EOIR SHAKEUP: Chief Immigration Judge, Deputy Director, General Counsel Ousted!

EOIR SHAKEUP:  Chief Immigration Judge, Deputy Director, General Counsel Ousted!

By Paul Wickham Schmidt for Immigrationcourtside.com

Alexandria, VA, June 8, 2019.  The nation’s totally dysfunctional and highly politicized Immigration Court System, known as the Executive Office For Immigraton Review (“EOIR”), has ousted three of its top career senior executives, according to a report filed yesterday by Nicole Narea of Law360. Here’s a link to Narea’s story for those with Law360 access. https://www.law360.com/articles/1166974/three-senior-eoir-officials-to-step-down.

Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions. 

Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan” to demean and degrade Immigration Judges and Appellate Immigraton Judges at the Board of Immigration Appeals, strip them of the last vestiges of judicial independence and docket control, and return the Immigration Courts to their pre-EOIR status as perceived appendages of DHS (then INS) enforcement.

Keller supposedly “retired,” an unusual move given her age group and that senior executives are the civil service equivalent of brigadier generals. King was transferred to the Office of the Chief Administrative Hearing Officer (OCAHO”), long known as the “Siberia of EOIR” and a repository for prior senior executives who had fallen out of favor with “EOIR Management” and their DOJ “handlers.” Reilly reportedly transferred to a senior executive position with the U.S. Postal Service (“USPS”), another surprising move for a top senior executive attorney at the DOJ. 

Predictably, there has been no official announcement from EOIR or the DOJ, nor have any replacements been named. Meanwhile, the backlog mushrooms, morale sinks further, conditions continue to deteriorate, and due process and fundamental fairness are mocked every day in the EOIR “courts” and also by life-tenured Article III Judges who are willing to “rubber stamp” the results of this patently illegal and unjust system.

Keller, King, and Reilly have “escaped from the circus.” But, hopefully there someday will be accountability for those throughout government and the Article III Courts who continue to participate in, enable, and further this ongoing farce and the resulting gross perversion of American law and human values. 

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAYS BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS NEW DUE PROCESS ARMY

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the worlds best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called courtsin places where no legal services are available, using a variety of largely untrained judges,themselves operating on moronic and unethical production quotas,many appearing by poorly functioning and inadequate televideo? Would a real court system put out a fact sheetof blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of justice on a deportation railroaddesigned to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally hostile environmentfor migrants and their attorneys.

This hostility particularly targets the most vulnerable among us asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years failed policies that we now are mindlessly doubling downupon.

My friends have given you the law.  Now, Im going to give you the facts.Lets go over to the seamy underside of reality,where the war for due process and the survival of democracy is being fought out every day. Because we cant really view the travesty taking place at the BIA as an isolated incident. Its part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in todays weaponized”  Immigration Courts.

I, of course, hold harmless the FBA, the Burmanator,my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, Its me baby, with your wake-up call.

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic dumbed downregime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the realArticle III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the crapshoot worldof todays BIA, you might win.

After the Ashcroft Purge of 03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, a facade of quasi-judicial independence.But, amazingly, it has gotten even worse since then. The facadehas now become a farce” – “judicial dark comedyif you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further dumb downthe BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be packed with more restrictionist judges,decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be gamedso that any two hard lineBoard judges,acting as a fake panelwill be able to designate anti-asylum, anti-immigrant, and pro-DHS precedentswithout even consulting their colleagues.

Even more outrageously, Barr and his do-beesover at the Office of Immigration Litigation (OIL) intend to present this disingenuous mockery as the work of an expert tribunaldeserving so-called Chevron deference.Your job is to expose this fraud to the Article IIIs in all of its ugliness and malicious incompetence.

Yes, I know, many realFederal Judges dont like immigraton cases. Tough noogies” — thats their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their comfort zonesso that they can get to yesfor your client. But, this assumes a system operating professionally and in basic good faith. In the end, its not about fulfilling the judges or opposing counsels career fantasies or self-images. Its about getting Due Process and justice for your client under law.

And, if Article III judges dont start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessionss case, that included references to dirty attorneysrepresenting asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what justice systemis the chief prosecutorallowed to reach in and change results he doesnt like to favor the prosecution? Its like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents.  In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in todays Immigration Courts.  This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that courts one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the Dred Scottificationof foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of malicious incompetencealong with a concerted effort to make foreign nationals non-personsunder the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to de-personizeand effectively de-humanizeminority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the due process hit list.

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart                                                                                                                                                                                                                                                                                                                                                                                                                                                                            it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the  precedents resulting from Sessionss and Barrs unethical participation in the quasi-judicial process;  3) make the historical record; and 4)  fight Dred Scottification.”  

I also encourage all of you to read and subscribe (its free) to my blog, immigrationcourtside.com, The Voice of the New Due Process Army.If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on Courtside.

Folks, the antidote to malicious incompetenceis righteous competence. The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided enforce and detain to the maxpolicies, with resulting Aimless Docket Reshuffling,intentionally jacked upand uncontrollable court backlogs, and dumbed downjudicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.  

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, injustice anywhere is a threat to justice everywhere.

The Immigration Courts once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! Malicious incompetencenever!

(05-17-19)

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PWS

05-20-19

 

THE ASYLUMIST WEIGHS IN ON EOIR’S “FACT SHEET:” “Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun?”

http://www.asylumist.com/2019/05/15/the-myths-and-facts-that-eoir-does-not-want-you-to-see/

Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.

I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.

EOIR has released a new “Myths vs. Facts” brochure.

This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:

Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more.
Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that  Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.

Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream.
Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.

Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS.
Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!

Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget.
Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.

Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration.
Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…

So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?

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Jason is absolutely correct. Truth eventually will win out.
But, some have already died or been irreparably harmed, and other migrants will be needlessly sacrificed on the alter of nativist White Nationalism before this corrupt Administration eventually is removed.
We have already diminished ourselves as a nation. Will we ever recover? Will those responsible at EOIR, DOJ, DHS, Congress, the Article III Courts, and elsewhere ever be held fully accountable for their lies and corrupt roles in trashing human rights and our Constitution?
PWS
05-17-19

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!

https://www.washingtonpost.com/politics/2019/04/30/trumps-asylum-changes-are-even-less-desired-than-his-border-wall/

Aaron’s Blake reports for the Washington Post:

President Trump has made immigration crackdown a central focus of his presidency, and a new Washington Post-ABC News poll shows a growing number of Republicans and Democrats agree that the worsening situation on the border is a “crisis.”

But Trump is offering a solution that relatively few Americans like. In fact, his newly announced decision to make it harder to seek asylum is even less popular than his border wall national emergency, according to the same poll.

The Post-ABC poll shows that 30 percent of Americans favor making it more difficult for those seeking asylum in the United States to obtain it. About as many — 27 percent — favor making it easier, while 34 percent want to leave the process as-is.

Even among Republicans, just 46 percent favor making it more difficult. Among the few groups where a majority support the idea are conservative Republicans (51 percent) and those who approve of Trump (53 percent). Even in the latter group, though, 29 percent say leave the system as-is, and 11 percent want to make it easier to seek asylum.

Late Monday, the White House announced that it was proposing a new fee for asylum seekers. It is also seeking to prevent those who cross the border illegally from obtaining work permits, and it set the ambitious goal of requiring asylum cases to be decided within 180 days.

There has been a huge uptick in the number of asylum seekers in recent months. More than 103,000 immigrants crossed the U.S.-Mexico border last month, and 60 percent of them were Central American families who have requested asylum. The system has become overburdened, and even critics of Trump’s immigration approach acknowledge the situation must be addressed.

But saying there’s a problem and saying this is the solution are two different things. Trump has repeatedly argued that asylum seekers are exploiting weak U.S. immigration and asylum laws and that many of them are criminals and gang members who are told to claim asylum even though they don’t need it. He has called the concept of asylum “a big con job.” Yet, even as the situation at the border is exacerbated by a growing number of asylum seekers, Americans are still clearly uncomfortable with increasing the burdens on them.

Because the poll was conducted before Trump’s announcement, it didn’t test the specific details of his proposal. A fresh debate about the specific proposals could feasibly change the levels of public support. But Trump has been pushing the idea that asylum seekers are exploiting the system for months, and it doesn’t seem to have led to a chorus of support within his base for tightening the rules.

The level of support is even less than the backing for his national emergency to build a border wall. The Post-ABC poll shows just 34 percent of Americans favor that, while 64 percent oppose it. But at least on that proposal, Trump’s base is strongly onboard. Seventy percent of Republicans back the border wall national emergency.

Trump’s overall approval on immigration stands at 39 percent, with 57 percent disapproving, according to The Post-ABC poll.

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Bottom line: On asylum, the public essentially is split in thirds among 1) more generous; 2) less generous; and 3) current system. That means that neither radical retractions nor radical expansions of the current system are likely to be achievable at present. That opens the door for the Dems to put together a powerful coalition to strengthen and fairly and efficiently administer the current asylum system.  

It’s not rocket science — more like basic governing competence. Here are the elements:

  • Establish an independent Article I U.S. Immigration Court;
  • Invest in representation of asylum seekers; 
  • Add more Asylum Officers, Immigration Judges, and Port of Entry Inspectors;
  • Provide comprehensive basic and continuing training for all asylum adjudicators from experts in asylum law;
  • Use prosecutorial discretion (“PD”) to reduce Immigration Court backlogs to allow Immigration Judges to concentrate on timely hearings for recently arrived asylum cases;
  • Reduce immigration detention;
  • Hire more anti-smuggling, undercover, and anti-fraud agents for DHS;
  • Invest in improving conditions in “sending” countries in Central America.

It would 1) cost less than the money Trump is now squandering on “designed to fail” enforcement and detention efforts; 2) create a political constituency for funding and future improvements; 3) protect human rights; and 4) give the U.S the substantial benefits of integrating asylees and their talents into our society and economy through the legal system. Those found ineligible could also be removed in a humane and timely manner after receiving due process.

Not surprisingly, we just learned today that Trump’s “Malicious Incompetence Program” at the border has run out of money and is requesting another $4.5 billion from Congress. https://www.washingtonpost.com/business/economy/white-house-asks-congress-for-45-billion-in-emergency-spending-for-border/2019/05/01/725e2864-6c23-11e9-8f44-e8d8bb1df986_story.html

Now is the time for House Dems to hang tough on demanding some real border security for the money — in plain terms, require the money to be spent in exactly the ways described above, not on more of Stephen Miller’s White Nationalist, anti-asylum schemes and gimmicks.  

Additionally, there should be specific prohibitions on: 1) wall and barrier building beyond what Congress has already authorized; 2) any additional spending for detention of non-criminal asylum applicants beyond the time needed to give them credible fear interviews; 3) family detention; 4) “tent cities;’ 5) “Remain in Mexico,” 6) “metering” of asylum applicants at Ports of Entry; 6) charging fees for asylum applications; 7) denial of work authorization for non-frivolous asylum applicants; 8) denial of reasonable bond to asylum applicants unless individually determined to be “threats to the community;” and 9) use of the military except to assist in providing humanitarian aid. There should also be a specific mechanism for accounting and constant Congressional oversight on how the Administration spends the extra funding.   

PWS

05-01-19

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!”

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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE

Despite the concern about the number of families arriving at the border seeking asylum, families continue to remain a minor proportion of new cases arriving at the Immigration Courts each month. For example, during March 2019, just 18.7 percent of the new cases that came in involved these families. Despite this, the court’s backlog continues to climb and reached a new historic high of 869,013 cases on its active docket at the end of March.

After being released in border communities, families seldom remain there. Since September 2018, 32 courts in 24 states have received at least 100 new family cases. Over half of these cases are before courts headquartered in sanctuary cities. Among the top ten courts where family cases are located, six are usually classified as sanctuary jurisdictions. These courts include those in New York City, San Francisco, Los Angeles and Chicago.

These results are based upon the latest court records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data were obtained from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act (FOIA).

Full data on what happens to families after they are arrested at the border, however, are not available. The Justice Department has now stopped providing TRAC with information needed to track the processing of asylum and related applications for relief. Information both on historical as well as new asylum applications are now being withheld during this review.

In addition, the government admits it lacks the ability to reliably follow cases when they are transferred from one agency to another. Without this information, agency officials are unable to effectively manage the situation. This appears to parallel the difficulties the government has had in reuniting children separated from their parents because separate record systems didn’t pass along relevant information.

For the full report, go to:

https://trac.syr.edu/immigration/reports/556/

In addition, a number of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through March 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:

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

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

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

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

http://facebook.com/tracreports

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

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

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
https://trac.syr.edu

———————————————————————————
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

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Senator Ron Johnson (R-WI), the DHS “Advisory Committee,” and other Trump Apologists to the contrary, neither arriving families nor the current asylum law are the problems (except that the Administration fails to apply the current asylum law and procedures fairly). No, the problem is the “malicious incompetence” of the Trump kakistocracy in the White House, at DHS, and in the DOJ.

Democrats must take care not to be “stampeded” by Trump’s bogus White Nationalist narrative (even parroted by some members of the “mainstream press”) into changing asylum laws to further screw asylum seekers. Rather they need to stand firm on insisting that the Trump Administration follow existing laws on asylum, protection of unaccompanied minors, and other forms of humanitarian protection.

There isn’t going to be a “grand bargain’ on immigration until the Trump kakistocracy and its enablers are removed from power. And “border security” does not require a reduction or truncation of the rights of migrants and asylum seekers as a “trade-off” for legalization programs.

Actually, clearing intentionally and maliciously overcrowded Immigration Court dockets of cases of individuals whose removal actually hurts the U.S. and figuring out a way of getting more of these folks we need into the legal immigration system right off the bat (instead of forcing them into the “immigration black market”) are essential parts of any border security program.

What real border security does require is a competent focus on making the asylum adjudication system and the Immigration Court system function in accordance with protection laws, Due Process, and fundamental fairness. A fair, timely, and efficient Immigration Court system serves everyone’s needs, including DHS enforcement.

Fair, impartial, and independent judges who are not controlled by politicos with a White Nationalist agenda would be the basic starting point. It also includes a fair application of the law to include gender based persecution and persecution by gangs and other entities exercising quasi-governmental authority in “failed states.” Indeed, if any “clarifications” are made in asylum law it should be to specifically write these interpretations into the refugee definition as was done by a bipartisan group of legislators in the past who were dissatisfied with the administrative failure to include victims of persecution in the form of coercive family planning in the refugee definition.

PWS

04-21-19

BILL BARR – Unqualified For Office – Unfit To Act In A Quasi-Judicial Capacity

BILL BARR – Unqualified For Office – Unfit To Act In A Quasi-Judicial Capacity

There have been many articles pointing out that Bill Barr unethically has acted as Trump’s defense counsel rather than fulfilled his oath to uphold the Constitution and be the Attorney General of all of the American people. There have also been some absurdist “apologias” for Barr some written by once-respected lawyers who should know better, and others written by the normal Trump hacks.

Here are my choices for four of the best articles explaining why Barr should not be the Attorney General. It goes without saying that he shouldn’t by any stretch of the imagination be running the Immigration Court system. His intervention into individual cases in a quasi-judicial capacity is a clear violation of judicial ethics requiring avoidance of even the “appearance” of a conflict of interest. There is no “appearance” here. Barr has a clear conflict in any matter dealing with immigration.

 

http://nymag.com/intelligencer/2019/04/impeach-attorney-general-william-barr.html

Congress Should Impeach William Barr

Attorney General William Barr. Photo: Brendan Smialowski/AFP/Getty Images

House Democrats are going to face a difficult decision about launching an impeachment inquiry into President Trump. Balanced against the president’s impressive array of misconduct is the fact that several more criminal investigations that may add to the indictment are already underway, and that impeaching the president might jeopardize the reelection of red-state Democratic members. But in the meantime, Attorney General William Barr presents them with a much easier decision. Barr has so thoroughly betrayed the values of his office that voting to impeach and remove him is almost obvious.

On March 24, Barr released a short letter summarizing the main findings of the Mueller investigation, as he saw them. News accounts treated Barr’s interpretation as definitive, and the media — even outlets that had spent two years uncovering a wide swath of suspicious and compromising links between the Trump campaign and Russia — dutifully engaged in self-flagellation for having had the temerity to raise questions about the whole affair.

Barr had done very little to that point to earn such a broad benefit of the doubt. In the same role in 1992, he had supported mass pardons of senior officials that enabled a cover-up of the Iran–Contra scandal. Less famously, in 1989 he issued a redacted version of a highly controversial administration legal opinion that, as Ryan Goodman explained, “omitted some of the most consequential and incendiary conclusions from the actual opinion” for “no justifiable reason.”

And while many members of the old Republican political Establishment had recoiled against Trump’s contempt for the rule of law, Barr has shown no signs of having joined them. He met with Trump to discuss serving as his defense lawyer, publicly attacked the Mueller investigation (which risked “taking on the look of an entirely political operation to overthrow the president”), called for more investigations of Hillary Clinton, and circulated a lengthy memo strongly defending Trump against obstruction charges.

The events since Barr’s letter have incinerated whatever remains of his credibility. The famously tight-lipped Mueller team told several news outlets the letter had minimized Trump’s culpability; Barr gave congressional testimony hyping up Trump’s charges of “spying,” even prejudging the outcome of an investigation (“I think there was a failure among a group of leaders [at the FBI] at the upper echelon”); evaded questions as to whether he had shared the Mueller report with the White House; and, it turns out, he’s “had numerous conversations with White House lawyers which aided the president’s legal team,” the New York Times reports. Then he broke precedent by scheduling a press conference to spin the report in advance of its redacted publication.

It is not much of a mystery to determine which officials have offered their full loyalty to the president. Trump has reportedly “praised Barr privately for his handling of the report and compared him favorably to former Attorney General Jeff Sessions” —whose sole offense in Trump’s eyes was following Department of Justice ethical protocol. Trump urged his Twitter followers to tune in to Barr’s conference, promotional treatment he normally reserves for his Fox News sycophants.

The press conference was the final disqualifying performance. Barr acted like Trump’s defense lawyer, the job he had initially sought, rather than as an attorney general. His aggressive spin seemed designed to work in the maximal number of repetitions of the “no collusion” mantra, in accordance with his boss’s talking points, at the expense of any faithful transmission of the special counsel’s report.

Barr’s letter had made it sound as though Trump’s campaign spurned Russia’s offers of help: “The Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign,” he wrote. In fact, Mueller’s report concluded, “In some instances, the Campaign was receptive to the offer,” but that the cooperation fell short of criminal conduct.

Where Mueller intended to leave the job of judging Trump’s obstructive conduct to Congress, Barr interposed his own judgment. Barr offered this incredible statement for why Trump’s behavior was excusable: “[T]here is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” Barr said. “Nonetheless, the White House fully cooperated with the Special Counsel’s investigation,” and credited him further with taking “no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation.”

Sincere? How can Barr use that word to describe the mentality of a man whose own staffers routinely describe him in the media as a pathological liar? Trump repeatedly lied about Russia’s involvement in the campaign, and his own dealings with Russia. And he also, contra Barr, repeatedly denied the special counsel access to witnesses by dangling pardons to persuade them to withhold cooperation.

It is true that many of Trump’s attempts to obstruct justice failed. As Mueller wrote, the president’s “efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”

This is a rather different gloss on the facts than the happy story Barr offered the press. What’s more, it is a pressing argument for Barr’s own removal. Next to the president himself, the attorney general is the most crucial actor in the safeguarding of the rule of law. The Justice Department is an awesome force that holds the power to enable the ruling party to commit crimes with impunity, or to intimidate and smear the opposing party with the taint of criminality.

There is no other department in government in which mere norms, not laws, are all that stand between democracy as we know it and a banana republic. Barr has revealed his complete unfitness for this awesome task. Nearly two more years of this Trumpian henchman wielding power over federal law enforcement is more weight than the rickety Constitution can bear.

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

Dvid Leonhardt of the NY Times writes:

In the years after Watergate, Justice Department officials — from both parties — worked hard to banish partisan cronyism from the department. Their goal was to make it the least political, most independent part of the executive branch.

“Our law is not an instrument of partisan purpose,” Edward Levi, Gerald Ford’s attorney general, said at the time. Griffin Bell, later appointed to the same job by Jimmy Carter, described the department as “a neutral zone in the government, because the law has to be neutral.”

Attorney General William Barr clearly rejects this principle. He’s repeatedly put a higher priority on protecting his boss, President Trump, than on upholding the law in a neutral way. He did so in his letter last month summarizing Robert Mueller’s investigation and then again in a bizarre prebuttal news conference yesterday. As The Times editorial board wrote, Barr yesterday “behaved more like the president’s defense attorney than the nation’s top law-enforcement officer.”

Throughout his tenure, Barr has downplayed or ignored the voluminous evidence of Trump’s wrongdoing — his lies to the American people, his willingness to work with a hostile foreign country during a presidenial campaign, his tolerance of extensive criminal behavior among his staff and his repeated efforts to obstruct an investigation. Barr even claimed that Trump “fully cooperated” with that investigation, which Vox’s Ezra Klein notes is “an outright lie.”

Since he took office, Trump has made clear that he wants an attorney general who acts as first an enforcer of raw power and only second as an enforcer of federal law. In Barr, Trump has found his man. Together, they have cast aside more than four decades worth of Justice Department ideals and instead adopted the approach of Richard Nixon.

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

https://www.huffpost.com/entry/william-barr-misled-public-mueller-report_n_5cb8b2b0e4b032e7ceb60d05

The Ways William Barr Misled The Public About The Mueller Report

Instead of just releasing the special counsel’s findings, the U.S. attorney general spun the report to the benefit of President Trump.
Letting this farce of a “judicial system” continue unfairly endangering individual lives and deferring to officials who are neither subject matter experts nor fair and impartial quasi-judicial decision makers is unconstitutional. By letting it continue, life-tenured Federal Judges both tarnish their reputations and fail to fulfill their oaths of office.
As a young attorney in the Department of Justice during the Watergate Era, I, along with many others, were indelibly impressed and inspired when then Attorney General Elliot Richardson and his Deputy William Ruckelshaus resigned rather than carry out Nixon’s illegal order to fire the Watergate Special Prosecutor (a/k/a/ “The Saturday Night Massacre”). Obviously, Barr has dragged the Department and its reputation down to new depths — back to the days of Nixon and disgraced (and convicted) Attorney General “John the Con” Mitchell, who actually planned criminal conspiracies in his fifth floor office at the DOJ.
Obviously, there are systemic problems that have allowed unqualified individuals like Barr and Sessions to serve in and co-opt the system of justice, and denigrate the Department of Justice. (I spoke to some recently retired DOJ officials who characterized the morale among career professionals at the DOJ as “below the floor”). Some of those can be traced to the lack of backbone and integrity in the “Trump GOP” which controls the Senate and refuses to enforce even minimal standards of professionalism, meaningful oversight, and independent decision making in Trump appointees. That’s what a “kakistocracy” is. It’s up to the rest of us to do what is necessary under the law to replace the kakistocracy with a functioning democracy.
PWS
04-20-19

DC CIRCUIT: Beginning Of The End For Broken & Biased U.S. Immigration Court System? — Court Slams Military Tribunals For Same Type Of Patent Lack Of Impartiality Present In Immigration Court On A Daily Basis — “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.” — Aggressive Role, Control Of Enforcement-Biased AG’s Over Immigration Courts Appears In Conflict With Article III Court’s Reasoning!

https://www.washingtonpost.com/world/national-security/in-a-setback-for-guantanamo-court-throws-out-years-of-rulings-in-uss-cole-case/2019/04/16/6c63e052-606b-11e9-bfad-36a7eb36cb60_story.html

Missy Ryan reports for the Washington Post:

A federal court dealt a major blow to the Guantanamo Bay military commissions Tuesday, throwing out more than three years of proceedings in the case against the alleged mastermind of the 2000 bombing of the USS Cole.

In a unanimous decision, a three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit ruled that former military judge Vance Spath “created a disqualifying appearance of partiality” by pursuing a position as an immigration judge while also overseeing the case.

The judges also voided an order issued by Spath that sought to require two defense attorneys for the defendant, Abd al-Rahim al-Nashiri, to return to the case against their will.

The ruling is the latest blemish for the troubled commissions set up in the wake of the Sept. 11, 2001, attacks to try prisoners held at Guantanamo Bay, Cuba. Of a once-vast detainee population there, only 40 inmates remain. Nearly two decades after the attacks, the start of the trial of 9/11 suspects remains far off amid seemingly endless legal wrangling and procedural delays.

Nashiri, a Saudi national in his 50s, faces a possible death penalty for his alleged orchestration of a string of plots to bomb Western vessels, including the Cole attack, which killed 17 Americans. After his capture, Nashiri was subject to extensive torture in CIA custody.

“Many years ago, when Abd al-Rahim first heard he was being handed over to the Americans, he was actually happy because he thought the United States was a country of laws and rights and that he’d at least be treated fairly,” said Navy Lt. Alaric Piette, a member of Nashiri’s defense team. “Finally, after 16 years, with this ruling, that has actually happened. Which is to say that this will mean a lot to him.”

A year into his involvement in the case, Spath meanwhile quietly applied to the Justice Department for a position as an immigration judge. Such judges are appointed by the attorney general.

The D.C. Circuit judges, in a stinging rebuke, responded this week by throwing out rulings in the case from the commission and at least some from its appeals body, beginning at the moment when Spath initiated his job application in November 2015.

“This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality,” Tatel wrote.

The CMCR is the Guantanamo appeals body. Tatel was joined on the panel by Judges Judith Rogers and Thomas Griffith.

Michael Paradis, an attorney who represented Nashiri in the D.C. Circuit case, said the opinion revealed the judges’ frustration “that the system is cavalier about such basic roles and so broken as a consequence. The whole thing has become so shambolic.”

The government could appeal the ruling. A spokeswoman for the Justice Department declined to comment on pending litigation.

Spath’s successor on the military court also left to become an immigration judge.

Devlin Barrett, Maria Sacchetti and Nick Miroff contributed to this report.

**************************************
Legislative reform establishing an independent Article I Immigration Court outside the Executive Branch should be a bipartisan “no-brainer.”
Instead, while Congress diddles, the misdirected and mismanaged U.S. Immigration Courts under the DOJ continue full steam toward operational and legal disaster.  Without a timely Congressional remedy, that could eventually leave the entire removal system in the hands of the Article IIIs.
Notably, the “precipitating event” here was the Military Judge applying to the DOJ to become an Immigration Judge while handling a case in which the DOJ had an interest.
How about Attorneys General who have taken “point position” on the Administration’s harsh and often illegal immigration enforcement initiatives intervening in individual cases (sometimes over the objection of both parties) to change results to give DHS Enforcement, a party, a victory? Or, that all Immigration Judges are selected, evaluated, assigned, and directed by the Attorney General, a non-quasi-judicial official who is the “chief enforcer” and “chief prosecutor?”
Time for the U.S. Immigration Courts to be required to comply with Due Process!
PWS
04-17-19

 

PODCAST “REVEALS” DUE PROCESS DISASTER IN IMMIGRATION COURTS, PARTICULARLY FOR TRANSGENDER INDIVIDUALS — Deep Seated Problems Existed — This Administration Made Them Worse!

https://www.revealnews.org/episodes/trans-national-migration/

Trans National Migration

Co-produced with PRX Logo

We examine the record of one of the toughest immigration judges in the country, including the surprising way her decisions benefited transgender asylum-seekers. Then we follow one transgender woman who flees El Salvador for the United States to try to claim asylum.

Our final story takes us to Turkey, and focuses on a small but growing group of refugees seeking a new life: young Afghan women fleeing abuse, forced marriage and persecution in their homeland. Reporter Fariba Nawa tells the story of Hoor, who made the dangerous journey into Turkey alone, only to be assaulted by an Afghan man in Istanbul. Against all odds, Hoor sought justice for her abuser and ultimately prevailed.

Credits

Our first story about an immigration judge who ruled on hundreds of cases involving transgender asylum seekers was reported and produced by Patrick Michels and edited by Brett Myers.

Our second story about a transgender woman who fled El Salvador was reported by Alice Driver. It was produced by Casey Minor with help from Emily Harris and Amy Isackson and was edited by Brett Myers.

Our story about Afghan female migrants was reported and produced by Fariba Nawa and edited by Taki Telonidis.

Our production manager is Najib Aminy. Original score and sound design by Jim Briggs and Fernando Arruda, who had help from Kaitlin Benz and Katherine Rae Mondo.

Support for Reveal is provided by the Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the John S. And James L. Knight Foundation, the Heising-Simons Foundation and the Ethics and Excellence in Journalism Foundation.

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Please click the link at the top to listen.

My takeaways:

  • The lack of sensitivity training and proper application of the legal standards for asylum that was allowed to go on for many years in this Immigration Courtroom is appalling;
  • The BIA, whose job is supposed be insuring that individuals’ Due Process rights are respected and asylum law is applied in a fair and impartial manner, failed to do its job;
  • The qualification of individuals for asylum based on gender classifications has been well established since Matter of Tobago-Alfonso, 20 I&N Dec. 819 (BIA 1990) was published (at the direction of then-Attorney General Janet Reno) in 1994;
  • LGBTQ cases were well-documented, credible, and routinely granted by the U.S Immigration Judges at the Arlington Immigration Court during my tenure there;
  • I don’t remember ever denying a transgender case — most were either stipulated or agreed upon by the DHS Office of Chief Counsel — yet EOIR failed to institutionalize those “best practices” that would have promoted justice, consistency, and efficiency;
  • Immigration Judges are bound to follow not only BIA precedents, but also the precedents by the U.S. Circuit Courts in the jurisdiction where they sit — that obviously was not happening here — a clear violation of both law and ethics;
  • You can see the difference when an Immigration Judge does listen, properly applies the law in the generous manner dictated by the Supreme Court in INS v. Cardoza-Fonseca and the BIA in Matter of Mogharrabi, and gives the respondent “the benefit of the doubt” as set forth in the U.N. Handbook on the Refugee Convention;
  • The difference in people’s lives and the benefits to the U.S. when judges properly apply asylum law to protect individuals, as intended, is obvious;
  • Those without lawyers and those held in long-term detention are being treated unfairly and not in accordance with Due Process;
  • This system needs reform so that it operates independently, impartially, and under the legal standards established by law and by Article III Circuit Courts;
  • Immigration Judges who are biased against asylum seekers must be uniformly reversed and “outed” by a real Appellate Tribunal, not the current “go along to get along” version of the BIA;
  • Judges who unwilling to threat asylum applicants and other foreign nationals fairly should not be reappointed to the bench in a competitive, merit-based process;
  • Trump’s recent “we don’t need no stinkin’ judges for asylum cases” rhetoric is as absurd as it is ignorant, unconstitutional, and damaging to both our precious  justice system and vulnerable human beings who need and are legally entitled to our protection.

Many thanks to Lawrence University Scarff Professor of Government Jason Brozek for bringing this highly relevant podcast to my attention.

I am at Lawrence University (my alma mater) in Appleton, WI for two weeks as the Scarff Family Distinguished Visiting Professor. Jason and I currently are teaching a “mini-seminar” in Kasinga/FGM/Gender-Based Asylum in the Government Department at Lawrence. This podcast is directly relevant and “breathes life” into the issues we have been discussing with the wonderfully talented and engaged students in our class.

PWS

04-07-19

 

 

 

TRUMP’S MALICIOUS INCOMPETENCE IS THE REAL “SOUTHERN BORDER CRISIS” — AND, A GENUINE HUMAN TRAGEDY — The Legal Tools To Address The Crisis In The Northern Triangle Causing A Refugee Flow Exist; This Administration Stubbornly Refuses To Use Them!

TRUMP’S MALICIOUS INCOMPETENCE IS THE REAL “SOUTHERN BORDER CRISIS” — AND, A GENUINE HUMAN TRAGEDY — The Legal Tools To Address The Crisis In The Northern Triangle Causing A Refugee Flow Exist; This Administration Stubbornly Refuses To Use Them!

By Paul Wickham Schmidt

United States Immigration Judges (Retired)

In short, families are coming to ports of entry and crossing the border to turn themselves in to be screened for credible fear and apply for asylum under our existing laws. That’s not a “border crisis;” it’s a humanitarian tragedy. It won’t be solved by more law enforcement or harsher measures; we’re actually quite fortunate that folks still believe in the system enough to voluntarily subject themselves to it.

Most don’t present any particular “danger” to the U.S. They are just trying to apply for legal protection under our laws. That’s something that has been denied them abroad because we don’t have a refugee program for the Northern Triangle. This Administration actually eliminated the already inadequate one we had under Obama.

Certainly, we have enough intelligence to know that these flows were coming. They aren’t secret. There was plenty of time to plan.

What could and should have been done is to increase the number of Asylum Officers and POE Inspectors by hiring retired Asylum Officers, Inspectors, adjudicators, and temps from the NGO sector who worked in the refugee field, but no longer have anything to do overseas since this Administration has basically dismantled the overseas refugee program.

A more competent DOJ could also have developed a corps of retired Immigration Judges (and perhaps other types of retired judges who could do bond setting and other functions common to many judicial systems) who already “know the ropes” and could have volunteered to go to the border and other places with overloads.

Also, working closely with and coordinating with the NGOs and the pro bono bar would have helped the credible fear process to go faster, be fairer, the Immigration Courts to function more fairly and efficiently, and would have screened out some of the “non viable” cases.

For some, staying in Mexico is probably a better and safer option, but folks don’t understand. Pro bono counsel can, and do, explain that.

By treating it as a humanitarian tragedy, which it is, rather than a “fake law enforcement crisis,” the Administration could have united the private sector, border states, communities, and Congress in supporting the effort; instead they sowed division, opposition, and unnecessary litigation. I’m actually sure that most of the teams of brilliant “Big Law” lawyers helping “Our Gang of Retired Judges” and other to file amicus briefs pro bono would just as soon be working on helping individuals through the system.

A timely, orderly, and fair system for screening, adjudicating, and recognizing refugee rights under our existing laws would have allowed the Administration to channel arrivals to various ports of entry.

I think that the result of such a system would have been that most families would have passed credible fear and the majority of those would have been granted asylum, withholding, or CAT.

Certainly, others think the result would have been mostly rejections (But, I note even in the “Trump Era” merits approval rates for Northern Triangle countries are in the 18-23% range — by no means an insignificant success rate). But, assuming “the rejectionists” are right, then they have the “timely rejection deterrent” that they so desire without stomping on anyone’s rights. (Although my experience over decades has been that rejections, detention, prosecutions, and harsh rhetoric are ineffective as deterrents).

No matter who is right about the ultimate results of fair asylum adjudication, under my system the Border Patrol could go back to their job of tracking down smugglers, drug traffickers, criminals, and the few suspected terrorists who seek to cross the border. While this might not satisfy anyone’s political agenda, it would be an effective and efficient use of law enforcement resources and sound administration of migrant protection and immigration laws. That’s certainly not what’s happening now.

PWS

04-06-19

COURTS OF INJUSTICE: Lawyers’ Groups Rip Bias, “Asylum Free Zone” At El Paso Immigration Court!

https://www.cnn.com/2019/04/03/us/el-paso-immigration-court-complaint/index.html

Catherine Soichet reports for CNN:

Lawyers slam ‘Wild West’ atmosphere in Texas immigration court

Immigration violations: The one thing to know

(CNN)Judges at an immigration court in El Paso, Texas, are undermining due process, making inappropriate comments and fostering a “culture of hostility” toward immigrants, according to a new complaint.

The administrative complaint, sent to the Justice Department on Wednesday and obtained by CNN, slams a number of allegedly recurring practices at the El Paso Service Processing Center court, which hears cases of immigrants detained at several locations near the border.
“El Paso feels like the Wild West in terms of the immigration system,” said Kathryn Shepherd, national advocacy counsel for the American Immigration Council’s Immigration Justice Campaign and one of the complaint’s authors. “There’s so little oversight. No one is talking about how bad it is.”
The complaint comes at a time of mounting criticism of the Justice Department-run courts that decide whether individual immigrants should be deported. And it comes as officials warn the number of cases those courts are tasked with handling is rapidly increasing with an influx of more undocumented immigrants crossing the border.
Among the allegations:
• Judges at the El Paso Service Processing Center court have “notably high rates of denial,” the complaint says, noting that the court granted less than 4% of asylum applications heard there between fiscal year 2013 and fiscal year 2017. Nationally, 35% of asylum cases in court are granted, according to the latest data from the Transactional Records Access Clearinghouse at Syracuse University.
• The complaint accuses judges in the court of making inappropriate comments that “undermine confidence in their impartiality” and are part of “a culture of hostility and contempt towards immigrants who appear” at the court. While hearing one case, a judge, according to the complaint, described the court as “the bye-bye place,” telling a lawyer, “You know your client is going bye-bye, right?” Another judge allegedly told court observers that “there’s really nothing going on right now in Latin America” that would provide grounds for asylum.
• Rules limiting evidence that can be presented at this court strip away due process, the complaint says. One judge’s standing order, for example, limits the length of exhibits that can be submitted to 100 pages. “This order is particularly harmful for individuals seeking protection whose cases are more complex or where country conditions are at issue,” the complaint says.
The Justice Department’s Executive Office for Immigration Review, which oversees US immigration courts, declined to comment on the allegations. Spokeswoman Kathryn Mattingly confirmed that the office received the complaint letter on Wednesday.

An overwhelmed system

The allegations come amid mounting criticism of US immigration courts.
There are more than 60 immigration courts in the United States, and about 400 judges presiding over them. Immigration judges are hired directly by the attorney general and are employees of the Justice Department. They’re required to be US citizens, to have law degrees, to be active and licensed members of the bar and to have at least seven years of post-bar experience with trials or hearings, among other qualifications.
Prosecutors in immigration courts are employees of Immigration and Customs Enforcement, but the overall administration of the courts is the Justice Department’s responsibility.
Both immigrant rights advocates and immigration hard-liners agree the court system is struggling under a crush of cases — but they diverge widely in their proposals for fixing it.
More than 850,000 cases are pending in US immigration courts, according to the Transactional Records Access Clearinghouse. And in a report released last month, the American Bar Association said the courts are “irredeemably dysfunctional and on the brink of collapse.”
The Trump administration has moved to hire more judges and to pressure them to finish cases more quickly, accusing immigrants and the lawyers who represent them of gaming the system and overloading it with frivolous cases.
President Donald Trump has also repeatedly questioned the need for an immigration court system to begin with. “We have to get rid of judges,” Trump said Tuesday in the Oval Office, later explaining that he no longer wants to catch people trying to cross the southern border illegally and “bring them to a court.”
Advocates say the existing system denies due process and harms vulnerable people who have legitimate claims to remain in the United States but face an overwhelming number of obstacles to make their case. They’ve argued a major overhaul is necessary, proposing the creation of an independent court system that’s not part of the Justice Department.
In recent congressional testimony, Executive Office for Immigration Review Director James McHenry said his department had increased its number of case completions for the third consecutive year. And he said that every day, the office decides immigration cases “by fairly, expeditiously and uniformly interpreting and administering the nation’s immigration laws.”

‘The worst court in the country’

Lawyers argue the El Paso Service Processing Center facility is both a window into wider problems of the immigration system and a particularly egregious example.
“Immigration courts across the nation are suffering from many of the issues identified here,” the complaint alleges, “including the use of problematic standing orders, reports of inappropriate conduct from (immigration judges), and highly disparate grant rates which suggest that outcomes may turn on which court or judge is deciding the case rather than established principles and rules of law.”
But one reason advocates focused this complaint on this El Paso court, the American Immigration Council’s Shepherd said, was that it had the lowest asylum grant rate in the nation, based on statistics compiled from Justice Department reports over a five-year period.
Those figures, from annual fiscal year reports from 2013-2017, show the percentage of cases granted in the El Paso court has fluctuated in recent years, decreasing slightly from 2014-2016 and increasing slightly from 2016-2017. But for years, the figure has hovered at or under 5% — significantly below the national rate.
“If you look at the numbers, it’s the worst court in the country. But we wanted to understand really why that was the case,” she said. “What about El Paso, and what about how the judges conduct business in the court, makes it so hard to prevail?”
After researching that question and outlining their findings in the complaint, with the help of court observers and lawyers who regularly practice in the court, now Shepherd says they’re calling for the Justice Department to conduct its own investigation into the El Paso Service Processing Center court and other courts with similar problems.

Suggestions for improvement

An administrative complaint is a step in a formal grievance process used to bring issues to officials’ attention, Shepherd said, but does not trigger legal proceedings.
The complaint recommends a series of corrective measures, including providing more training on appropriate conduct for judges and requiring the Executive Office for Immigration Review to post publicly online any standing orders individual judges have issued.
No matter how officials respond, Shepherd said she hopes the complaint will be a jumping-off point for further research into how the court’s practices have affected people who were ordered deported there.
“It’s pretty overwhelming, actually,” she said, “if you think about the thousands of people who have passed through this immigration court and haven’t really had a chance to fight their case in a meaningful way.”

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This isn’t Due Process! This isn’t justice! This is a farce, a fraud, and a parody of justice going on with the active encouragement and incompetent management of a Department of Justice that has abandoned due process and the rule of law in favor of  restrictionist “deny ‘em all, deport ‘em all” policies actively promoted by Trump, former Attorney General Jeff Sessions, and adopted by current Attorney  General Bill Barr.

This national disgrace and existential threat to our entire justice system and constitutional order will not end until the Immigration Courts are removed from the Department of Justice and reconstituted as an independent, fair, impartial court system dedicated to insuring fairness and due process for all, including the most vulnerable among us.

PWS

04-04-19

TRUMP’S LATEST ATTACK ON AMERICA, DUE PROCESS, & OUR CONSTITUTON! – Let’s Get Rid Of Judges!

https://apple.news/AIKJMMrCQT0-3ex8Gf1TDyA

CBS News reports:

President Trump reiterated a threat to close the U.S.-Mexico border after a meeting at the White House on Tuesday, saying he stands ready to take drastic action if the country doesn’t do more to curb illegal immigration. He also railed against the U.S. immigration system and said he wants to “get rid” of immigration judges who hear migrants’ cases.

“Security is more important to me than trade,” Mr. Trump said when asked about the severe economic impact of closing the border. “We’ll have a strong border or we’ll have a closed border.”

The president spoke after meeting in the Oval Office with Jens Stoltenberg, the secretary general of the North Atlantic Treaty Organization (NATO).

Last week, Mr. Trump tweeted threats to close the border if Mexico doesn’t do more to cooperate with the U.S. and slow the flow of migrants. But the commander-in-chief appeared to shift that timeline Tuesday, saying Mexico is assisting the U.S. more than it was even a few days ago. The president said he’s still “totally prepared” to close the border if necessary.

Along with a list of frustrations over immigration, however, Mr. Trump included immigration judges. U.S. immigration court backlogs are at all-time highs, with not enough judges to adjudicate the cases. That problem was exacerbated by the government shutdown earlier this year.

“We need to get rid of chain migration, we need to get rid of catch and release and visa lottery, and we have to do something about asylum. And to be honest with you, have to get rid of judges,” Mr. Trump said in his laundry list of frustrations with the U.S. immigration system.

Mr. Trump also walked back his insistence that the Republican Party will imminently introduce a new health care plan. Overnight, the president tweeted he would wait to hold a vote on his yet-to-be-envisioned health care plan until after the 2020 election. On Tuesday, the president said he will bring forth a plan “at the appropriate time.”

“We don’t have the House,” Mr. Trump said about the delay, which came after he said the Republican Party will become the “party of health care.”

Republicans failed to repeal and replace Obamacare in the two years they held the House and Senate.

Stoltenberg’s visit came as Mr. Trump tries to decrease the U.S. footprint abroad with his “America First” foreign policy. Mr. Trump has urged other NATO nations to increase their defense spending to agreed-upon levels, a stance many see as positive, but on Tuesday the president said defense spending will need to go higher than 2 percent. Currently NATO members agree to spend at least 2 percent of GDP on defense, but Mr. Trump, in a meeting alongside the secretary general, said that figure “may have to go up.”

Meanwhile, Mr. Trump’s close relationships with North Korean leader Kim Jong Un and Russian President Vladimir Putin while criticizing U.S. allies has made some ally NATO nations distance themselves from the U.S. Last year, for instance, German Chancellor Angela Merkel said Germany can’t rely “on the superpower of the U.S.” any longer to bring order to the world.

Before he became president, Mr. Trump declared NATO “obsolete.” He later revised that statement, saying he no longer believes that to be the case.

“I said it was obsolete. It’s no longer obsolete,” Mr. Trump declared during Stoltenberg’s visit in 2017.

When NATO was founded in 1949, there were 12 ally nations. Now there are 29. Last month, Mr. Trump suggested perhaps Brazil could be a part of NATO, though Brazil is largely in the southern hemisphere.

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Trump simply doesn’t care about the Constitution or Due Process of law (except where he, his family, and their corrupt cronies are involved). Migrants seeking to apply for legal protections under our laws aren’t a security problem; Trump is! And, the idea that closing the border wouldn’t cause both an economic catastrophe and threaten our security just shows what an absurdist presidency Trump has foisted on the majority of Americans who did not want him in office in the first place.

PWS

04-02-19

HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!

 

The Immigration Court: Issues and Solutions

The following is the transcript of my lecture on March 28, 2019 at Cornell Law School as part of its Berger International Speaker Series titled The Immigration Courts: Issues and Solutions. Here is a link to the actual recording of the lecture. My heartfelt thanks to Prof. Stephen Yale-Loehr, Prof. Estelle McKee, and everyone at Cornell Law School for the honor of speaking, and for their warmth, intelligence, and dedication.

I’ve had a couple of occasions recently to consider the importance of faith in our judicial institutions.  I discussed the issue first in a blog post in which I commented on the Kavanaugh confirmation hearings, and then again in remarks relating to a play I was involved in in NYC based on an actual immigration court case, called The Courtroom.  Attorneys more commonly focus on faith in our courts on an individualized, case-by-case basis.  But in a democracy, a larger societal faith in our judicial institutions is paramount. And this may sound strange, but a large reason for this is that our courts will not always reach the right result.  But society will abide by judicial outcomes that they disagree with if they believe that the result was reached impartially by people who were genuinely trying to get it right. Abiding by judicial decisions is a key to democracy.  It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”

If we accept this point of view, I believe that recent developments provide a cause for concern.  As Jeffrey Toobin recently wrote in The New Yorker, “these days the courts are nearly as tribal in their inclinations as the voters are,”  a point that the partisan nature of recent Supreme Court confirmation battles has underscored.

Our immigration courts are particularly prone to political manipulation because of their unique combination of structure, history, and function.  The present administration has made no secret of its disdain for judges’ ability to act as a check on its powers. But the combination of the fact that immigration judges are under the direct control of the Attorney General, and that their jurisdiction concerns a subject matter of particular importance to this administration has made this court especially ripe for interference.

A brief history of the immigration courts reveals it to be what my friend Prof. Deborah Anker at Harvard Law School calls a “bottom up” institution.  Immigration Judges originated as “special inquiry officers” within the old INS, where they held brief “hearings” under very non-courtlike conditions. In 1998, while I was an IJ, the court held a ceremony to commemorate the 25th anniversary of the immigration courts.  This was not the anniversary of its recognition as a court by Congress, which came much later, but rather, the anniversary of the agency beginning to refer to its personnel as judges.

The keynote speaker at the ceremony was William Fliegelman, who was the first person to hold the title of Chief Immigration Judge.  To the extent that his historical account was accurate, the immigration judge corps essentially invented itself, purchasing their own robes, designing the layout of their hearing rooms to better resemble courtrooms, and coordinating with INS district counsel to send its attorneys to each hearings to act as prosecutors.  Judge Fliegelman and then-INS District Counsel Vincent Schiano together created the Master Calendar hearing which is still used by the courts as its method of preliminary hearing. In other words, according to Judge Fliegelman’s account, the immigration judges presented themselves to the Washington bureaucrats as a fait accomplis, leaping fully formed much like Athena from Zeus’s head.

However, the judges still remained employees of the INS, the agency prosecuting the cases.  Most of the immigration judges were former INS trial attorneys. It was not uncommon for the judge and prosecutor to go out to lunch together, which didn’t exactly create the appearance of impartiality.  In 1983, the immigration judges, along with the Board of Immigration Appeals, were moved into an independent agency called the Executive Office for Immigration Review (“EOIR”). However, EOIR remained within the Department of Justice, as did the INS.  As both the INS commissioner and EOIR director reported to the same boss at Main Justice, and as INS was a much larger, more influential agency than EOIR, the former continued to be able to exert undue influence on the latter agency. That dynamic ended when the functions of the old INS were moved into the newly-created Department of Homeland Security in 2003.  Actually, EOIR was slated to move to DHS as well, but managed to finally achieve some space from ICE once again only through the IJ’s own lobbying efforts.

Although EOIR did begin sporadically appointing private attorneys to the bench in the 1980s, the number of more liberal private bar advocates appointed increased under the Clinton Administration in the mid-1990s, significantly changing the overall makeup of the immigration judge corps.  Many of those more liberal hires became retirement eligible under the present administration.

It wasn’t until 1996 that Congress finally recognized immigration judges by such title in statute.  As I was a new judge at the time, I can report that yet again, this development was accomplished by the immigration judges themselves, who chipped in to pay a lobbyist to bring about this change, with no assistance from EOIR management.

Soon thereafter, the immigration judge’s union began advocating for independent Article I status.  In the 1990s, then-Congressman Bill McCollum of Florida sponsored such a bill, which was opposed by EOIR management (out of its own self-interest), and which did not advance in Congress.  A very similar bill was drafted last year by New York Senator Kristin Gillibrand, which was never proposed to the Republican-controlled Congress.  A main difference between the 1990s proposal and present one is the climate in which they are made. While many of the arguments for Article I status involved hypothetical threats in the 1990s, over the past two years, many of the fears that gave rise to such proposal have become reality.

Some of the recent developments underscoring the urgency of the need for Article I courts include:

Politicized IJ hiring.  Following the more diverse corps of IJs hired under the Clinton Administration, a backlash occurred under the George W. Bush Administration.  A report following an investigation by the DOJ Inspector General’s Office detailed a policy of extending IJ offers only to those who had been found to meet the proper conservative, Republican profile.  For example, the report indicated that one candidate was found to have the proper conservative views on the “three Gs:” God, Guns, and Gays.

Although such practices came to an end in the latter part of the Bush Administration, in May of last year, a letter by 8 members of Congress. Prompted by whistleblowers within EOIR, requested the DOJ Inspector General to investigate new reports of a return of such politicized hiring under the present Administration.  At present, nearly all new IJ hires are former prosecutors or those who otherwise have been deemed to fit this administration’s ideological profile.

Completion quotas:  As of October 1, 2018, IJs are required to satisfy completion quotas set by EOIR management.  According to the President of the Immigration Judges’ Union, Hon. Ashley Tabaddor, no other class of judges are subject to similar quotas.  Judge Tabaddor has stated that IJs cease to be true judges under such system, as an adjudicator who must repeatedly choose between the requirements of due process and their own job security is one who lacks the independence required of judges.

Since October 1, judges are treated to a graphic on their computer screens each day which resembles the gauges on an airplane or sports car, with an animation of a needle which in seven different “gauges” will either be in the green, yellow, or red zone.  Not surprisingly, IJs find this demeaning.

Under the quotas, IJs are each required to complete 700 cases per year.  95 percent must be completed at their first scheduled individual hearing.  The judges may not have more than 15 percent of their decisions remanded or reversed by the BIA.

Judges have reported that when they find it necessary to continue a merits hearing, they soon receive a call from management requiring them to provide a detailed defense of their decision to continue the case.  In some courts, EOIR management has asked the court’s judicial law clerks to act as spies by listening to the recording of the continued hearing and reporting whether the in-court statements of the judge match the explanation the judge later provided to their supervisor for the continuance.  As a result, judges appointed by the Attorney General of the U.S. to hear life-and-death claims for asylum now feel the need to play-act on the record to avoid punishment from their superiors.

Another thing about quotas: right after they were announced, a reporter from NPR called me to ask what impact they were likely to have on judges.  In response, I suggested that we look at the most recent case completion figures on EOIR’s website.  I said we should first look at the court with the highest denial rate in the country, Atlanta. We divided the total number of case completions by the number of judges, and found that these judges averaged over 1,500 completions for the year, or more than double what was needed to meet the quota.  We then did the same for one of the more liberal courts in the country, the New York City court, and found that the judges there averaged just 566 completions a year, well under what would be needed to satisfy the quota. So just to be clear, the quotas are not designed to have a neutral impact; the administration hopes that forcing more completions will also result in more denials.

It should be noted that despite these quotas and numerous other efforts by the Trump Administration to supposedly increase the court’s productivity, the backlog has actually increased by 26% over the past two years.

Continued impact of the 2003 BIA purge:  In 2002, then Attorney General John Ashcroft expressed his dismay for some of the BIA’s more liberal decisions.  His response was to strip some of the BIA’s authority (in particular, taking away its de novo review authority over immigration judges’ findings of fact).  Ashcroft also announced that, in order to improve an overburdened BIA’s efficiency, he would reduce its size from 21 to 12 members. If you believe that the last part makes no sense, believe me, you are not alone.

One year later, Ashcroft followed through on his threat, removing every judge he deemed to be liberal from the BIA.  The Board, which had always been conservative leaning, subsequently took a much greater tilt to the right.  There was no correction under the Obama Administration, meaning that the BIA for the past 16 years and counting has been devoid of any liberal members.  It’s present chair, David Neal, is a Republican who served as a staff member to former U.S. Senator and Kansas Governor Sam Brownback.  The Board’s most prolific judge under the Trump Administration, Garry Malphrus, had been appointed to the bench after playing a role in the “Brooks Brothers riot,” in which Republican faithful hampered the recount of ballots in Florida following the 2000 presidential election.  Board Member Ed Grant was a Republican staff member to Rep. Lamar Smith, a Texas Republican with anti-immigrant views who previously chaired the House Immigration Subcommittee.

Of course, the result has been the issuance of more conservative precedent decisions which are binding on immigration judges.  And due to the common practice of Circuit Courts to accord deference to those decisions, under Chevron, Brand X, or Auer deference, humane interpretations of the immigration laws have become harder to come by.  Prior to 2002, the BIA commonly decided precedent decisions en banc, often providing a range of concurring and dissenting opinions, some of which were later adopted by the circuit courts on appeal.  But since that time, the Board only publishes three-member panel decisions as precedent, with a very small number of dissents.

A recent article in the Stanford Law Review by Prof. Jennifer Lee Koh provides an example of one of the effects of the Board’s more conservative makeup.  Being convicted of what is characterized as a “crime involving moral turpitude,” or CIMT, may render noncitizens removable from the U.S. and ineligible for immigration benefits or reliefs.  An attempt by the last Attorney General to serve under the Bush Administration, Michael Mukasey, to increase the BIA’s ability to find crimes to be CIMTs by creating his own alternative to the categorical and modified categorical approaches was vacated by his successor, Eric Holder (after having been rejected by 5 Circuit Courts of Appeal).  As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.

Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference.  From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result.  I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas.  So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.

As to the law of asylum, not long after the purge of its liberal members, the BIA issued six precedent decisions between 2006 and 2014 making it more difficult to qualify for asylum based on membership in a particular social group.  The standard set out by the BIA in its 1985 decision Matter of Acosta – requiring the group to be defined by an “immutable characteristic” that its members either cannot change, or that is so fundamental to their identity that they should not be required to change it – had worked well for 21 years.  However, with no liberal push back, the more right-leaning Board members chose to add the additional requirements of particularity and social distinction to the PSG determination. The Board’s reliance on 2002 UNHCR Guidelines as justification for adding the latter requirement was most disingenuous, as the UNHCR employed the word “or” to allow those unable to otherwise satisfy the PSG requirements an alternative means of doing so, thus expanding those able to meet the definition.  But by changing the “or” to an “and,” the Board required applicants to establish both immutability and social distinction, thus narrowing the ranks of those able to qualify.

The changes had a dramatic impact on the large number of refugees escaping gang violence in Central America who generally relied on particular social group-based asylum claims.  Furthermore, while family has always been acknowledged as a particular social group, the BIA issued a decision in 2017 making it much more difficult to establish that the persecutor’s motive is on account of the victim’s family membership.   In that decision, the BIA offered the Bolshevik assassination of members of the family of Czar Nicholas II in Russia in 1918 as an example of what must be established to be granted asylum based on one’s family membership.   I have yet to find any lawyer who represents clients whose family presently enjoys a similar standing to the Romanov family in 1918 Russia. The ridiculously narrow interpretation was obviously designed to make it close to impossible for such claimants to qualify for relief.

The BIA also recently held that a Central American woman who was kidnaped by a guerrilla group and forced to cook and clean for them while in captivity had provided material support to a terrorist organization, thus barring her from a grant of asylum.  In reaching such holding, the Board determined that the victim should have reasonably known that the Salvadoran guerrilla group that kidnaped her was a terrorist organization in 1990, a time at which the U.S. government did not seem to yet hold such view.

Of course, IJs are bound by these decisions.  There have always been IJs who have forwarded new and sometimes creative legal theories which overcome these Board-imposed obstacles in order to grant relief.  But as stated previously, the quota guidelines will deter such creative decisionmaking by threatening the IJ’s job security. Judges should not have to fear repercussions for their good faith interpretations of the law.

Under prior administrations, ICE prosecutors have agreed in worthy cases to waive appeal when appropriate, and would even stipulate to grants of relief in worthy cases.  Also, under the previous administration, ICE would commonly agree to exercise its prosecutorial discretion to close non-priority cases. However, ICE attorneys at present are directed to oppose everything and agree to nothing.

Increased AG certifications:  In 2016, former Bush Attorney General Alberto Gonzales co-authored an article in the Iowa Law Review suggesting that instead of issuing a controversial executive order, the Obama Administration should have instead had the Attorney General issue precedent decisions in order to change the immigration laws.  A strange regulatory provision allows an Attorney General to direct the BIA to refer any decision for review. The AG can then simply rewrite any decision as he or she sees fit, creating precedent binding on the BIA, IJs, and DHS.

Clearly, the present administration is using Gonzales’s article as its playbook.  Apparently not satisfied with its power to appoint its own immigration judges, with packing the BIA with conservative former Republican Congressional staffers, and with its power to publish regulations interpreting the immigration laws to its own will and to issue policy directives binding on the judges, the Attorneys General serving the Trump Administration are also issuing precedent decisions through the process of self-certification at an alarming rate.  The decisions are different from those of other administrations, in that they are self-certified through procedural irregularity, are decided based on issues entirely different than those presented before the IJs and the BIA, and upend what had been settled issues of law that were not being questioned by either party to the action.

Former Attorney General Jeff Sessions used the certification process to make immigration judges less judge-like by stripping away necessary tools of docket management such as the right to administratively close proceedings, to terminate proceedings where appropriate, or to freely grant continuances in pending cases.  Sessions certified one case, Matter of E-F-H-L-, to himself four years after the BIA’s decision in the case, after it had been not only remanded back to the IJ, but had subsequently been administratively closed to allow the respondent to await the approval of an immigrant visa petition.  Sessions’s purpose in digging such an old case up was to vacate its holding guaranteeing asylum seekers a right to a full hearing on their application before an immigration judge. And his interest in doing so was to suggest to immigration judges that a way to increase their efficiency would be to summarily deny asylum claims without affording a hearing, which some judges have actually started to do.  And in another decision, Sessions suggested exactly what type of asylum cases he deemed most appropriate for such treatment.

Sessions’s most egregious decision attempted to unilaterally strip women of the ability to obtain asylum as victims of domestic violence.  This was not an issue that was in dispute, but had been a matter of settled law since 2014, when the BIA issued its precedent decision in Matter of A-R-C-G-, in which the DHS had stipulated that “married women in Guatemala who are unable to leave their relationship” constituted a cognizable particular social group to which asylum could be granted.

In certifying the case of Matter of A-B- to himself to reconsider such holding, Sessions invited briefs from all interested parties.  A total of 14 briefs were filed, two by the parties, and 12 amicus briefs (including one from my group of former IJs and BIA members).  The briefs from both parties (i.e. including DHS), and of 11 of the amici (the exception being FAIR, an anti-immigration group that regularly files the sole opposing amicus brief in such cases) all concluded that A-R-C-G- should not be vacated, and constituted a valid application of law which satisfied all of the BIA’s post-purge obstacles described above.  Thus, with the exception of FAIR, there was agreement by DHS, the BIA, the private bar, legal scholars, advocacy groups, and under international law as to the validity of the existing practice.

Nevertheless, Sessions issued a poorly-written decision in which he strongly disagreed, and vacated A-R-C-G- while attempting to make it close to impossible for such claims to succeed in the future.  I emphasize the word “attempting,” because fortunately, Sessions is a terrible lawyer with no asylum law expertise.  As a result, his decision is largely dicta, which even Department of Justice attorneys admit only managed to vacate A-R-C-G- without otherwise altering the legal factors that would allow such grants in the future.  But the BIA has simply been dismissing such claims on the grounds that Sessions had rejected them, without undertaking the individualized analysis required in such cases.  As a result, the circuit courts, and not the BIA, will likely decide the propriety and impact of Sessions’s decision.

My final note concerning A-B- is that while the case was still pending before him, Sessions stated in a radio interview in Arizona that “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore they are entitled to enter the United States.  Well that’s obviously false, but some judges have gone along with that.” Clearly, any judge making such a statement would have to recuse him or herself from the case. But Sessions, who never hid his bias against immigrants (among other groups), neither felt the need to be impartial, nor did the law require it of him.

Which makes Deputy Attorney General Rod Rosenstein’s recent remarks to a new class of immigration judges particularly worrisome.  Rosenstein reminded the group that they are “not only judges,” but also employees of the Department of Justice, and members of the executive branch.  As such, Rosenstein stated, IJs must “follow lawful instructions from the Attorney General, and…share a duty to enforce the law.”  But shouldn’t judges who make such important decisions that sometimes involve life and death be “only judges?”

The incongruity is that the DOJ is an enforcement agency.  As such, it is not designed to be either neutral or transparent.  As already noted at length, it is headed by a Presidential political appointee, many of whose decisions and policies are guided by a purely political agenda.  As such, DOJ has never understood IJs, who need to be neutral, transparent, and insulated from political influence.

Although many in EOIR’s management hold titles that make them sound like judges, in fact, they see their role not as protectors of immigration judge independence, but rather as executive branch, DOJ managers whose main job is to appease their higher-ups in the Justice Department.  They view DHS not as one of the parties appearing before the agency, but rather as fellow executive-branch comrades. They take the same view of attorneys with OIL and the U.S. Attorneys Office who litigate immigration decisions in the federal courts. Significantly, they view the private bar and academia as being outside of this executive branch fold.

As my friend and fellow blogger, retired Immigration Judge Paul Schmidt recently wrote in a blog post, “what real court acts as an adjunct to the prosecutor’s office?” adding that such relationship is common in authoritarian, refugee-producing countries.

The last recent development I wish to mention that underscores this conflict was the treatment of a highly respected and fair immigration judge in Philadelphia, Steven Morley, who had issued a decision which was certified and reversed by Sessions, Matter of Castro-Tum.  Castro-Tum entered the U.S. as an unaccompanied minor.  After his release from ICE detention, he did not appear for his immigration court proceedings.  However, Judge Morley was concerned, based on his past experience, that ICE had provided the court with an inaccurate address for the youth, and felt it would be unfair to order him removed in absentia without first determining if he had received proper notice of the hearing as required by law.

On remand, Judge Morley was directed by Sessions to proceed  according to the section of the law that governs in absentia orders.  Now, that section also requires a finding of proper notice on the respondent.  Judge Morley therefore proceeded properly and consistently with the AG’s order when he granted a short continuance for briefing on the issue of proper notice.  In response, the case was immediately removed by EOIR management from Judge Morley’s calendar. While a case would normally then be randomly reassigned to another judge in the same court, EOIR hand chose a management-level supervisory judge known for following the company line, who was sent to Philadelphia to conduct a single five-minute hearing in which she ordered the youth removed in his absence.  Furthermore, Judge Morley was chastised by his supervisor, Assistant Chief Immigration Judge Jack Weil, who, according to a grievance filed by the IJ’s union, incorrectly told Judge Morley that he was required to enter a final decision at the first hearing following the remand, and further falsely accused him of acting unprofessionally in purportedly criticizing the AG’s and BIA’s decisions.  86 similar cases were subsequently removed from Judge Morley’s calendar. Such action sent a very strong warning to the entire IJ corps (many of whom are new hires still in their two year probation period) of what to expect should they choose to act as “only judges” and not loyal employees of the Attorney General and executive branch.

The above inadequacies in the immigration court system have allowed the present administration to exploit it like never before in support of its own political narrative.  Examples of this include:

The Trump Administration’s early trumpeting of causing a “return to the rule of law” by increasing the number of removal orders its judges entered compared to the prior administration.  Early on, this was supposedly “accomplished” through what Paul Schmidt refers to as “ADR” or Aimless Docket Reshuffling. Judges in busy courts were told to continue two weeks worth of cases at a time (usually involving noncitizens represented by attorneys who had already waited years for their day in court) to instead travel to courts near the southern border to hear cases of largely unprepared and unrepresented, newly-arrived asylum seekers.  To repeat, in fact, the backlog has grown significantly in spite of such policies.

The administration also maintains a false narrative that Central American asylum seekers fleeing horrible gang and domestic violence are not really refugees, and in fact are dangerous criminals.  Through the AG’s issuance of Matter of A-B- and the compliant BIA’s reliance on that decision to give short shrift to such claims; through the detention of asylum seekers in remotely located detention centers, and the new policy of forcing some to wait in Mexico while their claims are adjudicated, thus severely limiting such asylum seekers access to counsel and their ability to meaningfully participate in compiling evidence and otherwise presenting their best claims; by indoctrinating new IJs that “these are not real claims,” the administration has artificially lowered the percentage of such claims that are being granted asylum, which thus furthers its narrative that “these are not real refugees.”

Furthermore, by forcing those attempting to apply legally to wait in Mexico under inhospitable and sometimes dangerous conditions for increasingly long periods of time, those who finally out of desperation cross the border without authorization are immediately arrested and tried criminally for the “crime” of crossing the border illegally, thus supporting the narrative that our country is being invaded by “criminals.”

The administration also maintains the narrative that immigrants should just be deported quickly, without due process and hearings before judges.  It is trying to accomplish this through the transformation of the immigration judge corps. By stripping IJs of much of what makes them independent judges, through the removal of necessary case management tools such as administrative closure, termination, and the ability to grant continuances; by imposing on them insulting completion quotas, and by making IJ training less about the proper application of the law and more about efficiency, many more experienced IJs are retiring sooner than they intended.  The administration is most happy to replace them with their hand-picked candidates who they expect to be made more compliant through the lengthy period of probation, the completion quotas, and an indoctrination of the type described above.

The result of all this was summarized in a detailed report of the ABA released last week.  The ABA report concluded that the immigration courts at present are “irredeemably dysfunctional” and on the verge of collapse.  There are those who believe that such collapse has been the goal all along, as it would allow the administration to replace the present system with one that is even more compliant and affords even less due process, perhaps something like the old special inquiry officer model.

What can be done?  A number of respected organizations, including the ABA, the Federal Bar Association, the American Immigration Lawyers Association, and of course the National Association of Immigration Judges have endorsed moving the immigration courts out of DOJ and making them an independent Article I court.

Article I status will likely not solve every problem, but for the reasons detailed above, it is an absolutely necessary starting point.  Article I is truly a non-partisan position. It’s first sponsor, Rep. McCollum, was a Republican; Sen. Gillibrand, who has recently shown interest in the issue, is a Democrat.  As the leader of a group of former immigration judges and BIA members, which includes members from across the ideological spectrum, I have found certain issues to be divisive within the group.  However, the issue of immigration judge independence has been unique in garnering universal support.

While it is too early to discuss the details of what such bill might contain, it is hoped that the BIA as presently constituted will be replaced by an immigration appeals court committed to independently and fairly interpreting the law, free of any fear of displeasing the Attorney General.  It’s members must be bipartisan, and appointed based on their knowledge of the law and their courage to apply it correctly. This would be a drastic change from the present group led by former Republican staffers still aiming to please their old bosses, and fleshed out with career DOJ bureaucrats who will loyally follow the party line.  I’ve always felt that choosing a former Article III judge to head an independent immigration court would immediately change the court’s priorities in the proper manner.

What role can we all play in making this happen?  At present, the most vocal advocates are immigration lawyers.  As such change would need to come from Congress, it bears noting that no elected official’s election hopes are likely to hinge on their winning the immigration lawyer vote, which amounts to probably a few thousand votes in total spread across many states and congressional districts.

However, we are all constituents of our senators and representatives. It is therefore incumbent on all of us to be advocates, and where possible, to join forces with other groups of constituents that might both share our interest in the issue and carry more sway with elected officials.

Speak out to anyone willing to listen to tell them that Article I is a non-partisan solution to the unrepairable mess that our present immigration court system has become.  In speaking to elected officials, try to find a reputable representative to endorse the concept.

Tell your own stories to make your points.  Because lawyers at heart are storytellers.

Explain that quotas and deadlines run contrary to judicial independence.

Ask for oversight hearings, to which groups such as the NAIJ, the ABA and AILA should be invited to the table.

Outside of the actual immigration judges and BIA, the following additional changes are needed.  First, ICE attorneys in the employ of DHS, i.e. the prosecutors in immigration court proceedings, must be allowed once again to offer prosecutorial discretion and to stipulate to grants in worthy cases, or to otherwise conference cases with private attorneys in an effort to streamline hearings.  I can’t think of any high volume court in which stipulations, plea agreements, and conferencing between the parties is not the common practice. Imagine what would happen to criminal courts if they were told that from now on, every jay walking ticket will require a full trial and appeal.

Prosecutorial discretion and some of these other streamlining techniques had finally become common practice in the immigration courts under the Obama administration.  It makes good sense and serves an important purpose in such an overburdened system to prioritize cases, and temporarily close out those cases that are not a priority. Most such cases involve noncitizens who are law-abiding, tax-paying individuals, some of whom have US citizen children.

Lastly, there are a large number of specially-trained asylum officers presently employed by DHS.  Some have suggested moving them as well into an independent court system in a supporting role, and providing the asylum officers with expanded jurisdiction to hear not only a broader array of asylum claims (thus removing those cases they grant from the actual judges’ dockets), but perhaps also allowing the asylum officers to adjudicate other classes of cases, such as cancellation of removal claims.

In closing, as summarized earlier, over several decades, immigration judges evolved from non-judicial adjudicators in the employ of an enforcement agency into administrative judges comprised of lawyers from a broad spectrum of ideological backgrounds who were allowed to exercise a good deal of independent judgment in a court setting.  And much of this positive development came from the “bottom up,” through the judges’ own collective efforts.

Because the final step of Article I status was never realized, actions by the Trump administration, which views independent judges as an unwanted obstacle to enforcing its own anti-immigration agenda, is attempting to roll back immigration judges to a state more closely resembling their INS special inquiry officer origins.

Although my focus has been on the present crisis under the Trump Administration, in fairness I want to state that the factors which set the stage for it built up over many years under both Democratic and Republican administrations.  Regardless of what administration follows this one, the immigration courts at best will almost certainly continue to suffer from the not-so-benign neglect that led us here, simply because immigration is such a controversial topic that problems are kicked down the road rather than resolved.

The reforms which Article I will bring will help insulate the system from unnecessary costs and delay caused by clogged dockets and unnecessary appeals prompted by a lack of trust in the system.  It will also help guarantee a clear funding stream with necessary resources not syphoned off by DOJ for other programs, and will safeguard the Circuit Courts from needless (and costly) appeals.

For all of these reasons, only an independent Article I court can sufficiently remove the threat of political manipulation, and again restore the faith in the immigration court’s fairness and impartiality that a democracy requires.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

 

 

Court Rebukes Youth Policy Shift

 

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

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Thanks Jeffrey my friend and colleague for telling it like it is and setting the record straight.

PWS

03-29-19

LORELEI LAIRD @ ABA JOURNAL: Judges Make The Case For An Independent Article I U.S. Immigration Court, Featuring Interviews With “Our Gang” Members Judge Carol King & Me!

http://www.abajournal.com/magazine/article/immigration-judges-executive-politicizing-courts

Lorelei writes in the ABA Journal:

There was no reason to think that the relatively routine immigration case of Reynaldo Castro-Tum would make headlines.

Castro-Tum, a Guatemalan national who entered the United States at 17, was one of thousands who were part of 2014’s “surge” of unaccompanied minors. Like most of those minors, he was eventually released to the custody of a relative—in this case, a brother-in-law who lived outside Pittsburgh. The government repeatedly sent notices to appear at immigration court hearings to that address, but Castro-Tum never showed up.

Normally, that’s the end of the story, since failure to appear in immigration court generally results in a deportation. But Judge Steven Morley of the Philadelphia immigration court suspected the address on file for Castro-Tum was not correct, in part because that’s a common problem with addresses provided for unaccompanied minors. So Morley administratively closed the case, essentially pausing it to look into the address problem. The government appealed it, along with about 200 similar cases, and the Board of Immigration Appeals, the court of next resort in immigration cases, instructed Morley to deport Castro-Tum.

But before he could do that, then-Attorney General Jeff Sessions assigned the case to himself, a power the attorney general has as the head of the federal agency that controls the immigration courts. His opinion in Matter of Castro-Tum, issued in May 2018, says immigration judges have no legal authority to administratively close cases. That alone would have been a big deal in the immigration law world because it took away a well-established tool for managing the already overwhelmed immigration court dockets.

Jeff Sessions

Photo of Former Attorney General Jeff Sessions by Shutterstock.

But what came next drew widespread attention among immigration lawyers as well as the national media, catapulting the otherwise unknown case of a single teenage immigrant into the spotlight. On remand, Morley continued the case to resolve the address problem—and immigration court leadership promptly took it away from him, reassigning it to an administrative judge. Then they reassigned 86 more of his cases. According to a grievance filed by the National Association of Immigration Judges, the union that represents Morley, a supervisor told him that he had been expected to order Castro-Tum deported if he didn’t appear.

NAIJ President A. Ashley Tabaddor says that’s not actually in Sessions’ opinion—and if it were, it would violate federal regulations on immigration judges’ independence. (Morley, like most sitting immigration judges, could not comment on the case per Justice Department policy. Tabaddor, who is also a sitting judge, stresses that she is speaking only in her role as union president.)

“We think that is a clear, clear violation of a judge’s decisional independence,” says Tabaddor, who presides in Los Angeles. “When you tell a judge how the process … should be handled, by definition, that is going to have an impact, and a significant impact, on the outcome.”

The Executive Office for Immigration Review, the DOJ agency that controls the immigration courts, declined to comment, citing pending litigation. Tabaddor said in January that she was unaware of litigation related to the matter.

Before Sessions’ opinion, the ABA had urged in an amicus brief to the DOJ that the attorney general continue to allow administrative closure in immigration cases, citing it as a “practical necessity” for judges to deal with the courts’ huge backlog.

Immigration courts have always been susceptible to politics; presidents have, for example, rearranged dockets to suit their political needs. But the NAIJ and others are concerned that the Trump administration has moved from reprioritizing cases to deliberately trying to affect case outcomes. Changes that have caused concern include unilateral changes to case law, like the one Sessions made in Castro-Tum; pressure on judges to rule faster; and even allegations that the DOJ is considering political affiliation in hiring new immigration judges.

“It’s all part of what our association has referred to as ‘the deportation machine,’ ” says Jeremy McKinney, treasurer of the American Immigration Lawyers Association. “In other words, transforming a court that is supposed to be an independent and neutral trier of law and fact into an arm of law enforcement.”

A TROUBLED HOME

For critics, a major problem with the immigration courts is where they’re housed: within the Department of Justice, an executive-branch department headed by a politically appointed leader. That’s unlike the Article III federal courts or most of the federal administrative law courts.

Immigration law observers have long worried that this exposes the courts to political interference—and recent history supports that. In 2008, the Justice Department’s Office of the Inspector General found that political appointees had hired only politically connected Republicans as immigration judges between 2004 and 2006, despite knowing judges were part of the civil service system. Over the past 30 years, several attorneys general have referred themselves cases in order to overturn the decisions of predecessors from a different party. Presidents of both parties have reprioritized dockets for political reasons.

Most of that is perfectly legal and within the political leadership’s powers—and to some observers, that’s a problem. Take the fact that attorneys general may certify Board of Immigration Appeals cases to themselves. There’s no requirement that they follow precedent or consult anyone else. This permits an attorney general to change case law unilaterally.

“Just allowing that kind of interference compromises the integrity of the court,” Tabaddor says. “Because that’s not how a court is supposed to run. That’s not how law is supposed to be developed.”

Asked for comment on the matter, Justice Department speechwriter Steven Stafford noted that the attorney general’s legal authority to refer himself cases, and authority to control the immigration courts and their judges, is clear under the Immigration and Nationality Act.

“Further, the acting attorney general’s exercise of this authority has been entirely appropriate in each particular case,” Stafford said in an emailed statement. “Those who oppose the use of this authority have a problem not with the acting attorney general, but with the INA.”

If this power of the attorney general is obscure, that might be because most—from both parties—have used it sparingly. Using DOJ archives of agency decisions, the ABA Journal determined that over three eight-year presidencies, former President Barack Obama’s two attorneys general referred themselves a total of four cases; George W. Bush’s three AGs referred themselves 10 cases; and Bill Clinton’s one AG referred herself one case. The ABA Journal found no record of any self-referrals during new Attorney General William Barr’s first time in the job, from 1991 to 1993.

By contrast, Sessions referred himself seven cases during 21 months in office, though he was able to publish decisions on only five before President Donald Trump asked him to resign.

Any hope that former Acting Attorney General Matthew Whitaker would take a lighter touch were dashed in December, when Whitaker certified two cases to himself: Matter of Castillo-Perez, concerning intoxicated driving and the good moral character standard in immigration law, and Matter of LEA, on whether a family connection can be the basis of an asylum claim. The cases were waiting for Barr after he was sworn in.

And the decisions Sessions handed down are not small tweaks. Take Matter of AB, in which Sessions decided that asylum should only rarely be available to people fleeing serious crimes not sponsored by a government. (“AB” are the initials of a woman who said she suffered prolonged domestic violence in El Salvador.) Essentially, Sessions ruled that when the persecution doesn’t come from the government itself, asylum claimants must work harder to show that the home government couldn’t or wouldn’t protect them.

“In practice, [nongovernmental violence] claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address,” Sessions wrote. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

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Infographic by Sara Wadford

In making that ruling, Sessions swept away precedents set by the Board of Immigration Appeals and the federal appeals courts on what constitutes a “particular social group” under asylum law.

“The attorney general did not rewrite the underlying test for who qualifies for asylum and who does not,” says McKinney, who also runs McKinney Immigration Law in Greensboro, North Carolina. “He just announced that he would have applied the test differently, and his result would have been different. It’s a very, very strange way to issue sweeping precedent decisions.”

Jeremy McKinney

Photo of Jeremy McKinney by Shelli Craig Photography

The ruling also removed the basis for asylum claims from thousands of Central Americans who arrived in the United States in recent years to flee uncontrolled domestic abuse or gang violence in their home countries. Retired immigration Judge Paul Wickham Schmidt does not believe that’s a coincidence.

“The grounds that some people have been succeeding on are domestic violence and family-based claims,” says Schmidt, who belongs to the ABA Judicial Division’s National Conference of the Administrative Law Judiciary.” So it’s basically in my view a race-based attack on Central American asylum seekers.”

Because of this, Matter of AB attracted substantial attention. Sessions invited amicus briefs, and the ABA was one of many organizations that filed one, urging the attorney general to let the case law stand. That brief argues that federal appeals courts and the board of appeals have repeatedly found non-state-sponsored crimes—organized crime, “honor killings,” female genital mutilation—adequate for granting asylum. It also pointed out that the attorney general may not unilaterally overturn decisions of the federal appeals courts; the American Civil Liberties Union later cited this theory when it sued the federal government over AB. It won an injunction in that case in December.

It’s still possible to grant asylum on gang or domestic violence grounds, says retired immigration Judge Carol King, also part of the National Conference of the Administrative Law Judiciary, but everyone doesn’t see it that way.

“The danger is that the agency has been now encouraging judges not even to hold hearings if the cases are based on domestic violence,” says King, now a Berkeley, California-based consultant to immigration lawyers.

GUMMING UP THE WORKS

And that’s just asylum. For the immigration court system as a whole—and especially for working immigration judges—bigger problems have emerged from three decisions from Sessions that constrain judges’ ability to end or pause cases. That could worsen the already substantial backlog of cases in immigration court, which totaled more than 829,000 pending cases as of February, according to Syracuse University’s Transactional Records Access Clearinghouse.

Chief among these is Castro-Tum, the administrative closure case. Administrative closure ends a case without a decision, which permits judges to take cases off their dockets if they’re not ready to go forward. This was Morley’s intention in Castro-Tum, where the judge was concerned that the young man’s address was unreliable. Indeed, Tabaddor says the notice to appear was returned to the court after Castro-Tum was ordered deported; immigrant advocates suspect he may have returned to Guatemala.

There are multiple reasons why a pause might be desirable, McKinney explains. Many immigration cases depend on outside agencies’ actions; the State Department issues visas, and U.S. Citizenship and Immigration Services confers green cards and citizenship. Some benefits are also available through state courts, and cases may hinge on a decision from a police agency or an expert of some kind.

For example, McKinney cites special immigrant juvenile status. That’s an immigration status granted to minors who were abandoned, abused or neglected by one or both parents, and recipients must get a court order saying so.

“You go through state court, and then you submit an application to USCIS,” McKinney says. “So what we would see generally is these cases would be either administratively closed or given extended continuances, and then the person would pursue the status. Those kids are now being ordered deported.”

Continuances could have helped, but three months after Castro-Tum, Sessions handed down another decision, Matter of LABR, that requires judges to write a full decision every time they grant a continuance.

“I probably got five to 40 requests for continuances daily when I was on the bench,” King says. “It discourages granting continuances because they’re not requiring the same sort of diligence if a judge denies the continuance.”

Carol King

Photo of Carol King by Allan Brill

That’s why King believes LABR weighs the decision-making in favor of deportation. It’s also likely to drastically limit judges’ ability to end or postpone cases, along with Castro-Tum and a third decision from Sessions—Matter of SOG and FDB, which limits judges’ ability to terminate or dismiss deportation cases. In addition to making it harder for judges to manage their workloads, King says it’s bad for the system as a whole.

“It means that every case has to come into court, and if it’s not ready to go for some reason, it has to be reset in court,” she says. “It encourages double-booking of cases … which means that parties are not encouraged to be prepared.”

For clients and practitioners, McKinney says the end result is likely to be a flood of appeals.

“We had a 10-year-old ordered deported [while waiting for a USCIS decision],” he says. “Do you think we just said, ‘OK, judge,’ with the 10-year-old and then just took our order of deportation? No, we appealed!” After the Board of Immigration Appeals, litigants can take their cases to the federal appeals court for their circuits, and McKinney believes many will. Thus, he predicts that much of the immigration court backlog will filter up to the appeals courts in a few years.

CARROT OR STICK?

The DOJ is well aware of the backlog and has hired judges aggressively to address it. Several of the actions Sessions took on immigration were announced as ways to address that backlog.

That includes another of his controversial decisions: imposing quotas on immigration judges. Starting with the 2019 fiscal year, judges who want to be rated “satisfactory” on their performance reviews must complete at least 700 cases per year. No more than 15 percent of those cases should be overturned on appeal. There are also completion requirements for specific types of cases. A software dashboard allows judges to check their progress daily.

Asked about this in December, Executive Office for Immigration Review spokeswoman Kathryn Mattingly pointed the ABA Journal to a public conversation that agency Director James McHenry had in May 2018 with Andrew Arthur, executive director of the restrictionist Center for Immigration Studies. McHenry told Arthur that EOIR plans to take circumstances into account when evaluating judges under the new standards—most likely in fall 2019. However, McHenry said EOIR believes that the numbers chosen are reasonable expectations for experienced and properly trained judges.

The NAIJ and some retired judges don’t agree, in part because two judges may handle very different kinds of dockets. Cases involving serious criminal convictions, for example, might be quicker than asylum cases involving unaccompanied minors.

McHenry also testified about the changes before Congress, where he said the performance measures were “neither novel nor unique to EOIR,” and in line with measures recommended by the ABA and used by other federal administrative law systems.

Tabaddor sees that differently.

“The numbers are used as what I would say a carrot in many courts; it’s used to evaluate whether [changes] are needed,” she says. “But no legitimate court uses quotas and deadlines as a stick to put a judge’s job on the line, which directly interferes with their ability to sit impartially on a case.”

The ABA Judicial Division’s 2005 Guidelines for the Evaluation of Judicial Performance do not mention case completions. They say judges should be evaluated on legal ability, integrity, communication, professionalism and administrative ability. They also say evaluations shouldn’t compromise judicial independence and “should be free from political, ideological and issue-oriented considerations.”

King doesn’t think that’s the case here.

“To have judges evaluated on how quickly they’re pushing cases through the system is a really, really dangerous thing to do,” she says. “Because you’re basically tying the judges’ job security to whether they’re pushing cases through, and it’s clear from this administration that their idea with pushing cases through the system is to deny as many as possible.”

Tabaddor sees this as another encroachment on immigration judges’ independence.

“It’s basically psychological warfare with judges, [creating] a constant reminder of their numbers through this dashboard and a constant pressure to reach these unreasonable goals,” she says.

McKinney says he has seen this play out in practice. In one case, he discovered that his client’s minor child had been sexually assaulted in their home country, which became important to the family’s asylum application. The minor had not spoken to a mental health counselor, so McKinney moved for a continuance to allow her to do that. The judge denied it, in part because the evidence for the assault was not from a mental health professional.

“So what we got was … only half-baked consideration, because obviously in the motion we are asking for the time to talk to the precise professional that the judge wanted the minor child to talk to,” he says. “That is the pressure these judges are under.”

JOB OFFERS RESCINDED

The Justice Department actions raised earlier in this story may be concerning to some people, but they’re perfectly legal. However, there are also allegations that the Justice Department is taking politics into account in hiring immigration judges, who are part of the civil service system. The allegations have not been proved—but if true, they might break the law.

Washington, D.C., labor law attorney Zachary Henige says he has been approached by several people who were offered jobs as immigration judges or members of the Board of Immigration Appeals but had those offers rescinded after the 2016 election for what they believe are political reasons. The ABA Journal spoke to Henige about Dorothea Lay, the only client who has authorized him to discuss her case.

Zachary Henige

Photo of Zachary Henige courtesy of Kalijarvi, Chuzi, Newman & Fitch.

Lay has spent 25 years in the federal government’s immigration services agencies, and she is currently at USCIS. She was offered a job at the appeals board in October 2016. This required a fresh background check (she already has clearance at her existing job), so she understood that she would have to wait to finalize the job.

In late February 2017, Lay did hear back—but only via a two-sentence letter. It said that during the time it had taken to complete the background check, the needs of the agency had evolved, so EOIR was withdrawing the offer. However, the letter was postmarked on the same day that EOIR announced it would expand the number of seats on the board from 17 to 21—requiring four new hires. That’s one reason Lay was not convinced the agency’s needs had changed.

Another was that two of Lay’s recommenders were political appointees of Democrats. Her application also showed that she had worked on issues the Trump administration strongly opposed, including domestic violence as a basis for asylum, the issue in AB. Thus, it would have been easy to guess her politics. Asked about the allegations, EOIR spokeswoman Mattingly did not address them specifically, instead redirecting her comments about others who were hired.

Lay is pursuing a complaint through the federal government’s Office of Special Counsel, an independent agency that investigates alleged violations of the merit system for federal employees. Henige says he has been approached by others who had job offers rescinded after the election, not all of whom retained him.

Members of Congress have also gotten involved. In April 2018, Democratic Reps. Elijah Cummings of Maryland, Don Beyer of Virginia and Lloyd Doggett and Joaquin Castro of Texas wrote a letter to the Justice Department, saying multiple people had approached their offices after having job offers suspended or withdrawn for suspected political reasons.

Six people were hired not long after the letter, according to a statement from Cummings and Doggett. The DOJ did not make its response public, but that response was apparently leaked to Fox News, which said the DOJ acknowledged that 14 people were no longer under consideration for jobs, and gave nonpolitical explanations for all of those decisions.

Henige notes that there’s precedent for improperly politicized hiring, including the 2008 inspector general report from the DOJ. After that became a scandal in 2007, then-Attorney General Alberto Gonzales implemented a hiring process intend-ed to insulate the immigration courts from political considerations, with final candidate recommendation duties shared by the EOIR director, a senior career employee and a senior political appointee.

In 2017, however, Sessions authorized substantial changes to that process, according to a memo uncovered by Human Rights First, a New York-based nonprofit that advocates for human rights and the rule of law, through the Freedom of Information Act. Those changes removed the EOIR director or his designee from the final recommendation stage and removed the chief immigration judge from an earlier stage. The effect is less direct oversight from the agency that will actually employ the judges, and a greater proportion of responsibility to the political appointee.

HIT THE ROAD, JUDGE

Immigration judges aren’t on the edge of revolt. Not every judge agrees with the NAIJ or the retired judges quoted for this article. Arthur, for example—a retired immigration judge—has praised both the use of self-certifications and some of the decisions Sessions made that way.

Perhaps more importantly, immigration judges have limited recourse. As career federal employees, they aren’t legally permitted to strike, Tabaddor says, and lawsuits are limited to cases of individual judges with specific grievances. She says labor union negotiations have been minimally helpful. The grievance filed after the cases were taken from Morley was denied by EOIR last fall on the grounds that EOIR’s actions were lawful, and the NAIJ has merely filed formal correspondences on other matters.

Ashley Tabaddor

Photo of Ashley Tabaddor by Melodi Miremadi

That’s why Tabaddor wants a more permanent solution: Take the immigration courts out of the Justice Department and put them into an independent agency.

“It’s been done with the bankruptcy courts, it’s been done with the Court of Federal Claims, it’s been done with Tax Court,” she says. “Having a court within the same agency that basically has a law enforcement mandate cannot be defended.”

Mattingly says EOIR believes this is unnecessary and would take substantial resources. But it’s a long-standing goal—not just for NAIJ, but for the ABA House of Delegates, which called for independent immigration courts in 2010’s Resolution 114F. More recently, former ABA President Hilarie Bass testified before the Senate Judiciary Committee’s Subcommittee on Border Security and Immigration in 2018 in favor of independent immigration courts, as did Tabaddor. Arthur testified against it, citing constitutional concerns. Immigration court independence has also long been on the wish lists of AILA and the Federal Bar Association.

The four organizations have been working on legislation to make that a reality, McKinney says, though the coalition differs on details of how best to structure the agency. But the goal is the same: insulating the immigration courts from politics by moving them into an independent agency.

McKinney, who is actively involved in the effort through AILA, notes that major agency reforms don’t happen overnight—but he’s bullish about the possibilities.

“We have seen some genuine interest, and now that the Democrats are taking control of the House, we will see if that can turn into actual legislation,” McKinney says. “My heart goes out to the literally thousands of people who are going to be victims of this flawed system until the day comes that we can get it fixed. But I believe that we can get it fixed.”

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Jeremy McKinney is right. Thousands of humans have been and will continue to be victimized by this screwed up system until it finally gets fixed. Immigration Judges have become “robed pawns” in what has become a cruel parody of justice. And, to be honest about it, far, far too many Article III Judges “punt” on their oaths of office by giving unwarranted “deference” to a system that merits none. Indeed, in a “court” controlled by prosecutors and driven by overtly political, restrictionist agendas, it would make much more sense and be fairer to presume that each removal order is biased in favor of DHS unless the DOJ can establish otherwise.

PWS

03-29-19

PACIFIC STANDARD: The Call For An Independent Article I U.S. Immigration Court Gets Louder! — Systemic Failure Of Due Process “At The Retail Level” Threatens Our Entire Justice System! — “Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case.”

https://apple.news/Ai3XNRy5DTI2o3SbYAJuS_A

Massoud Hayoun reports for Pacific Standard:

Is It Time to Bring the Nation’s Immigration Courts Under the Judicial Branch?

U.S. immigration courts face an “existential crisis.” The American Bar Association says it has a solution.

The American Bar Association is renewing calls for lawmakers to overhaul the nation’s overwrought immigration court system by making the courts independent from the Department of Justice, and therefore from the Trump administration. The association is joined by a broad array of legal workers in accusing the administration of enacting policies that pressure immigration judges to ramp up deportations, with no apparent concern for due process or the rule of law.

The United States immigration court system is not part of the judicial branch, but rather is governed by the Department of Justice’s Executive Office for Immigration Review. The office was created to oversee the courts in 1983; previously they were under the control of the Immigration and Naturalization Service, also under the Department of Justice. Last week, the ABA identified an “existential crisis” within this system, finding it subject to “political interference,” to “policies and practices that threaten due process,” and to “longstanding and widespread under-resourcing.” It calls for a Congressional vote to establish the courts as an independent entity per Article I of the Constitution—also known as an Article I Court.

Shortly after President Donald Trump’s inauguration, his administration told the press that it would work to slash an overwhelming backlog of immigration court cases, restoring an overburdened, sclerotic system to working shape. What followed were a series of policies—among which were quotas on case closures—that observers blame for threatening due process in an effort to facilitate mass-deportation of immigrants, and for exacerbating the immigration court backlog by funneling unprecedented numbers of immigrants into the system.

The Department of Justice did not respond to a request for comment.

Ashley Tabaddor, president of the National Association of Immigration Judges, expresses her organization’s support for an independent immigration court. The ABA, NAIJ, and other organizations, including the Federal Bar Association, began to call for an independent immigration court system long before the Trump administration, during the presidency of Barack Obama.

“We hope that this administration and those mindful of a reasonable approach realize this isn’t a right-wing or left-wing answer; it’s an American answer that protects both efficiency and integrity of the courts,” Tabaddor says. “It hasn’t only been this administration that has pushed back on the idea of an independent [immigration court system]. Unfortunately, part of human nature is it resists what it perceives as giving up power. It means the executive branch would lose direct influence over how [the courts are] used.”

Although the Trump administration has repeatedly acknowledged the backlog and overwhelming challenges faced by immigration judges, it has also opposed an independent immigration court system. James McHenry, director of the Department of Justice office that oversees the courts, told a Senate committee in April that independent courts would not “address any of the core challenges facing the immigration courts.” McHenry repeatedly maintained that all immigrants are afforded due process.

Legal analysts argue, by contrast, that the current status of immigration courts as under the purview of the Department of Justice has politicized their work. “Our current system permits the political branches of government to yield tremendous power over immigration enforcement policies and practices,” says Kathleen Kim, an immigration law professor at Loyola Law School in Los Angeles. “Without an independent judiciary, our system of government provides no check on abuse of that power and immigration court decisions suffer from the taint of impartiality.”

And with a court beholden to the president’s political agenda, immigrant lives—and the Constitution’s guarantees of fair trials—hang in the balance. “As we have seen in the anti-immigrant rhetoric of the Trump administration, the rights of immigrants have become a political football,” says Margaret Russell, a constitutional law professor at Santa Clara University. “Only independent immigration courts can provide a fair forum, as free from partisan politics as possible.”

“Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case,” says Julia I. Vázquez, an immigrant rights professor at Los Angeles’ Southwestern Law School.

Late last year, Pacific Standard reported the story of a Guatemalan woman whose asylum petition had been denied even before a judge had an opportunity to review documents in support of her case, including her initial asylum declaration.

Despite the administration’s promises to help improve the immigration court system, analysts have decried a number of policies that they say have undermined the courts. In April of 2018, then-Attorney General Jeff Sessions required that immigration judges close at least 700 cases a year—with a low rate of appeal—in order to receive a favorable performance review. The move, ostensibly aimed at reducing the backlog, pressured the judges to plow through their caseloads, analysts have said, threatening due process for immigrants. And the move backfired: Rushed rulings are frequently appealed, further compounding the backlog.

In another similar measure in May, Sessions stopped the use of administrative closures, in which immigration judges withhold judgment on a case while immigrants make formal petitions for legal status. Administrative closures had helped judges to prioritize their dockets and avoid getting bogged down with lower-urgency cases.

Coupled with the administration’s unprecedented push to arrest undocumented immigrants with no criminal record, these decisions have made the court’s backlog grow nearly 50 percent under the Trump administration, according to the Syracuse University non-profit data research center, Transactional Records Access Clearinghouse. In November, there were over 768,000 outstanding cases.

Even with overwhelming concerns over backlog and broader questions about due process, it remains highly improbable that the immigration courts will become independent under a divided Congress and the Trump administration. “Keeping immigration courts within the executive branch will ensure adherence to the Trump administration’s anti-immigrant policy objectives,” Kim says.

What’s more, control of the immigration courts will enable the Trump administration to continue to ramp up deportations without the approval of a split Congress. “The opposition [to independent courts] is likely to defend executive branch oversight of immigration courts as the best antidote to Congressional inaction,” Russell says.

NAIJ’s Tabaddor says that, while it is not likely that immigration courts will be made independent anytime soon, there’s growing awareness among lawmakers from both parties of the problems with the system.

“As we see the expansion of the groundswell of support [for independence], it’ll be difficult for Congress not to act,” she says. “Of course, you always have to have hope in life, otherwise it’s not worth it.”

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EOIR’s “no problem” response to the unfolding disaster which, under DOJ political direction, its own bureaucrats have helped engineer “doesn’t pass the straight face test.”

Of course, giving control of Immigration Court dockets back to the judges who actually have to hear and decide cases is the necessary first step in rationalizing the system, ending the DOJ/EOIR’s “Aimless Docket Reshuffling,” and establishing priorities based on fundamental fairness to all parties and overall judicial efficiency, not solely the “DHS enforcement priority of the day.”

Nobody can solve overnight all the problems in our Immigration Courts that have built up and been allowed to fester over decades. But, placing the courts under apolitical, professional judicial control, like all other successful courts, would be a necessary first step from which “best practices” and other efficiencies that are consistent with Due Process would flow.

PWS

03-27-19

“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

ASSOCIATION OF DEPORTATION DEFENSE ATTORNEYS (“ADDA”)

NEW YORK CITY 

MARCH 21, 2019

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT”

BY

PAUL WICKHAM SCHMIDT

U.S. IMMIGRATION JUDGE (RETIRED)

Good evening. Thanks so much for coming out tonight. As you know, I’m retired, so I no longer have to give my famous, or infamous, “super-comprehensive disclaimer.” However, I do want to hold my fellow panelists, ADDA, and anybody else of any importance whatsoever “harmless” for my following remarks.

They are solely my views, for which I take full responsibility. That’s right, no party line, no “bureaucratic doublespeak,” no BS. Just the truth, the whole truth, and nothing but the truth, of course as I define truth.

In my brief “5-4-1 program,” I’m going to tell you five horrible problems infecting justice and Due Process in today’s U.S. Immigration Courts; 4 needed reforms, and one solution.

First, the problems, with which I’m sure most of you are painfully familiar. This isn’t a “court system” as any right-thinking person would envision it.

First, unlike any normal court system, the chief prosecutor, the Attorney General selects, directs, and “supervises” the “judges.” Not surprisingly, over the last decade, over 90% of the judges have come directly from government or prosecutorial backgrounds. Well-qualified candidates from private practice, NGOs, and academia have effectively been excluded from participation in today’s immigration judiciary. As part of his “improper influence” over the Immigration Courts, the Attorney General has imposed, over the objection of all judges I’m aware of, demeaning and counterproductive “production quotas” that elevate productivity and expediency over quality, Due Process, and fundamental fairness. 

Second, notwithstanding that, according to the Supreme Court, “everything that makes life worth living” might be at issue in Immigration Court, there is no right to appointed counsel. Therefore, DOJ has taken the absurd position that infants, toddlers, and others with no understanding whatsoever of our complicated legal, asylum, and immigration systems are forced to “represent themselves” in life or death matters against experienced ICE Counsel. The Government disingenuously claims that this complies with Due Process.  

Obviously, these first two factors give the DHS a huge built-in advantage in removal proceedings. But, sometimes that isn’t enough. Somehow, despite the odds being stacked against them, the individual respondent or applicant prevails. That’s when the “third absurdity” comes in to play.

The chief prosecutor, the Attorney General, can reach into the system and change any individual case result that he or she doesn’t like and rewrite the immigration law in DHS’s favor through so-called “certified precedents.” As you know, former Attorney General Sessions, a committed lifelong xenophobe and the self-proclaimed “king of immigration enforcement” exercised this authority often, more than the preceding two Attorneys General over the eight years they served. Sometimes he intervened even before the BIA had a chance to rule on the case or over the joint objections of both the individual and the DHS.

Fourth, this system operates under an incredible 1.1 million case backlog, resulting largely from what we call “Aimless Docket Reshuffling” or “ADR,” by DOJ politicos and their EOIR underlings. This largely self-created backlog continues to grow exponentially, even with a significant increase in judges, without any realistic plan for backlog reduction. In other words, under the “maliciously incompetent” management of this Administration, more judges has meant more backlog. 

Even more disgustingly, in an attempt to cover up their gross incompetence, DOJ and EOIR have attempted to shift the blame to the victims — asylum applicants, migrants, their hard-working often pro bono or low bono lawyers, and the judges themselves. Sophomoric, idiotic non “solutions” like “deportation quotas for judges,” limitations on legitimate continuances, demeaningly stripping judges of the last vestiges of their authority to manage dockets through administrative closing, and mindlessly re-docketing cases that should remain off docket have been imposed on the courts over their objections. 

The result has been an increase in “Aimless Docket Reshuffling” the only thing that DOJ politicos and EOIR bureaucrats seem to excel in. How many of YOU have been victims of ADR?

Fifth, the Administration, DOJ, and EOIR use so-called “civil immigration detention” mostly in absurdly, yet intentionally, out-of-the-way locations, to limit representation, coerce migrants into abandoning claims or appeals, and supposedly deter future migration, even through there is scant evidence that abusive detention actually acts as a deterrent. This is done with little or no effective judicial recourse in too many cases. Indeed a recent TRAC study shows neither rhyme nor reason in custody or bond decisions in Immigration Court, even in those cases where the Immigration Judges at least nominally had jurisdiction to set bond.

Now, I’ve told you how due process and fairness are being mocked by DOJ and EOIR  in a dysfunctional Immigration Court system where judges have effectively been told to act as “DOJ attorneys” carrying out the policies of their “partners” in DHS enforcement, supposedly a separate party to Immigration Court proceedings but now “driving the train.”

Here are the four essential reforms. First, and foremost, a return to the original “Due Process Focus” of the Immigration Courts: through teamwork and innovation be the world’s best courts guaranteeing fairness and Due Process for all. DOJ politicos and EOIR bureaucrats must be removed from their improper influence over this system that has turned it into a tool of DHS enforcement. Everything done by the courts must go through a “Due Process filter.” 

Second, replace the antiquated, inappropriate, bloated, and ineffective “Agency-Style Structure” with a “Court-Style Structure” with sitting judges rather than DOJ politicos and EOIR bureaucrats in charge. Court administration should be decentralized through local Chief Judges, as in other systems, appointed competitively through a broad-based merit system and required to handle a case load. Sitting judges, not bureaucrats, must ultimately be in charge of administrative decisions which must be made in a fair and efficient manner that considers the legitimate needs of DHS enforcement, along with the needs of the other parties coming before the court, and results in a balanced system, rather than one that inevitably favors DHS enforcement over Due Process, quality, and fairness.

Third, create a professional administrative office modeled along the lines of the Administrative Office for U.S. Courts to provide modern, effective judicial support and planning. The highest priorities should be implementing a nationwide e-filing system following nearly two decades of wasted and inept efforts by EOIR to develop one, efforts that have once again been put “on hold” due to mismanagement. A transparent, merit-based hiring system for Immigration Judges, with fair and equal treatment of “non-government” applicants and a system for obtaining public input in the process is also a must. Additionally, the courts must be redesigned with the size of the dockets and public service in mind, rather than mindlessly jamming a 21st century workload into “mini-courts” designed for a long bygone era.   

Fourth, a real Appellate Division that performs as an independent court, must replace the “Falls Church Service Center” a/k/a the BIA. The crippling Ashcroft purge-related bogus “reforms” that turned the BIA into a subservient assembly line must be eradicated. The BIA is a so-called “deliberative body” that is far removed from the public it serves and no longer deliberates in a publicly visible manner. The Appellate Division, not politicos and bureaucrats, must be responsible for promulgating precedents in controversial areas, insuring that the generous standards set forth in Cardoza-Fonseca and Mogharrabi are made realities, not just lip service, and reining in wayward judges, the worst of whom have turned some areas into veritable “asylum and due process free zones” resulting in loss of public confidence as well as denial of Due Process and unfair removals.

Some will say that these reforms only deal with two of the five glaring problems — prosecutorial control and political interference. But, an independent, judge-run, Due Process focused U.S. Immigration Court where judges control their own dockets free from political interference and bureaucratic incompetence will be able to work with both private entities and the DHS to solve the problems leading to lack of representation, “Aimless Docket Reshuffling” and backlog building, and abusive use of immigration detention. 

No, all problems that have been allowed to fester and grow over decades of calculated indifference and active mismanagement won’t be solved “overnight.” Additional legislative fixes might eventually be necessary. But, fixing Due Process is a prerequisite that will enable other problems and issues to be constructively and cooperatively addressed, rather than just being swept under the carpet in typical bureaucratic fashion.

So, now the “One Solution:” Congress must create an independent Article I U.S. Immigration Court. That’s exactly what the ABA Commission on Immigration recommended in a comprehensive study and report released yesterday. 

Thus, the ABA joins the FBA, AILA, and the NAIJ, all organizations to which I belong, in recommending an Article I legislative solution. Significantly, after watching this Administration’s all out assault on Due Process, common sense, truth, the rule of law, human decency, and best practices, the ABA deleted a prior “alternative recommendation” for an independent agency within the Executive Branch. In other words, we now know, beyond any reasonable doubt, that the Executive Branch is both unwilling and unable to run an independent court system in accordance with Due Process. 

I highly recommend that you read the comprehensive ABA report in two volumes: Volume I is an “Executive Summary;” Volume II contains the  “Detailed Findings.” You can find it on the ABA website or on immigrationcourtside.com my blog, which, of course, I also highly recommend.

In closing, we need change and we need it now! Every day in our so-called “Immigration Courts” Due Process is being mocked, fundamental fairness violated, and unjust results are being produced by a disastrously flawed system run by those with no interest in fixing it. Indeed, one of the stunning recommendations of the ABA is that no further judges be added to this totally dysfunctional and out of control system until it is fixed. 

As the great Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.” Tell your elected representatives that you’ve had enough injustice and are sick and tired of being treated as actors in a repertory company specializing in “theater of the absurd” masquerading as a “court system.” Demand Article I now! 

Thanks for listening! Join the New Due Process Army, do great things, and Due Process Forever!

(03-21-19)

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The horror stories from those actually attempting to practice in the NY Immigration “Courts,” the examples of “Aimless Docket Reshuffling” (“ADR”) from my friend, “Our Gang” colleague, and fellow panelist Retired U.S. Immigration Judge Patty McManus, and pressing need for an independent Article I Court to replace this dishonest and dysfunctional mess described by fellow panelist NY Attorney Jake LaRaus, of Youman, Mateo, & Fasano were most compelling.

Recurring complaints from the audience were the unequal treatment of private attorneys and DHS Counsel, the glaringly inappropriate deference shown by some Immigration Judges to DHS, and the unwillingness of some judges to enforce rules against the DHS. In other words, many of the things that EOIR originally supposed to “cure” are now “back in spades.” Everyone echoed the theme that this is a system in regression, where things that “worked” at one time have now been intentionally disabled by DHS and EOIR.

Independence and competent, professional, apolitical judicial management by judges would go a long way toward reducing today’s
Government-created backlogs. The problem is definitely not, as some would claim, the number of asylum seekers. Indeed legitimate asylum seekers all over this system who have been waiting years for their cases to be heard and who have time and time again been the victims of “ADR” and politicized meddling with the legal standards are among the many victims of this broken system.

We should all be ashamed of this disgraceful perversion of our Constitution and grotesque waste of Government money going on every day. The solution isn’t “rocket science;” it’s Article I. An achievable idea “whose time has come.”

PWS

03-22-19