I’ve been using the words ‘unprecedented’ and ‘surreal,’ and yet it keeps becoming more unprecedented and more surreal,” said Tabaddor. “It’s so unfortunate that we’ve reached this level of dysfunction.”

Adding to the low morale is a the massive backlog of cases, which has risen by nearly 50 percent since President Trump took office. As of November 30 the backlog stood at just over 800,000 cases, but if the shutdown continues through February it could break one million.

Worse still for the judges is a new quota system announced in October by the Department of Justice. It said that all judges would be required to complete 700 immigration cases in the following year; if they fall behind, their job security could be on the line.

“It’s so disconnected from reality,” said Tabaddor. “Those cases just can’t be completed in the timeframe that the administration is demanding. Frankly, it’s laughable.”

Given that many judges haven’t been able to work for more than a month, will the quota be waived? DOJ hasn’t given any guidance, said Tabaddor.

“It’s not like if you miss a day of work, they work just goes away,” Tabaddor said. “Everyone knows that they minute the shutdown is over, what awaits them is 10 times worse than what they left behind.”

“Judges jobs are on the line if they don’t meet these arbitrary number,” Tabaddor said. “People are very concerned.”

A call and email to the Department of Justice were not returned, but the agency’s website said that press inquiries may not be returned because of the government shutdown.

Currently, most non-detained judges have four to five thousand hearings scheduled through 2021 and in some cases 2022, Tabaddor said, noting that “every single day on their calendar is booked.” Immigrants who had hearings originally scheduled during the shutdown will most likely be forced to wait years before they’re able to get in front of a judge.

Forcing judges to rush through their quotas could have a devastating impact on immigration hearings, said Kate Voigt, the associate director of government relations at the American Immigration Lawyers Association. When forced to choose between their own job security and a through understanding of an individual’s case, many judges have gone with the former, pushing through cases without giving immigrants their due process, Voigt said.

The Department of Justice has “increased pressures on judges to churn out cases at lightning speeds, at the expense of due process and case-by-case determinations,” Voigt said in an email to CBS News.

In Charlotte, North Carolina some judges have refused to hear testimony from female asylum seekers from Central America, citing an now-overturned policy statement from former Attorney General Jeff Sessions that removed domestic and gang violence from admissible asylum criteria, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina, in an interview with CBS News. In one asylum hearing McKinney had last year prior to the government shutdown, Judge Barry Pettino refused to let his client testify, instead denying her asylum case outright because it dealt with gender-based violence, according to McKinney.

“My client didn’t think she was going to win her case, but she certainly didn’t think we were going to be in and out in 45 minutes,” McKinney said. “If the asylum seeker never gets to take the stand under oath, never gets to tell their story, that’s a fundamental due process problem right there.”

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

In the words of the distinguished Judge Tabaddor, “surreal!” Why is it “OK” to have a court operating in the “Twilight Zone” making life or death decisions? How would you like YOUR life or YOUR loved one’s life to be determined by this dysfunctional mess?

Simply shameful! Also completely unnecessary. Trump and the DOJ are totally unqualified to run any court, let alone one with life or death authority. Congress is paralyzed. If the Article IIIs don’t step in, take this over, and require the restoration of at least rudimentary Due Process, there might not be any removals in the future!

How will they “reopen” this mess even when the “Trump shutdown” ends? Why won’t most of the overworked, underpaid, under appreciated, stressed out Court Clerks who keep this (unautomated, paper heavy) “Rube Goldberg Contraption” afloat, and who live paycheck to paycheck, have found new jobs where they are fairly paid and appreciated? Why won’t all the retirement-eligible judges head for the exits where life is better, the paychecks keep coming, and you can actively fight the Trump idiocy?

PWS

01-23-19

 

PWS

01-23-19

Related posts:

  1. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

CHASE, SCHMIDT, & THE REST OF “OUR GANG” READY TO “STEP UP” TO TEACH ASYLUM LAW FOR FURLOUGHED U.S. IMMIGRATION JUDGES! – Read The Latest From Hon. Jeffrey Chase On How Asylum Law Can Be Properly Interpreted To Save Lives (What It’s Supposed To Do) & “Move” Dockets Without Curtailing Anyone’s Rights!

fullsizeoutput_40da.jpeg

 

IJs Grant Gender-Based Asylum Claims

As my friend Paul Schmidt announced on his excellent blog immigrationcourtside.com, immigration judges in San Francisco and Arlington, VA recently issued written decisions granting asylum to victims of domestic violence.  Notably, the decisions concluded that “Mexican females” and “women in Honduras” constituted cognizable particular social groups under applicable case law, including the former Attorney General’s decision in Matter of A-B-.

Asylum advocates have sought for many years to have the Board of Immigration Appeals recognize a particular social group defined by gender alone.  However, the BIA has declined to consider the issue.1 The need for such guidance from the Board has increased significantly since the issuance of Matter of A-B- last June.  Even under the holdings of that decision, gender continues to meet all of the criteria for a cognizable particular social group, as gender is an immutable characteristic fundamental to one’s identity, is sufficiently particular to provide a clear benchmark for inclusion, is socially distinct in all societies, and is not defined by the harm which gives rise to the applicant’s fear of persecution.

In the seven months since Matter of A-B- was issued, the BIA has yet to respond with a precedent decision affirming the continued viability of domestic violence-based asylum claims.  Nor has the BIA affirmed that gender alone may constitute a cognizable particular social group for the above reasons, in spite of the fact that its members have had years to consider the issue, and could rely on so many outstanding legal sources on the topic.  The BIA showed an ability to respond quickly in issuing a precedent decision in only two months time following the Supreme Court’s decision in Pereira v. Sessions.  So the present silence should be interpreted as a specific choice by the BIA to remain silent, likely motivated by its fear of upsetting its higher-ups in the present administration.

In the absence of guidance from the BIA, and while waiting for appeals to work their way through the circuit courts (I am aware of appeals relating to this issue currently pending in the First and Fourth Circuits), the two recent immigration judge decisions are encouraging.  In the San Francisco case, Judge Miriam Hayward (who has since retired from the bench) found “Mexican females” to constitute a cognizable particular social group. In Arlington, Assistant Chief Immigration Judge Deepali Nadkarni made the same finding for the group consisting of “women in Honduras.”  Redacted copies of their written decisions may be read here: http://immigrationcourtside.com/wp-content/uploads/2019/01/SF-IJ-Hayward-DV-PSG-grant.pdf;  http://immigrationcourtside.com/wp-content/uploads/2019/01/Nadkarni-Grant-Women-in-Honduras-PSG.pdf

In addition to their particular social group analysis, both decisions conclude that at least one central reason for the persecution suffered was the asylum applicant’s membership in the gender-defined group.  For example, in the San Francisco case, Judge Hayward found such nexus was established by a combination of specific statements made by the male persecutor (i.e. “a woman’s only job was to shut up and obey her husband,” and “I’m the man and you’re going to do what I say”); a report of an expert on domestic violence citing gender as a motivating factor for domestic violence; and a statement in a multi-agency report that violence against women in Mexico “is perpetrated, in most cases, to conserve and reproduce the submission and subordination of them derived from relationships of power.”

In her decision, Judge Nadkarni held that the size of the group defined by gender does not prevent it from being defined with particularity, and noted that the BIA “has routinely recognized large groups as defined with particularity.”  It also bears mentioning that the ICE prosecutor in Judge Nadkarni’s case “conceded that the Honduran police was unable or unwilling to protect the respondent…” Without such concession in her case, Judge Hayward found that country reports and Mexican law itself were sufficient to establish that the government was unable or unwilling to protect the respondent even under the heightened standard expressed by the former AG in Matter of A-B-.

As I stated in an earlier article, immigration judges have received no guidance or training from EOIR in analyzing domestic violence claims in the aftermath of Matter of A-B-.  As a result, some immigration judges remain uncertain as to whether the law allows them to grant such claims at present.  It is hoped that these decisions will serve as a useful template for judges. It seems particularly instructive that one such decision was issued by Judge Nadkarni, a management-level judge who supervises all immigration judges sitting in the Arlington, Batavia, Buffalo, and Charlotte Immigration Courts, as well as the Headquarters court which hears cases remotely by televideo.  Judge Nadkarni is the direct boss of V. Stuart Couch, the Charlotte-based immigration judge whose refusal to grant asylum as directed by the BIA in Matter of A-B- led to the former Attorney General’s certifying that case to himself.

Congratulations to attorneys Kelly Engel Wells of Delores Street Community Services and Mark Stevens of Murray Osorio PLLC for successfully representing the asylum applicants.

In light of these decisions, and in the absence of guidance from EOIR, our group of former immigration judges and BIA members would be happy to provide sitting judges with outside training and resources on this topic.   Interested judges may contact me, and perhaps we can set up group training sessions for furloughed judged during the present shutdown.

Notes:

  1. See, e.g. Matter of A-R-C-G-, 26 I&N Dec. 388, 395, n. 16, acknowledging the argument of amici “that gender alone should be enough to constitute a particular social group in this matter,” but declining to reach the issue.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.

 

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Thanks Jeffrey! I’m “with you” all the way, my friend!
EOIR would do much better if it were to lose the venomous “(junior) partner of DHS Enforcement, no sympathy, compassion, or kindness for the most vulnerable among us, and scofflaw” persona that it acquired under White Nationalist AG Jeff “Gonzo Apocalypto” Sessions and act more like a real court of law (or at least a fair and impartial quasi-judicial tribunal) again.
While there is zero chance of it happening, soon to be AG Bill Barr (who grotesquely has painted himself as a great admirer of his biased and incompetent predecessor) would do himself and our country a great and lasting service if he hired a retired Federal Judge with a strong record in (positive) humanitarian law, individual due process, and court administration (e.g., a “reincarnation” of the late Judge Patricia Wald) to run and rebuild EOIR with a Due Process, independent adjudication, and judicial efficiency focus, and kept the politicos out of the process, no matter how much they might complain or not like fair results on the “deportation railway.” But, not going to happen till we get “regime change.”
Viewing “law enforcement” as a solemn responsibility to insure that individuals’ rights are protected, individuals are treated fairly regardless of status, creed, gender, or race, and that life-saving protection is generously granted whenever legally possible is as much a part of the Attorney General’s Constitutional responsibility as  booting folks out of the country. It’s sad, disturbing, and very damaging to our country, that so few Attorneys General have taken this responsibility seriously, particularly in recent years.
PWS
01-21-18

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
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PROFESSOR STEPHEN LEGOMSKY IN USA TODAY: Gender Is Clearly a “Particular Social Group” – Congress Must Amend The Law To Insure That Neither Bureaucratic Judges Nor Political Hacks Like Sessions & His Ilk Can Deprive Women & LGBTQ Individuals Of The Protections They Need & Deserve!

https://www.usatoday.com/story/opinion/2019/01/02/gender-related-violence-grounds-asylum-refugee-women-congress-column/2415093002/

When women arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors isn’t an option.

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Our asylum laws have some gaping holes. These gaps endanger many groups, but none more so than women and girls who are fleeing domestic violence, honor killings, mass rape in wartime, gang rape by criminal gangs, and other gender-related violence. Congress must explicitly recognize gender-based persecution as a potential asylum ground.

Asylum requires a “well-founded” fear of being persecuted. But not just any persecution will do. The persecution has to occur for one of five specific reasons — your race, your religion, your nationality, your political opinion, or what the law calls your “particular social group.” Gender is notably missing from this list.

That omission is not surprising. U.S. asylum laws, like those of most other western countries, track the language of an international refugee convention that was adopted in 1951. Gender-related violence was simply not on the public radar at that time.

But it is now 2019. The historical excuse will no longer wash. With women’s marches, the MeToo movement, the Brett Kavanaugh confirmation process and women’s stunning midterm electoral successes, gender-related violence is now part of our national consciousness.

Read more commentary:

As a Syrian refugee in US, I watched my country collapse. But there is a path to hope.

Refugees at US-Mexico border are treated like criminals

Bring more refugees to America. They’ll fill vacant jobs and boost our economy.

Without specific congressional recognition of gender-based persecution, women and girls fleeing the most horrific violence imaginable have had to argue that they will be persecuted because of their “particular social group.” Today that is easier said than done. The nation’s highest administrative tribunal that decides asylum claims — the Justice Department’s Board of Immigration Appeals — has been adding more andmore roadblocks to asylum claims that are based on “particular social group.”

This was not always the case. In 1985, the board defined “particular social group” as one in which membership is “immutable.” Gender, of course, meets that definition.

The immutability test makes perfect sense. If you will be persecuted only because of an innocuous characteristic that you can easily change, then you don’t need asylum. But if that characteristic cannot be changed, you have no other practical way to protect yourself. The immutability test thus allows asylum for those who need it and withholds it from those who don’t.

Justice constraints are harmful, irrational

But the board could not leave well enough alone. Along the way it invented two additional requirements. One is “social distinction.” If you claim persecution because of your membership in a “particular social group,” you must now prove that your home society describes that class of individuals as a “group.” Second, you must now prove what the board calls “particularity.” By this it means you must prove that your home society can figure out whether hypothetical other individuals are members of the group.

There are only four problems with those requirements: The board has no convincing legal authority to impose them. No one really understands what they mean. They are nearly impossible to prove. And they make no policy sense: why should the U.S. decision whether to grant asylum to someone depend on whether her home society thinks of the particular class as a “group,” or on whether the home society can tell which other individuals belong to that “group”?

Last June, then-Attorney General Jeff Sessions made this bad situation worse. Overruling board precedent, he announced that, henceforth, anyone fleeing domestic violence (or, for that matter anyone fleeing gang violence) will “generally” be unable to prove either social distinction or particularity and therefore should be denied asylum. Although a federal court has blocked that decision for now, the Supreme Court will likely determine its ultimate fate.

But the problems go beyond that specific case. First, the artificial constraints that the board has imposed for all claims based on “particular social group” are both harmful and irrational. Second, it is only because gender is not on Congress’s list of specifically protected grounds that women and girls have had to fit their claims into “particular social group” in the first place.

Women would still prove need for asylum

What arguments could possibly be made for protecting people from racial or religious persecution but not from gender persecution?

Perhaps the fear is that domestic violence is too endemic, that allowing asylum would open the floodgates. We need not worry, for a woman or girl fleeing domestic violence has multiple legal burdens that minimize the numbers: She must prove that her fear is both genuine and well-founded, that the harm she fears is severe, that her government is unable or unwilling to protect her, that no place anywhere in her country would be safe, and — even if gender is added to the list — that the persecution will be inflicted because of her gender. These are all high bars, and proof requires meticulous, persuasive documentation. Canada has recognized domestic violence asylum claims since the 1990s, and no floodgates have opened.

The U.S. cannot singlehandedly eradicate all violence against women and girls — even here at home. But we can at least avoid being an accomplice. When women and girls arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors is not an option. Congress should restore the original meaning of “particular social group,” and it should recognize that gender, like race and religion, belongs in the list of specifically protected grounds.

Stephen Legomsky is a professor emeritus at the Washington University School of Law, the principal author of “Immigration and Refugee Law and Policy,” and the former Chief Counsel of US Citizenship and Immigration Services in the Obama Administration.

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Steve is absolutely right! This needs a legislative solution. And, while they are at it, Congress also needs to insulate the Immigration Court against future bureaucratic and political shenanigans by creating an independent Article I Immigration Court with a merit-based judicial selection system.

Not coincidentally, the BIA added the intentionally unduly restrictive “particularity” and “social distinction” (formerly “social visibility”) requirements (remarkably, without dissent or even full en banc treatment) only after a group of BIA Judges, including me, who understood both asylum law and women’s rights, and weren’t afraid to vote accordingly, had been removed by Attorney General Ashcroft in a bogus and disingenuous politically motivated “downsizing” following the election of President George W. Bush in 2000. Since then, asylum seekers generally have had a hard time finding justice at the “captive” and politically controlled BIA.

And, the situation has become critical following the tenure of the White Nationalist, misogynist political hack Jeff Sessions as Attorney General. Sessions abandoned even the pretense of fairness, deliberation, impartiality, and judicial temperament in his anti-asylum, anti-Due-Process, anti-women campaign to rewrite the law to fit his preconceived White Nationalist xenophobic agenda — one that he (understandably & fortunately) never was able to push through Congress during his tenure as a Senator.

PWS

01-04-19

 

 

 

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  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
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