IMMIGRATION COURTS: WILL TRUMP’S SHUTDOWN BE THE FINAL NAIL IN THE COFFIN? — Demoralized, Backlogged, Mismanaged, Immigration Courts Experiencing A New Wave Of Politically Caused “Aimless Docket Reshuffling,” As More Cases That Should Have Been Completed Are Mindlessly “Orbited” to 2021 & Beyond Because Of Trump’s Intransigence!

https://www.washingtonpost.com/world/national-security/shutdown-worsens-strain-on-us-immigration-system/2019/01/02/97dd0ef6-0ebe-11e9-84fc-d58c33d6c8c7_story.html

Nick Miroff reports in the WashPost:

. . . .

The Executive Office for Immigration Review, the immigration court system run by the Justice Department, did not respond to requests for comment, because its public affairs staff has been furloughed.

But Ashley Tabaddor, president of the National Association of Immigration Judges, the union that represents the country’s approximately 400 judges, said the impact of the disruption has been “immense.”

Immigration judges all received furlough notices on Dec. 26, she said, but many have since been instructed to return to court to adjudicate cases of detainees in immigration custody. The judges are also working without pay.

Some of those judges have their calendars booked three to four years in advance because of the backlog of cases, Tabaddor said, so hearings that have been canceled in recent days cannot be rescheduled until 2021 or beyond.

“The irony is not lost on us,” Tabaddor said, “that the immigration court is shut down over immigration.”

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

Read Nick’s complete report at the link.

This confirms what many have been saying all along: Trump neither knows nor cares about effective immigration enforcement. No, he’s all about blowing racist “dog whistles” for the benefit of a White Nationalist “base.”

I remember how previous shutdowns were the beginning of the “Aimless Docket Reshuffling” that has so damaged our Immigration Courts and artificially jacked up the backlog. First, the politicians show their disdain for the Government they are supposed to be running and the civil servants who are actually doing the work of that Government. Then the politicos at DOJ show their disrespect by designating most Immigration Court functions as “nonessential.” Then, when work resumes, EOIR basically says “no heroics, just put all the cancelled cases at the end of the docket.” So much for urgency, priorities, Due Process, and respect.

In fact, an operating, well-staffed, highly professional Immigration Court with expertise in asylum and other complex provisions of immigration law and an unswerving commitment to enforcement of Due Process for all individuals within its jurisdiction is essential for effective immigration enforcement. Indeed, this was “at least one central reason” for the removal of the Immigration Courts from the “Legacy INS” and the establishment of EOIR as a separate quasi-judicial entity within the DOJ during the Reagan Administration.

For a time, EOIR made substantial progress toward professionalism and judicial independence until the advent of Attorney General John Ashcroft and his notorious nativist sidekick Kris Kobach in 2001. Thereafter, it’s been pretty much straight downhill, starting with Ashcroft’s trashing of the BIA and continuing through Sessions’s gross mismanagement and overt attacks on judicial independence, due process, and substantive asylum law.

Today, the Immigration Court system is in shambles, unable to provide either consistent fairness and Due Process to respondents or timely removal orders for those who might be legitimate enforcement priorities for the DHS. The BIA fails to provide true deliberation, commitment to Due Process, and expertise, particularly in the areas of asylum, CAT, and the provisions for removal of certain criminals. This, in turn, erodes deference and debilitates efficient review from the “real” Article III Courts.

The Trump Administration has made a complete hash out of the immigration laws. However, at some point, reasonable, responsible leadership will return to the political scene. When it does, an independent Article I U.S. Immigration Court must be at or near the top of the legislative agenda.

Until then, the dysfunction will increase unless and until the Article IIIs figure out and impose a temporary fix. Otherwise, they are likely to have little if any judicial time to devote to anything other than the chaos thrust upon them by the rapidly failing Immigration Court system.

PWS

01-05-19

TRAC: ADMINISTRATION CONTINUES TO “JACK” U.S. IMMIGRATION COURT BACKLOG – 809,000 ACTUALLY PENDING, 330,000 CLOSED CASES “IN LINE” TO BE ARTIFICIALLY ADDED – Adverse Effects Of Sessions’s Xenophobic Views & Gross Mismanagement Continue To Impede Due Process Even After His Departure! — Across The Board Failure, Even On “Priority Detained” Cases!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASEGreetings. The Immigration Court backlog continues to rise. As of November 30, 2018, the number of pending cases on the court’s active docket grew to 809,041 cases. This is almost a fifty percent increase compared to the 542,411 cases pending at the end of January 2017 when President Trump took office. This figure does not include the additional 330,211 previously completed cases that EOIR placed back on the “pending” rolls that have not yet been put onto the active docket.The state of Maryland continues to lead the pack with the highest rate of increase in pending cases since the beginning of FY 2017 — up by 107 percent. In absolute terms, California has the largest Immigration Court backlog – 146,826 cases waiting decision – up by 54 percent. These results are based upon proceeding-by-proceeding internal Immigration Court records obtained and analyzed by the Transactional Records Access Clearinghouse at Syracuse UniversityJust in the last two months, the Immigration Court active backlog has grown by over 40 thousand cases. Particularly high growth rates of 10 percent or higher were experienced at nine Immigration Courts. The two courts with the highest rate of growth in their backlog were two courts at ICE detention facilities. The Eloy Immigration Court in Arizona saw its backlog increase by 144 percent, while the Conroe Immigration Court (Houston SPC) in Texas had an increase of 62 percent. These increases occurred even though the court assigns the highest priority to hearing detained cases.

For the full report go to:

http://trac.syr.edu/immigration/reports/542/

In addition, many of TRAC’s free query tools – which track the court’s active backlog, new DHS filings, court dispositions and much more – have now been updated through November 2018. For an index to the full list of TRAC’s immigration tools go to:

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

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

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

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

http://facebook.com/tracreports

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

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

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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

More judges, more backlog, due to “gonzo” enforcement, politicization, cratering morale, and just plain old mismanagement. When will Congress and/or the Article IIIs step in and put this dying system out of its misery before the DOJ politicos can do any more damage?

Sessions launched a three-point attack on already inadequate Due Process in U.S. Immigration Court by:

Removing Immigration Judges’ last vestiges of authority to independently manage their dockets;
Severely limiting judicial discretion, thereby effectively reducing Immigration Judges to the status of DHS adjudicators; and
Attacking the well-established rights of asylum seekers, particularly those from the Northern Triangle.

The result has been chaos in the courts. Even more wildly inconsistent decisions from Immigration Judges, cases that should have been “slam dunk” asylum grants, stipulated grants by ICE, or not in Immigration Court in the first place now occupying docket space and being “fully litigated,” thereby tying up more judicial time. Meanwhile judges are being subjected to sophomoric “production quotas,” which were almost universally opposed by everyone working in the system, and forced over scheduling. “Aimless Docket Reshuffling” has gone into full gear. Not surprisingly, there are more appeals, more remands from the Article III Courts, and grossly unfair and disparate treatment of those who are detained and or unrepresented. It’s basically the “worst of all worlds.” All of this is continuing under Whitaker.

I hope that at least the House Committees will look into how political mismanagement is wasting the taxpayers’ money and mocking due process, with no rational solution in sight! There needs to be some accountability for this grotesque fraud, waste, and abuse engineered by this Administration!

PWS

12-18-18

INSIDE EOIR: LA TIMES: Former EOIR Attorney Reveals Truth Of Sessions’s Ugly, Corrupt, Mean-Spirited, Attack On Judicial Independence & The Totally Demoralizing Effect On Judges & Other Dedicated Civil Servants – No Wonder This “Captive Court System” Is A Dysfunctional Mess Being Crushed Under An Artificially Created “Sessions Legacy Backlog” of 1.1 Million+ Cases With Neither Sane Management Nor Any End In Sight!

https://apple.news/AnkcqK5ITQ76IwHCZq2FnBw

I resigned from the Department of Justice because of Trump’s campaign against immigration judges

Gianfranco De Girolamo November 26, 2018, 3:05 AM

One of the proudest days of my life was Dec. 16, 2015, when I became a naturalized citizen of the United States.

I shed tears of joy as I swore allegiance to the United States at the Los Angeles Convention Center, along with more than 3,000 other new Americans. I was celebrating a country that had welcomed me with open arms, treated me as one of its own and opened doors I hadn’t known existed. Just a few years before, in the remote village in southern Italy where I grew up, this would have been unimaginable.

Another of my proudest moments came just a year later, when I was awarded a coveted position in the U.S. Department of Justice. This happened in late November 2016, a few weeks after President Trump was elected.

Like many, I harbored reservations about Trump. But I did not waver in my enthusiasm for the job. In law school, l had learned about the role of civil servants as nonpolitical government employees who work across administrations — faithfully, loyally and diligently serving the United States under both Republicans and Democrats.

I was designated an attorney-advisor and assigned to the Los Angeles immigration court. There, I assisted immigration judges with legal research, weighed in on the strengths and weaknesses of parties’ arguments and often wrote the first drafts of judges’ opinions.

Soon enough, however, the work changed. In March 2018, James McHenry, the Justice Department official who oversees the immigration courts as head of the Executive Office for Immigration Review, announced a mandate imposing individual quotas on all the judges. Each judge would be required to decide 700 cases per year, he said.

With these new quotas, which went into effect on Oct. 1, immigration judges must now decide between three and four cases a day — while also reviewing dozens of motions daily and keeping up with all their administrative duties — or their jobs will be at risk.

The announcement of the quotas in March was the first in a series of demoralizing attacks on immigration judges this year. In May, Atty. Gen. Jeff Sessions, since fired by Trump, personally issued a decision that placed limits on the ability of immigration judges to use a practice known as administrative closure, which allows judges to put cases on indefinite hold, and which, in immigration cases, can be a tool for delaying deportation orders.

The Justice Department enforced the decision in July by stripping an immigration judge in Philadelphia of his authority in scores of cases for continuing to use administrative closure.

All this was in addition to a barrage of disparaging comments made directly by the president. In June, Trump tweeted that there is no reason to provide judges to immigrants. He also rejected calls to hire more immigration judges, saying that “we have to have a real border, not judges” and asking rhetorically, “Who are these people?”

The demoralizing effect on immigration judges was palpable. Morale was at an all-time low. I was new to civil service, but these judges, some of whom have served continuously since the Reagan administration, made clear that this was an unprecedented attack on the justice system.

Enter the Fray: First takes on the news of the minute from L.A. Times Opinion »

I’ve long admired the independence and legitimacy that the judiciary enjoys in the United States, so I found the attacks on judges deeply disturbing and troubling. They reminded me of Trump’s Italian alter-ego, Silvio Berlusconi, who spent most of his tenure as Italy’s prime minister fighting off lawsuits by delegitimizing and attacking the judiciary, calling it “a cancer of democracy” and accusing judges of being communist.

I voiced my concerns to my supervisors and directly to Director McHenry in a letter. Seeing no opportunity to make a positive difference and unwilling to continue to lend credence to this compromised system, I submitted my resignation in July, explaining my reasons in a letter.

This was not how I wanted to end my career in government. I had hoped to serve this country for the long haul. But I couldn’t stand by, or be complicit in, a mean-spirited and unscrupulous campaign to undermine the everyday work of the Justice Department and the judges who serve in our immigration courts — a campaign that hurts many of my fellow immigrants in the process.

Gianfranco De Girolamo was an attorney at the Department of Justice from 2017 to 2018.

Follow the Opinion section on Twitter @latimesopinion or Facebook

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

Thanks for speaking out Gianfranco! I published an earlier, at that time “anonymous,” letter from Gianfranco at the time of his resignation. I’m sure there are many others at EOIR who feel the same way. But, they are “gagged” by the DOJ — threatened with job loss if they “tell the truth” about the ongoing legal farce and parody of justice within our Immigration Courts.

It’s a “closed system” at war with the public it serves, the dedicated attorneys who represent migrants, the essential NGOs who are propping up what’s left of justice in this system, and the very civil servants who are supposed to be carrying out the courts’ mission. What a horrible way to “(not) run the railroad.”

Someday, historians will dig out the whole truth about the “Sessions Era” at the DOJ and his perversion of justice in the U.S. Immigration Courts. I’m sure it will be even worse than we can imagine. But, for now, thanks to Gianfranco for shedding at least some light on one of the darkest and most dysfunctional corners of our Government!

PWS

11-16-18

GONZO’S WORLD – NEW TRAC DATA SHOWS SESSIONS’S IDEOLOGICALLY DRIVEN INTERFERENCE AND GROSS MISMANAGEMENT HAS “ARTIFICIALLY JACKED” THE U.S. IMMIGRATION COURT BACKLOG TO OVER 1 MILLION CASES! – And, That’s With More Judges — “Throwing Good Money After Bad!”

http://trac.syr.edu/immigration/reports/536/

Immigration Court Backlog Surpasses One Million Cases

Figure 1. Immigration Court Workload, FY 2018

The Immigration Court backlog has jumped by 225,846 cases since the end of January 2017 when President Trump took office. This represents an overall growth rate of 49 percent since the beginning of FY 2017. Results compiled from the case-by-case records obtained by TRAC under the Freedom of Information Act (FOIA) from the court reveal that pending cases in the court’s active backlog have now reached 768,257—a new historic high.

In addition, recent decisions by the Attorney General just implemented by the Executive Office for Immigration Review (EOIR) have ballooned the backlog further. With a stroke of a pen, the court removed 330,211 previously completed cases and put them back on the “pending” rolls. These cases were previously administratively closed and had been considered part of the court’s completed caseload[1].

When the pending backlog of cases now on the active docket is added to these newly created pending cases, the total climbs to a whopping 1,098,468 cases! This is more than double the number of cases pending at the beginning of FY 2017.

Pending Cases Represent More Than Five Years of Backlogged Work

What does the pending case backlog mean as a practical matter? Even before the redefinition of cases counted as closed and cases considered pending, the backlog had reached 768,257 cases. With the rise in the number of immigration judges, case closures during FY 2018 rose 3.9 percent over FY 2016 levels, to 215,569. In FY 2017, however, closure rates had fallen below FY 2016 levels, but last year the court recovered this lost ground[2].

At these completion rates, the court would take 3.6 years to clear its backlog under the old definition if it did nothing but work on pending cases. This assumes that all new cases are placed on the back burner until the backlog is finished.

Now, assuming the court aims to schedule hearings eventually on all the newly defined “pending” cases, the backlog of over a million cases would take 5.1 years to work through at the current pace. This figure again assumes that the court sets aside newly arriving cases and concentrates exclusively on the backlog.

Table 1. Overview of Immigration Court Case Workload and Judges
as of end of FY 2018

Number of
Cases/Judges Percent Change
Since Beginning
of FY 2017

New Cases for FY 2018 287,741 7.5%

Completed Cases for FY 2018 215,569 3.9%

Number of Immigration Judges 338/395* 17.0%

Pending Cases as of September 30, 2018:

On Active Docket 768,257 48.9%

Not Presently on Active Docket 330,211 na

Total 1,098,468 112.9%

* Immigration Judges on bench at the beginning and at the end of FY 2018; percent based on increase in judges who served full year.
** category did not exist at the beginning of FY 2017.

Why Does the Backlog Continue To Rise?

No single reason accounts for this ballooning backlog. It took years to build and new cases continue to outpace the number of cases completed. This is true even though the ranks of immigration judges since FY 2016 have grown by over 17 percent[3] while court filings during the same period have risen by a more modest 7.5 percent[4].

Clearly the changes the Attorney General has mandated have added to the court’s challenges. For one, the transfer of administratively closed cases to the pending workload makes digging out all the more daunting. At the same time, according to the judges, the new policy that does away with their ability to administratively close cases has reduced their tools for managing their dockets.

There have been other changes. Shifting scheduling priorities produces churning on cases to be heard next. Temporary reassignment and transfer of judges to border courts resulted in additional docket churn. Changing the legal standards to be applied under the Attorney General’s new rulings may also require judicial time to review and implement.

In the end, all these challenges remain and the court’s dockets remain jam-packed. Perhaps when dockets become overcrowded, the very volume of pending cases slows the court’s ability to handle this workload – as when congested highways slow to a crawl.

Footnotes

^[1] The court also recomputed its case completions for the past ten years and removed these from its newly computed completed case counts. Current case closures thus appear to have risen because counts in prior years are suppressed. Further, the extensive judicial resources used in hearing those earlier cases are also disregarded.

^[2] For consistency over time, this comparison is based upon the court’s longstanding definition, which TRAC continues to use, that includes administratively closed cases in each year’s count. Under this standard, numbers are: 207,546 (FY 2016), 204,749 (FY 2017), 215,569 (FY 2018).

^[3] The court reports that the numbers of immigration judges on its rolls at the end of the fiscal year were: 289 (FY 2016), 338 (FY 2017), and 395 (FY 2018). The 17 percent increase only considers judges who were on the payroll for the full FY 2018 year. See Table 1. For more on judge hires see: https://www.justice.gov/eoir/page/file/1104846/download

^[4] New court cases based upon court records as of the end of FY 2018 were: 267,625 (FY 2016), 274,133 (FY 2017), and 287,741 (FY 2018). Due to delays in adding new cases to EOIR’s database, the latest counts may continue to rise when data input is complete. TRAC’s counts use the date of the notice to appear (NTA), rather than the court’s “input date” into its database. While the total number of cases across the FY 2016 – FY 2018 period reported by TRAC and recently published by EOIR are virtually the same, the year-by-year breakdown differs because of the court’s practice of postponing counting a case until it chooses to add them to its docket.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

	Number of Cases/Judges	Percent Change Since Beginning of FY 2017
New Cases for FY 2018	287,741	7.5%
Completed Cases for FY 2018	215,569	3.9%
Number of Immigration Judges	338/395*	17.0%
Pending Cases as of September 30, 2018:
On Active Docket	768,257	48.9%
Not Presently on Active Docket	330,211	na
Total	1,098,468	112.9%

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

Yes, as TRAC notes, it has been building for many years. And there are plenty of places to place responsibility: Congress, the Bush Administration, the Obama Administration, the DOJ, DHS, and EOIR itself.

But, there is no way of denying that it has gotten exponentially worse under Sessions. Ideology and intentional “Aimless Docket Reshuffling,” as well as the same ineffective “terrorist tactics, threats, intentionally false narratives, inflammatory and demeaning rhetoric, and just plain willful ignorance” that Sessions employs in his immigration enforcement and prosecutorial programs are the main culprits. And, they aren’t going to stop until Sessions and this AdministratIon are removed from the equatIon. Not likely to happen right now.

So, if the Article IIIs don’t step in and essentially put this “bankrupt dysfunctional mess into receivership” by appointing an independent Special Master to run it in accordance with Due Process, fairness, fiscal responsibility, and impartiality, the whole disaster is going to end up in their laps. That will threaten the stability of the entire Federal Court system — apparently just what White Nationalist anarchists like Sessions, Miller, and Bannon have been planning all along!

Wonder if Las Vegas is taking odds on the dates when 1) the backlog will reach 2 million; and 2) the Immigration Court system will completely collapse?

The kakistocracy in action! And, lives will be lost, people hurt, and responsible Government damaged. More judges under Sessions just means more backlog and more injustice.

PWS

11-06-18

WASHPOST: DON’T SEND TROOPS, GUNS, & MONEY – SEND JUDGES!

https://www.washingtonpost.com/opinions/dont-send-troops-to-the-border-send-judges/2018/11/02/cd54d0f0-deda-11e8-85df-7a6b4d25cfbb_story.html

The Post Editorial Board writes:

PRESIDENT TRUMP has based his midterm election campaign on the specter of an “invasion” by immigrants marching from Central America to the southern border. His demagoguery is disgusting and irresponsible. But there is a real problem of migrants — one that his administration is failing to address.

Many people are crossing the border with their children and applying for asylum, overwhelming existing mechanisms for dealing with asylum seekers. They are feeding what the president calls a “catch-and-release” revolving door for migrants freed as they await hearings to adjudicate their cases, and contributing to a backlog of some 750,000 cases in immigration courts.

A rational response would be to add substantially to the approximately 350 immigration judges, who cannot handle the tens of thousands of asylum claims flooding the immigration courts annually. The administration this year hired a few dozen new judges, a fraction of what is required. As the caseload has more than quadrupled since 2006, the number of judges has not even doubled, according to congressional testimony in April by Judge A. Ashley Tabaddor, president of the National Association of Immigration Judges.

Despite that, Mr. Trump has sneered at the idea of hiring more, even after aides pressed him to do so. “Who are these people?” he raged, before suggesting darkly that adding many new judges would somehow corrupt the system. “Now can you imagine the graft that must take place?” he said.

Granted, the hiring could be challenging, in vetting and cost. But any major challenge involves scaling up resources and personnel, and it’s hard to see why that’s beyond the government’s capabilities.

On the other hand, maybe Mr. Trump prefers having an issue to a solution. He has made it clear he believes the immigration question propelled him into the White House. Now, by ramping up his inflammatory rhetoric, and by advancing over-the-top measures such as sending thousands of troops to the border to fulfill a mission for which they are not trained — Congress has barred troops from law enforcement duties — it seems apparent Mr. Trump has opted for crisis instead of constructive improvements to what he rightly calls a broken system. Instead of deploying thousands of troops, why not hire hundreds of judges?

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

Certainly on the right track here!

But here’s what really needs to happen to address the issue in a rational way:

Send more Asylum Officers to do credible fear interviews at the border;
Send enough private attorneys to represent all arriving migrants before both the Asylum Office and the Immigration Courts;
Allow Asylum Officers to grant temporary withholding of removal under the Convention Against Torture (“CAT”) to the many applicants who have a probability of torture upon return, which clearly happens with “government acquiescence” — or in many cases actual participation or connivance — in the Northern Triangle;
Put the asylum claims of those granted CAT withholding on the “back burner” (thus keeping them from clogging the Immigration Courts) while working with the UNHCR and other counties in the Hemisphere (including, of course Mexico and Canada) on a more durable solution for those currently fleeing the Northern Triangle;
Otherwise, individuals who pass credible fear should be released on minimal bonds and allowed to go to locations where they will be represented by pro bono lawyers (thus avoiding the money wasted on “tent cities” and other types of expensive and arguably illegal detention) — contrary to the Trump Administration lies, almost all represented asylum applicants show up faithfully for their Immigration Court Hearings;
If the Administration wants to “prioritize” the cases of recent arrivals before the Immigration Courts, this can and should be done without creating more “Aimless Docket Reshuffling.” Not “rocket science.” Here’s how:
- Hundreds of thousands of those now unnecessarily clogging the Immigration Court dockets are long-time residents eligible to apply for “Cancellation of Removal for Non-Lawful Permanent Residents.” Take those with no serious criminal records off the Immigration Court docket and send them to USCIS Adjudications for initial processing. No rush, since only 4,000 “numbers” are available each year for grants;
- Those granted can be put in a line for green card numbers maintained by USCIS;
- Those denied who have committed serious crimes should be referred back to the Immigration Courts;
- For others who don’t qualify for cancellation of removal, the Administration should sponsor bipartisan legislation to provide legal status to such long-term residents. With Administration support, such legislation clearly could pass both Houses and be enacted into law.
The Immigration Courts could then return to real priorities: detained cases; cases of recently arrived individuals with or without asylum claims; cases of immigrants who have committed crimes; and cases of other individuals who don’t fit within our legal system, as properly administered.
Sure, this doesn’t match the “White Nationalist game plan.” But, it’s a practical, legal solution that would be good for immigration enforcement, the legal system, and the country as a whole. And, until the final step of legalization of long-term residents, it can be achieved under the current law.
And, I’ll bet you the overall cost would be much less than some of the “designed to fail” and perhaps illegal schemes now being pursued by the Administration. That’s particularly true because applications to USCIS and legalization programs actually “pay their own way” through application fees — perhaps even turning a slight profit for the Government.

PWS

11-03-18

PRISCILA ALVAREZ @ THE ATLANTIC: Sessions’s Influence Over Justice In The U.S. Immigration Courts Will Continue Long After His Departure!

https://www.theatlantic.com/politics/archive/2018/10/jeff-sessions-carrying-out-trumps-immigration-agenda/573151/

Priscilla writes in The Atlantic:

Dorothea Lay was on track to become a member of the Board of Immigration Appeals, part of the Justice Department’s Executive Office for Immigration Review. Her 25-year government career had prepared her for the post, as reflected in four letters of recommendation from academics and current and former officials. In December 2016, nine months after submitting her application, she was offered the job. But administrations changed, Jeff Sessions assumed the role of attorney general, and by early 2018, the offer was withdrawn.

Why?

That’s the question at the center of a complaint filed by Lay, an Idaho native, with the Office of Special Counsel, an independent federal investigative body. In a letter to Lay, 53, the Executive Office for Immigration Review said it rescinded her offer because “the needs of the agency have evolved,” even though the agency announced around the same time that it wanted to expand the size of the appeals board. The complaint suggests that political considerations may have been taken into account in reviewing Lay’s background, citing Lay’s letters of recommendation from people who “had liberal backgrounds or were perceived as having liberal backgrounds.”

The suspicion of politically based hiring has lingered among Democrats, who raised concerns in April and again in May. In the May letter, directed to Michael E. Horowitz, Democrats urged the inspector general of the Justice Department to investigate “allegations of politicized hiring practices,” citing cases in which offers for immigration judges and Board of Immigration Appeals positions had been delayed or withdrawn. (Lay’s attorney, Zachary Henige, is also representing two other people who claim their offers were withdrawn over political differences.) Assistant Attorney General Stephen Boyd responded to the Democrats’ allegations in a letter: “As stated in every immigration judge hiring announcement, the Department of Justice does not discriminate on the basis of political affiliation.”

The investigation into Lay’s complaint is ongoing, so it’s still not clear whether there were ulterior motives behind the withdrawal of her offer. But the case speaks to how DOJ can pick and choose who fills roles and in doing so, influence who’s at the helm of deciding immigration cases.

This isn’t unique to this administration. The Justice Department has considerable leeway when appointing immigration judges—the immigration courts are part of its direct purview. The attorney general therefore has unique authority to overrule decisions and hire immigration judges. To that end, Sessions appears to be shaping the court by, at the very least, hiring former law enforcement officials as immigration judges.

Read: The end of civil rights

“The more you bring people from the same background, the same set of experiences, the same perspective, the more you expose the court to criticism,” said Ashley Tabaddor, the president of the National Association of Immigration Judges. “Those decisions will be more open to being questioned.”

Of the 140 judges hired since Donald Trump’s inauguration, more than half have past prosecutorial experience or some other government experience. The pace of hiring has also stepped up: In fiscal year 2017, the Justice Department hired 64 immigration judges, compared to 81 in fiscal year 2018—bringing the total of immigration judges to 395, according to data released by EOIR. Sessions’s hiring spree is not unusual—and it’s also not unwarranted: His predecessors brought on new immigration judges, and the immigration court backlog also continues to creep up, with the latest figure at more than 760, 000 pending cases. Of the newly hired immigration judges, at least half had received conditional offers during the Obama administration, said Kathryn Mattingly, assistant press secretary at EOIR, in an email.

It’s not just how many immigration judges are being brought on but where they’re being located. EOIR has hired immigration judges for two adjudication centers—in Falls Church, Virginia, and Fort Worth, Texas—where cases from around the country will be heard through video teleconferencing. Judges will be located at the centers, while attorneys and respondents will be in separate locations. According to Rob Barnes, a regional public information officer for EOIR, immigration judges at these centers will be evaluated like others. It’s likely then that thousands of immigration cases will be heard with respondents never seeing a judge face to face.

Across the board, there appears to be a preference for people who come from an enforcement background, according to biographies of newly hired immigration judges posted by the Justice Department. Of the 23 judges announced in August, more than half previously worked with the Department of Homeland Security, and of those remaining, most came from a law enforcement background. In September, EOIR announced 46 new immigration judges, two of which will serve in a supervisory role: 19 previously worked for ICE, 10 had served at DOJ or as a former local prosecutor, and seven had a background in military (one of whom previously served in Guantánamo). It’s not yet known how these judges will rule once they’re on the bench and whether their enforcement background will inform their decisions. But experts, attorneys, and current and former immigration judges have warned about hiring too many people from government before.

“It’s not that we’re saying [those] with law enforcement or military background are unqualified,” Tabaddor, the head of the immigration judges association, told me. “A diverse bench is what brings fairness and legitimacy to court. It’s very important for a court to be reflective of the people it serves and the community at large to gain legitimacy and respect.”

Mattingly, the EOIR spokeswoman, has provided a series of specific qualifications that all candidates for immigration judge must possess.

Previous administrations also pulled from within government, reasoning that candidates have already passed background checks and can therefore be hired more quickly. But that can present some challenges. It’s possible that having spent years fighting in court on behalf of the government, an individual might be biased, said Jeremy McKinney, an immigration lawyer in North Carolina. The American Immigration Lawyers Association, of which McKinney is a part of, and National Association of Immigration Judges, have called for the pool of immigration judges to also include people from private firms and academia.

Read: Trump’s immigration crackdown is overwhelming a strained system

Their concerns were backed up by Booz Allen Hamilton, which conducted a year-long study of the immigration court system at EOIR’s direction. The April 2017 study found that at least 41 percent of immigration judges previously worked in the Department of Homeland Security, and nearly 20 percent worked at other branches within the Justice Department. The report recommended broadening “hiring pools and outreach programs to increase diversity of experience among [immigration judges].” It’s not clear whether the Justice Department took the study into account in putting together its hiring plan in April 2017, the same month the study was presumably handed over.

The hiring of immigration judges has always been a contentious issue: complaints have been lodged about there not being enough career diversity; it often takes months to hire judges (though the Justice Department recently pushed the time it took down from an average of 742 days to about 266 days); and political affiliations have previously been weighed in selecting judges. In 2008, the Inspector General issued a report on the hiring practices of DOJ in selecting attorneys, immigration judges, and members of the Board of Immigration Appeals. The report concluded that hiring based on political or ideological affiliation is in violation of department policy.

The fear, as expressed by some Democrats, legal experts and immigration advocates, is that Sessions is improperly seeking out conservatives in order to to influence the tilt of the nation’s immigration courts and hire a large cadre of immigration judges who will likely far outlast his tenure.

“I think he’s trying to get a complacent judiciary: ‘Forget the title, you guys are really DOJ employees, you’re out there to carry out my policies,’” said Paul W. Schmidt, former chairman of EOIR’s Board of Immigration Appeals from 1995 to 2001 and a former immigration judge.

Beyond who the Justice Department decides to bring on board, the message Sessions sends down to judges can also heavily influence their decisions, as direct reports to the department, Schmidt and others argue.

Read: The Democratic effort to keep Jeff Sessions in office

In September, for example, Sessions delivered remarks to a new class of immigration judges, the largest in history, according to the Justice Department, in which he pressed them to decide cases swiftly. “You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently,” he said. “As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload. I do not apologize for expecting you to perform, at a high level, efficiently and effectively.”

The message was striking given who it’s intended for. “If he was speaking to attorneys, that’d be normal. He has the right to set prosecutorial policy,” McKinney said. “That doesn’t translate to immigration judges.” Judges—even when they are DOJ employees—are expected to be independent. By effectively telling them how to handle cases and how quickly, the Justice Department is infringing upon that independence, McKinney said.

And Sessions’s words weren’t just an expression of what he hopes judges will do either. As of October 1, the expectation to “efficiently and effectively” adjudicate cases is being enforced. Earlier this year, the Justice Department took the unprecedented step of rolling out quotas for judges. To receive a “satisfactory” performance evaluation, judges are required to clear at least 700 cases a year. According to the Justice Department, judges complete 678 cases a year on average now, meaning they will have to pick up the pace to remain in good standing.

This fall, DOJ expects to bring on at least 75 more immigration judges. Even if Sessions days as attorney general are numbered, as Trump has suggested, his selections will decide the fate of immigrants, for years to come.

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

While immigration advocates might look forward to the day of Session’s departure from DOJ just as much as Donald Trump does, in the case of immigration the wonton damage and carnage he has inflicted on our justice system, particularly in the area of immigration, won’t easily be repaired. And, the repairs can’t even begin until after we get “regime change.”

PWS

10-16-18

BIASED COURTS: EL PASO’S “HANGING JUDGES” ARE DEATH TO ASYLUM CLAIMS, EVEN THOSE THAT ARE BEING GRANTED IN MANY OTHER IMMIGRATION COURTS – The Due Process Problems In The U.S. Immigration Courts Go Much Deeper Than Jeff Sessions’s Outrageous White Nationalist Policies! — Author Justine van der Leun Presents A Meticulously Researched, Moving Report Of Unfairness That “Scotches” All Of The DOJ/EOIR “Bogus Excuses” & Exposes The Deep, Unacceptable Bias That Makes Our Immigration Courts A National Disgrace!

https://www.vqronline.org/reporting-articles/2018/10/culture-no

Here’s an excerpt from Justine van der Luen’s much longer article “A Culture of No,” published in the Fall 2018 issue of VQR (quoting me, among many others).

. . . .

“Here in the US, there is democracy, but we still have fear,” he said. “I got asylum but if they want to make a problem, they can do it.” He was terrified that the smallest misstep, no matter how apparently meaningless, how accidental or random, could signal the difference between freedom and imprisonment—and from there, between life and death.

To beat the extreme odds in El Paso, Isaac had spent fifteen months in detention and paid thousands of dollars in legal fees to an elite lawyer who then worked dozens of pro bono hours on his appeal. This feat required an enormous amount of translated and notarized evidence discretely sent overseas by family members in Syria, the emotional and financial support of his brother and his lawyer, and the wherewithal to withstand a complex, taxing, humiliating process. How many asylum seekers could or should have to endure such an ordeal in order to gain internationally recognized rights meant to protect the persecuted?

As Isaac started over in America, other asylum seekers I had been tracking were less fortunate. Jesus Rodriguez Mendoza, the Venezuelan, had been transferred to a notorious detention center in Miami, which his legal team believed was punishment for his public protests; he remained on the El Paso docket, but now was physically separated from his lawyers, his fourth parole request denied. Berta Arias, the Honduran grandmother whose relief Judge Abbott had granted and then quickly rescinded, lost her appeal and was deported without the granddaughter she had raised. The Central American man whose brother, with an identical case, had won protection in New York City, remained in the Camp. It wasn’t only those from the Americas who were out of luck. Cambodians, Cameroonians, Guineans, and Kenyans I’d followed all had their claims denied; they had since been deported or were waiting on appeals.

One young Central American woman who had been repeatedly raped had managed to win relief, but only after her lawyer, unable to bear the thought of her client being sent home to be violated yet again, paid over $2,000 from her own pocket to fly two expert witnesses into Texas to clinch the case.

“I think in El Paso, they want to see that people died,” a young Salvadoran asylum seeker told me. He was an Evangelical Christian, who preached to local kids. Members of MS-13 had shot at him with a machine gun, killing a pedestrian who happened to be standing nearby, and kidnapped and murdered his fifteen-year-old friend who had joined him in proselytizing. The young man, his mother, and his brother made their way to the US. Despite having a devoted pro bono lawyer, he lost his asylum case, as well as his appeal, on the grounds of credibility (the judge believed he was simply an economic migrant who had invented the threats); his mother also struggled to find legal relief in El Paso.

“Maybe if I died, and then my mom asked for asylum, maybe then she can get protection,” he told me calmly. “They tried to kill me, but I didn’t die, so it’s not good enough for them.”

Justine van der Leun

Justine van der Leun is the author of several books, including We Are Not Such Things (Random House, 2016), a New York Times Editors’ Choice and Spectator Book of the Year. Her work has appeared in theNew York Times, Harper’s, the Guardian, and Oprah Magazine. She is an International Women’s Media Foundation reporting fellow and a grantee of the Investigative Fund at the Nation Institute.

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

I encourage you to read the full article at the above link, which is accompanied by some great original illustrations by Alan Vest!

Justine highlights the real role of attorneys in our asylum system. Many of them are working on a pro bono or low fee basis or actually paying out of their own pockets! They persist under horrible working conditions and often rude, insensitive, and unprofessional treatment from judges and other government officials that would persuade most other professionals to take up another line of work. The cases are complicated and (unnecessarily) fact intensive, often requiring not only extensive research and legal knowledge, but also skilled use of expert testimony and sources translated from foreign languages.

In courts like El Paso, getting a fair result in an asylum case too often depends on making the record below and then taking an appeal — the latter itself a time-consuming “hit or miss” proposition depending on the BIA “panel” (it could be a single judge) or the Circuit in which the case arose (sadly, the 5th Circuit is notorious for taking a cavalier and tone-deaf attitude toward the law and fundamental fairness in immigration matters).

Indeed, conscientious, dedicated attorneys are far more interested in making the system function in a fair and efficient manner consistent with our Constitution than the DOJ politicos who run today’s broken court system.

Compare the reality with the intentionally false and totally disingenuous picture painted by our White Nationalist Attorney General Jeff Sessions. He refers to “dirty lawyers” who are “gaming” the system.

Apparently, Sessions’s view of “gaming” means providing vigorous and effective representation and forcing him and some of the anti-asylum judges working for him to comply with asylum law!

It’s also painfully clear that no unrepresented asylum applicant would have any chance whatsoever of receiving fairness and Due Process in El Paso.

But, instead of working with the private bar to facilitate representation and repair the damage to the Immigration Courts, Sessions has gone to great lengths to prevent effective representation of asylum seekers. He has arranged for the detention of asylum seekers in horrible conditions in obscure places where there are no lawyers; he has “speeded up” the system to make it more difficult for lawyers to effectively represent their clients; he has used unconstitutional intentional family separation to duress individuals with valid claims into abandoning them; he has made pejorative remarks about asylum seekers and their lawyers in front of Immigration Judges; and he has manipulated the substantive law against bona fide asylum seekers.

Yes, many, many Immigration Judges “buck the odds” to honor their oaths of office and guarantee fairness and Due Process for asylum seekers and other respondents. Justine points out how results differ dramatically in Immigration Courts where judges apply the law and treat respondents and their lawyers in a fair and impartial manner.

So, how can I be such a strong advocate for independence of a system that I know is badly flawed? Those of us who have actually worked in the system know that it can’t be fixed overnight.

But, getting the system out of the hands of Sessions and the DOJ politicos is an absolutely essential first step. With the advent of a true merit judicial hiring system, such as that recommended by Professor Andy Schoenholtz and others, and the establishment of a more diverse and representative Appellate Division that acts like an independent Federal Court to rein in those judges who are unfairly treating asylum applicants and force them to correctly and fairly apply the law, there will be a return of meaningful judicial dialogue and deliberation which leads to progress over time.

Notably, in Isaac’s case, the system actually worked! After many months of expensive, wasteful, and unnecessary detention and an incorrect decision below, the BIA summarily corrected the Immigration Judge’s clearly erroneous denial of Isaac’s asylum case. But corrective action by the BIA to bring anti-asylum judicial “outliers” under control is exactly what Sessions has disabled in his decision in Matter of A-B-. He basically encourages “worst practices” and enables biased Immigration Judges while criticizing the BIA’s modest attempts to bring legality and order to an out of control system. What an outrageous perversion of justice and Due Process by someone who constantly makes bogus claims to be “enforcing the rule of law!”

Additionally, by returning control over dockets and court administration to sitting judges, rather than non-judicial DOJ politicos and their agency subordinates, an independent Immigration Court can make progress toward reducing backlogs while promoting, rather than “demoting,” Due Process.

The current Immigration Court System is a farce that should outrage and disgust every fair-minded American! It will continue to malfunction and deny Due Process until we have an independent Immigration Court where all judges are required to respect the Constitution and the individual rights of those coming before them.

Join the “New Due Process Army” and force the Immigration Courts and the Article IIIs to live up to their unfilled promise of “guaranteeing fairness and Due Process for all!”

PWS

10-09-18

JUDICIAL CATASTROPHE: By Any Sane Standard, The U.S. Immigration Court In Baltimore Is A Total Administrative Disaster – But, That Hasn’t Stopped White Nationalist AG Jeff Sessions From Demanding That The Already Overworked & Demoralized Judges Forget About Fundamental Fairness & “Just Pedal Faster!” — “All this is going to be litigated at taxpayers’ expense, but it’s all in the effort to fulfill a political promise,” Says Retired Judge John Gossart, Jr.!

https://news.vice.com/en_us/article/xw94ea/leaked-report-shows-the-utter-dysfunction-of-baltimores-immigration-court

Ani Ucar reports for Vice News in an article featuring quotes from “Our Gang” members retired U.S. Immigration Judges Jeffrey Chase and John Gossart, as well as current (soon to be retired, perhaps?) Judge Denise Slavin:

By Ani Ucar Oct 3, 2018

Overwhelmed immigration courts are a national problem, and the growing backlog means an average immigration case is waiting in court for a record 717 days, as of 2018, according to Syracuse University.

But Maryland, with its more than 34,000 pending cases, has the fastest-growing backlog, largely because its sole immigration court, the Baltimore Immigration Court, is one of the most beleaguered and understaffed in the country, according to a confidential Department of Justice review obtained by VICE News.

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VICE News first obtained a heavily redacted version of the report through a records request but later obtained an uncensored version of the review, which paints a portrait of dysfunction at one of the busiest immigration courts in the country.

Completed in 2018 and covering the years 2014 to 2017, the review shows a department so understaffed that basic functions such as address changes or orders to appear in court were not processed or sent out as caseloads piled up. Failing to process key documents could deny migrants the opportunity to be heard in court. “Poor management of this core process leads to additional work for the Court and can result in respondents being ordered removed in absentia through no fault of their own,” the report says.

Read: Being a kid is a “negative factor” under Trump’s new immigration rule

As the court’s caseload mounted, the number of sitting judges stayed the same, fluctuating between four and five. As a point of reference, Chicago’s immigration court, which has a comparable caseload, has twice the number of sitting judges.

NO HABLA ESPAÑOL

The court’s office had no Spanish speakers on staff, even though 84 percent of its cases involved a respondent who only spoke Spanish. The equipment in the office was dated and often nonfunctional. “The two existing HP copiers in the Baltimore Court have had numerous issues and there have been literally days when the Court is unable to use either copier,” the report said.

A lack of administrative staff meant boxes with thousands of documents were left sitting on the floor or on top of file cabinets, and the report describes “hallway space filled with files, file carts, printers and the like.”

One judge currently on the court told VICE News that as cases and administrative work piles up, the court may not be able to provide due process.

“I’m happy to be retirement-eligible, and quite frankly a lot of us are,” said Baltimore Immigration Judge Denise N. Slavin, who spoke to VICE News in her capacity as president emeritus of the National Association of Immigration Judges. “I feel like if I get pushed to a point to violate due process, or I’m being disciplined for not doing something that I thought would violate due process, I would be able to leave.”

Read: This toddler got sick in ICE detention. Two months later she was dead

As bad as it’s been in the Baltimore Immigration Court, it’s about to get worse. On Monday, a new policy backed by Attorney General Jeff Sessions went into effect mandating that the nation’s roughly 330 immigration judges process at least 700 cases per year. The Department of Justice has said it will hire 100new immigration judges this calendar year to help with the backlog, but current and former immigration judges say more judges without commensurate support staff will only add to the problem.

The confidential report on the Baltimore Immigration Office was performed by a court administrator at the request of the Office of the Chief Immigration Judge, a branch of the DOJ. Unlike state or federal courts, immigration courts are part of the Department of Justice, and therefore part of the executive branch of government.

SURGING CASES

The review took place in November and December of last year, and focused on the time period from 2014-2017, when the Baltimore Immigration Court caseload nearly quadrupled.

Though the caseload was rising during that period, the court was shedding staff: They lost seven full-time permanent employees. “The shortage of staff in the Baltimore Court was so severe the Court did not have enough employees to manage the Court’s core processes,” the report says.

The report coincides with a 2014 surge of crossings at the U.S.-Mexico border. Baltimore’s caseload began to grow rapidly afterward. Despite having completed 33.11 percent more cases from 2015 to 2016 combined, the court’s efforts were not enough to keep pace with the mounting backlog. At the end of 2014, the court had 8,331 pending cases, and by December 2017 the pending caseload jumped to 29,184, according to the Transactional Records Access Clearinghouse database, or TRAC, at Syracuse University.

“It feels like you are being buried alive”

Backlogs in the immigration courts have historically been impacted by shifting migration patterns, immigration policy changes, and hiring freezes on judges and staff. But since President Trump took office in 2017, the number of pending cases in immigration courts has increased 41 percent, bringing the total to 764,561 as of August 31, 2018, according to TRAC.

“It feels like you are being buried alive,” said Los Angeles Immigration Judge Ashley Tabaddor, speaking as president of the National Association of Immigration Judges. “It’s like this tsunami of cases that just never goes away, and instead of [us] being helped, the department is just adding more pressure.”

QUOTA SYSTEM

Sessions has said the quota system will help cut down the record-high backlog, but immigration judges, both current and retired, have pushed back, saying the standard would threaten due process and judicial independence.

“There’s an overabundance of attention on efficiency and there seems to be little to no concern from higher-ups on getting the decisions right,” said retired New York City Immigration Judge Jeffrey S. Chase.

Read: Jeff Sessions wants to remove immigration judges who aren’t deporting people fast enough

Baltimore’s immigration court is relatively small, but it has been operating with a caseload similar to that of a large immigration court. While more populous states have a number of immigration courts—there are seven courts in California, for instance, and six in New York—the Baltimore facility is the only one in Maryland.

The report describes at length how staff failed to maintain order as paperwork grew. “As of early December 2017, there were approximately 700-1,000 additional filings sitting in the Court that are made up of EOIR-28s, EOIR-33s, returned notices, general correspondence and motions that have not been processed,” the report says. (An EOIR-28 is a notice of appearance in court. An EOIR-33 is a change-of-address form.)

“How the Baltimore court manages motions still needs improvement. Poor management of this core responsibility leads to additional work for the Court, and it sends the message to the private bar and to DHS that the Court is not organized and cannot be relied on,” the report said.

The Department of Justice declined to comment on the report.

At the time of the review, the Baltimore court had 24,142 pending cases in which the respondent spoke Spanish but no Spanish-speakers on staff. At one point, the staff resorted to pulling two judges off the bench to help the front desk with translation needs, said one EOIR employee.

Other times they had to enlist the help of someone in the waiting room to interpret for people. “Sometimes they were not getting the best information or even accurate information about their case,” said the EOIR employee.

“Recruitment of a Spanish Interpreter should be a priority,” the report says, but that position has yet to be filled.

All these issues are expected to worsen with the rollout of the quota system. “We’ll have preliminary success with getting a large number of cases out and temporarily reduce the backlog, but ultimately a large number of those cases will come back on appeal, thus making the backlog even worse,” Slavin said.

At the end of the day, the taxpayer will be on the hook for the cost of the immigration policy, said retired Baltimore immigration judge F. Gossart Jr. “All this is going to be litigated at taxpayers’ expense, but it’s all in the effort to fulfill a political promise.”

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

Wow! An Attorney General who consistently shows bias and maliciousness combined with incompetence. What a horrible combination! And throw into the mix a complete abdication of oversight functions by the GOP-controlled Congress.

Sessions is pouring taxpayer money down the drain in an effort to actually make the system more dysfunctional and less fair. It’s the type of fraudulent, wasteful, and abusive conduct that in normal times might result in criminal prosecutions and jail sentences. We also know that he is promoting similar dysfunction in the criminal justice system with his inane and ineffective “zero tolerance” policy that has also made him the nation’s most notorious un-prosecuted child abuser. Yet, Sessions walks free, while the victims of his misconduct, many vulnerable children and women merely seeking the justice to which they are entitled, rot in his “New American Gulag” and/or suffer grossly substandard “justice” in a totally out of control charade of a “court system” where Due Process is mocked every day.

When the only thing that keeps you going is the knowledge that you can retire any day, you know that your job is really screwed up! (Hint to the un-retired but eligible: The very best time to retire is before you get to the foregoing point.)

If this isn’t your vision of America, then take Willie Nelson’s advice and “Vote ‘Em Out.”

PWS

10-04-18

“A new and dark era as Immigration Judges,” Says Judge A. Ashley Tabaddor, NAIJ President!

Dear Colleagues,

October 1^st marked a new and dark era as Immigration Judges. The Agency is now subjecting us to quotas and deadlines as part of our individual performance evaluations, something that is inherently in conflict with our oath of office(which is the very reason why Congress explicitly excluded ANY individual performance measures for Administrative Law Judges). NAIJ has largely concluded the bargaining with the Agency on “impact and implementation” of these quotas and deadlines and continues to express (to the Agency and the public) our strenuous disagreement with the concept of quotas and deadlines as a matter of principle. However, to the extent that we remain a part of the Department of Justice and are treated as DOJ attorneys (in spite of being judges in our duties and responsibilities), our legal recourse of action is confined to labor laws, which are designed for traditional labor/management relationships and do not deal with issues of judicial independence. Thus, unless and until the Agency takes an adverse action against a particular judge (or Congress steps in with the durable solution of removing the Immigration Court from the Justice Department), we cannot file any grievance or complaints (including the suggestion of several of our judges to file for intentional infliction of emotional distress, which appears to be prohibited by the Federal Torts Claims Act). Thus, we have spent many hours in the past months in bargaining and informal discussions to minimize the impact of this ill-conceived program. We have been able to help craft more favorable interpretations of what will satisfy the metrics, improved the content and design of the Dashboard to make it more user friendly, and been able to point out shortcomings and flaws which we still seek to improve or eliminate. The MOU you will see shortly has been negotiated as an adjunct to Article 22 of the Collective Bargaining Agreement which provides protections for judges in the performance evaluation process. We entered into the MOU in the hopes of improving the position of judges by clarifying that the quotas and deadlines do not stand alone, but must be read in conjunction with specific consideration of each judge’s docket and consistent with Article 22.3.h. We expect the MOU will help provide judges with a measure of protection and help reconcile the quotas and deadlines with the individual demands of our individual dockets and courts. Additionally, the MOU provides for a continuing forum for the NAIJ to raise concerns with the Agency about the operation of the Dashboard or application of performance measures, both on a general level and on behalf of any individual judge. So your continued feedback to NAIJ is a critical part of this process.

Meanwhile I cannot emphasize enough that your oath of office should be your guiding principle throughout these challenging times. As I have said many times before, so long as you put in an honest day’s work and stay true to your oath of office, we will stand by you 100% of the time. “Due process” is the beginning and the end of the conversation. Period. Full Stop.

Thank you for those of you who have been sharing with us your experiences with the Dashboard and your ACIJs regarding the CBA Article 22.3.h. Please keep them coming as we want to make sure that any problematic patterns or practices of the Agency are noted and resolved early.

We also understand that many of you are seeking guidance on how to best navigate this new system. We do have some suggestions for you which we plan to share in our upcoming Q&A sessions on the implementation of the Quotas and Deadlines. I have included a couple of attachments that may also be of help to you in identifying the data entry error or track the 22.3.h factors that your ACIJs should be considering. So please mark your calendars, and plan on joining us for at least one of the sessions.

Wednesday, October 10^th 8:00 a.m. PT, 9:00 a.m. MT, 10:00 a.m. CT, 11:00 a.m. ET

Wednesday, October 10^th 9:00 a.m. PT, 10:00 a.m. MT, 11:00 a.m. CT, 12:00 p.m. ET

Wednesday, October 10^th, 10:00 a.m. PT, 11:00 a.m. MT, noon CT, 1:00 p.m. ET

Thursday, October 11^th, 11:00 a.m. PT, noon MT, 1:00 p.m. CT, 2:00 p.m. ET

Thursday, October 11^th, noon PT, 1:00 p.m. MT, 2:00 p.m. CT, 3:00 p.m. ET

The call-in information for each of the scheduled sessions is as follows: (605) 475-4001 & passcode: 765103#

If you have any questions in advance that you would like for us to address during a meeting, feel free to forward it to my attention.

Thank you for all of your hard work.

Ashley

The Honorable A. Ashley Tabaddor, President

National Association of Immigration Judges

606 S. Olive St., 15^th floor

www.naij-usa.org

213-534-4491 (direct office line)

BEST E-MAIL: ashleytabaddor@gmail.com

DISCLAIMER: The author is the President of the National Association of Immigration Judges. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

P.S. Please let your fellow NAIJ members know about these call-in session. Should you hear of any NAIJ member who may not have received this email, please let me knowasap and feel free to forward to them as well. Thank you.

From: Ortiz-Ang, Susana (EOIR)
Sent: Monday, October 01, 2018 3:07 PM
To: All of Judges (EOIR) <All_of_Judges@EOIR.USDOJ.GOV>
Cc: Keller, Mary Beth (EOIR) <MaryBeth.Keller@EOIR.USDOJ.GOV>; Wilson, Donna L. (EOIR) <Donna.Wilson@EOIR.USDOJ.GOV>
Subject: New Performance Measures (On Behalf of Mary Beth Keller, Chief Immigration Judge)

Judges,

Please see the below and attached.

Today, the new performance measures, as incorporated in Element 3 of your Performance Work Plan, become effective. The new Element 3 is attached to this e-mail and will be appended to each of your PWPs. The implementation of these new performance measures is part of a larger effort to make changes across the Agency to better enable us to meet our mission, to fairly and expeditiously adjudicate immigration cases. You are and always have been a dedicated and professional corps, with the competence and integrity to render decisions that are both “timely and impartial,” as required by the regulations. Historically, IJs have been held accountable in performance Element 3 to make timely rulings and decisions as well as to manage calendars efficiently. These measures simply define these goals more specifically in the present day.

I wanted to emphasize a few important points that you also may have heard from your ACIJ during your court meetings:

-Decisions should not be made on individual matters based solely on the performance measures. We remain committed to ensuring due process in each case.

– I hope that each of you has taken an opportunity to review the IJ Performance Data Dashboard (“Dashboard”), which is linked to the OCIJ intranet page under “Quick Links.” Please keep in mind that the Dashboard is not your performance rating. It displays data from CASE as it relates to your progress towards meeting the established goals and benchmarks in Element 3 of the PWP. The new measures apply to your performance for the second year of this cycle, from Oct. 1, 2018 to September 30, 2019. Your overall performance rating will be determined at the end of the two-year rating cycle (ending September 30, 2019), considering your performance in all three elements of the PWP.

– The Dashboard is one day behind. Therefore today it shows data as of September 30, 2018. Tomorrow, it will “zero out,” and show data as of October 1. As of tomorrow, only actions you take from October 1 forward should appear on the Dashboard.

– In addition to the Definitions document that I circulated on September 10 (and attached again here), with the input of NAIJ, we have developed a Frequently Asked Questions (“FAQ”) document, which I have attached here as well. We continue to tweak the data captured in the Dashboard to ensure that it accurately reflects the Definitions document and the FAQ document. We encourage you to bring data issues to the attention of your ACIJ.

– Please carefully review not only the new PWP Element 3, but also Article 22 of the Collective Bargaining Agreement between the Agency and NAIJ. In particular, in Article 22.3.h., the Agency has agreed to take into account a number of factors that may affect an IJ’s ability to meet the performance standards, including factors not in control of the IJ.

– We have concluded our discussions with NAIJ, and in the near future, we will publish on the intranet the Memorandum of Understanding that both parties agreed to at the conclusion of bargaining. Please review this document carefully when it becomes available.

– We welcome your input throughout the year. We want to hear about the circumstances you feel are hindering your efforts to reach the goals and benchmarks. We also want to hear your suggestions for making the courts and our processes more efficient, and more generally how the courts can better meet our mission.

– If there is something systemic or frequently recurring that you believe is interfering with your ability to meet the measures, please raise your concern with your ACIJ.

– Please be patient, especially during the rollout and at the end of the first quarter, when numbers are likely to be low due to holidays and leave.

Thank you.

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

So, Chief Immigration Judge Marybeth Keller says decisions shouldn’t be made based “solely on the performance measures.” In other words, performance measures can be a basis for decisions so long as the IJ doesn’t identify them as the “sole” basis.

There would be no need for “performance measures” at all unless those imposing them intended that they influence or control results. What kind of “performance measure” isn’t geared at influencing or shaping the “end product” of the “performance.” Or, perhaps the theory of DOJ/EOIR management is that IJs as a group are a bunch of lazy work shirkers who won’t put in a full day’s effort unless watched and threatened at all times with sophomoric “big brother type performance dashboards.”

Maybe that is the purpose of the “IJ Performance Data Dashboard.” This “Dashboard” is a remarkable achievement for an agency that still hasn’t been able to roll out a finalized version of an e-filing system. Clearly it’s a matter of “priorities;” fair adjudication and service to the public obviously aren’t among them!

The purpose of the Dashboard is appparently to insure that the stress levels build and that “judges” remain focused on achieving their “performance goals” (and hence keeping their jobs) rather than on the merits or justice in a particular case. Indeed, in a “real” court system judges would be encouraged to focus solely on providing fair and impartial adjudications in accordance with Due Process and the technology would be devoted exclusively to that end. “Production data,” while perhaps interesting from an intellectual or self-evaluation standpoint, actually has little or nothing to do with justice in a particular case.

Everyone who loses a case in this amazingly depressing “kangaroo court” system should file a petition for review citing the inherent Due Process flaw in having a “judge” who can’t possibly function as an “impartial” adjudicator as required both by the Constitution and by DOJ regulations. Maybe at some point the Article IIIs will fully understand the judicial farce in which they are complicit and act accordingly.

PWS

10-03-18

JOIN AILA AND OTHER ORGANIZATIONS IN MAKING OCT. 1, 2018 A “DAY OF PROTEST” AGAINST THE WHITE NATIONALIST, ANTI-DUE-PROCESS POLICIES OF JEFF SESSIONS WHICH HAVE DESTROYED JUSTICE IN THE US IMMIGRATION COURT SYSTEM!

https://www.aila.org/dueprocess

AILA Calls for Independent Immigration Courts

AILA Doc. No. 18092834 | Dated September 29, 2018 | File Size: 759 K

DOWNLOAD THE DOCUMENT

Beginning today – October 1, 2018 – Attorney General Sessions is requiring all immigration judges to meet performance-based case completion quotas, which means the judges are forced to complete a certain number of cases or face discipline. This astounding move has been called “death knell for judicial independence” by the National Association of Immigration Judges, and means judges will compelled to rush through these often life-or-death cases.

The imposition of quotas is just the latest in a series of policy changes implemented in the past year that undermine judicial independence, threaten due process, and prevent people from getting a fair day in court. Because immigration courts are housed under the Department of Justice, the very same law enforcement agency that is charged with prosecuting immigration cases in federal courts, the Attorney General has authority over both the prosecutors and judges in immigration cases. Attorney General Sessions has wielded this considerable power to not only impose quotas, but also pluck no less than six cases from the judges to decide himself, to reassign judges away from particular cases, and to implement policies that emphasize quantity over quality.

In the face of this unprecedented attack on our judiciary, more than 1,000 AILA members are submitting a letter to Attorney General Sessions asking that he support the creation of an independent, Article I court system that can ensure due process and fundamental fairness. Justice demands nothing less.

AILA Policy Brief

Resources Coming Soon

AILA Press Statement

Letter from over 1,000 AILA members calling for independent immigration courts

Talking Points

Sample Letter to the Editor

Tweetstorm

AILA will be hosting a Tweetstorm on Monday, October 1, 2018, from 1:00 – 3:00 pm (ET) to speak out against the implementation of the quotas on immigration judges.

Participate in AILA’s #ProtectDueProcess & #JudicialIndependence Tweetstorm Monday, October 1, 2018, from 1:00 – 3:00pm (ET) by:

Using the sample tweets below and accompanying graphics.

Creating your own tweets using the hashtags #ProtectDueProcess or #JudicialIndependence; or

Retweeting @AILANational, @AILAExecDir, or @GregChenAILA

SAMPLE TWEETS – DO NOT USE UNTIL MONDAY TWEETSTORM

The only benchmark for #immigration judges should be to #ProtectDueProcess. Imposing case competition quotas does just the opposite. Read @AILANational’s policy brief: http://ow.ly/zQD230lZ5uD

A judge’s decision can carry life-or-death consequences. This is why we must #ProtectDueProcess in our immigration court system. Read @HispanicCaucus’ letter to #DOJ: http://ow.ly/5VEH30lZ5xG

More than 120 #immigration law scholars and professors denounced #DOJ’s plan to impose case completion quotas to measure #immigration judges’ performance out of concern that it would undermine #JudicialIndependence in immigration courts. http://ow.ly/lKt130m0mwR

For months, Attorney General Jeff Sessions has been interfering with #JudicialIndependence and undermining #DueProcess in #immigration courts. @MotherJones explains: http://ow.ly/NSf130lZ7La

With the case completion quotas in effect, #immigration judges will need to finish cases quickly to receive satisfactory performance reviews, forcing them to choose between job security or justice. #ProtectDueProcess http://ow.ly/NSf130lZ7La via @MotherJones

Judge Ashley Tabaddor, President of the National Association of #Immigration Judges, explains why NAIJ is speaking out against recent policy changes that undermine #JudicialIndependence: “We are essentially then prosecutors in a judge’s robe.” https://lat.ms/2xGkWUm

AG Sessions went ahead and imposed case completion quotas without input from the very people they will affect: #immigration judges! That is no way to uphold #JudicialIndependence and integrity. Read more: http://ow.ly/VbSj30lZgwf
Members of the law community, including the National Association of Immigration Judges, are advocating for an #immigration court system that is independent of #DOJ, as AG Sessions undermines #JudicialIndependence. http://ow.ly/eFhQ30lZ9l9

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STAND UP FOR DUE PROCESS — STOP JEFF SESSIONS & HIS WHITE NATIONALIST RESTRICTIONIST AGENDA!

PWS

10-01-18

GONZO’S WORLD: HE FIDDLES AS ROME BURNS! — Threats To Judges, Xenophobia, Racism, Cutting Corners, Dissing Respondents & Their Lawyers, Bogus Numbers, Aimlessly Adding Bodies Fail To Stem Tide Of Backlogged Cases In An Obviously Broken System — When Will Congress &/Or The Article IIIs Do Their Jobs By Restoring Due Process, Impartiality, & Competent, Apolitical Court Management To This Sorry Caricature Of A Court System?

Here’s the latest from TRAC:

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

Greetings. In August 2018, Immigration Courts remained overwhelmed with record numbers of cases awaiting decision. As of August 31, 2018, the number had reached 764,561. In July, the number of cases awaiting decision was 746,049 cases. This is a significant increase – up 41 percent – compared to the 542,411 cases pending at the end of January 2017, when President Trump took office.

California, Texas, and New York have the largest backlogs in the nation at 142,260, 112,733, and 103,054 pending caseloads respectively. While California is the state with the most pending cases, New York City’s immigration court topped the list of immigration courts with highest number at 99,919 pending cases at the end of August.

To view further details see TRAC’s immigration court backlog tool:

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

In addition to these most recent overall figures, TRAC continues to offer free monthly reports on selected government agencies such as the FBI, ATF, DHS and the IRS. TRAC’s reports also monitor program categories such as official corruption, drugs, weapons, white collar crime and terrorism. For the latest information on prosecutions and convictions through July 2018, go to:

http://trac.syr.edu/tracreports/bulletins/

Even more detailed criminal enforcement information for the period from FY 1986 through August 2018 is available to TRACFed subscribers via the Express and Going Deeper tools. Go to http://tracfed.syr.edu for more information. Customized reports for a specific agency, district, program, lead charge or judge are available via the TRAC Data Interpreter, either as part of a TRACFed subscription or on a per-report basis. Go to http://trac.syr.edu/interpreter to start.

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

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

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

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US 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

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

At approximately 20,000 more backlogged cases per month, the “Gonzo-ized” version of the US Immigration Courts are on track to jack the backlog up to 1 million by the end of FY 2019! Talk about self-inflicted, totally unnecessary chaos!

Hiring more new Immigration Judges won’t solve the problem because 1) if they do the job right, they will be slow and deliberative, 2) if they are slow, they will be fired, 3) but if they do it “Gonzo’s way” and give Due Process a pass, many of their cases will be sent back by the Courts of Appeals, adding to the mess.

Gonzo’s recent “My Way or the Highway” speech to new IJs where he unethically urged them to violate their oaths of office by ignoring relevant humanitarian factors in asylum cases (which actually are supposed to be humanitarian adjudications) and just crank out more removal orders to carry out the Administration’s White Nationalist agenda is a prime example of why more judicial bodies can’t solve the problem without a complete overhaul of the system to refocus it on Due Process — and only Due Process.

Someday, the Immigration Courts will become independent of the DOJ. That should include a professionally-administered, transparent, merit-based, judicial selection and retention system with provision for meaningful public input. (Such systems now are used for selection and retention of US Bankruptcy Judges and US Magistrate Judges.) When that happens, those Immigration Judges who “went along to get along” with Gonzo’s xenophobic, anti-immigrant, ignore Due Process system might be challenged to explain why they are best qualified to be retained in a new system that requires fair, impartial, and scholarly judges.

This court system can be fixed, but not by the likes of Gonzo Apocalypto; also, not without giving the Immigration Judges back authority over their dockets and leverage to rein in a totally undisciplined, irresponsible, unprofessional, and out of control ICE. (Responsible, professional, practical, humane leadership at DHS and ICE is also a key ingredient for a well-functioning and efficient court system.)

PWS

09-27-18

LA TO GET MORE US IMMIGRATION JUDGES: But, Head Of Judges’ Association Says Throwing Bodies At Broken, Politicized, Demoralized Court System Won’t Solve The Due Process Crisis!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=8c9f4727-d315-41f8-bab7-12cef47a2f5d

Andrea Castillo reports for the LA Times:

Amid huge backlog, L.A. will get more immigration judges

Head of national jurist group says they’re ‘being used … as a political tool.’

By Andrea Castillo

Los Angeles has the nation’s second-largest immigration court backlog, with 29 judges handling 72,000 pending cases.

That’s including four judges who started within the last few months. An additional 10 were expected to be sworn in this week, according to Judge Ashley Tabaddor, who leads the National Assn. of Immigration Judges.

But she says that won’t fix the problem.

“We’re just transparently being used as an extension of the executive branch’s law-enforcement policies, and as a political tool,” she said.

U.S. Atty. Gen. Jeff Sessions welcomed 44 new judges earlier this month, addressing them at a kickoff for their training with the Executive Office for Immigration Review. He said the administration’s goal is to double the number of judges active when President Trump took office.

“As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload,” Sessions told them. “I do not apologize for expecting you to perform, at a high level, efficiently and effectively.”

There are 351 judges in about 60 courts around the country — up from 273 judges in 2016. These judges manage a backlog of nearly 750,000 cases,a figure that has grown from a low of less than 125,000 in 1999. Last year, Sessions introduced a “streamlined hiring plan” that cut the hiring timefor immigration judge candidates by more than half.

The EOIR has the funding for 484 judges by the end of the year, spokeswoman Kathryn Mattingly said.

Tabaddor said the impending quotas and production deadlines, which take effect next month, have caused severe anxiety among judges. Justice Department directives that were announced in April outlined a quota system tied to performance evaluations under which judges will be expected to complete 700 cases a year to receive a “satisfactory” rating.

Hiring more judges won’t be enough to alleviate the pressure they’re all under, Tabaddor said.

“It’s pitting the judges’ livelihood against their oath of office, which is to be impartial decision-makers,” she said, calling it an “assembly-line formula.”

Tabaddor said there also isn’t enough space for new judges, so some might not start right away. She described the downtown L.A. offices as cramped, with law clerks sharing offices or cubicles. And she said additional support staff members have yet to be hired.

andrea.castillo@latimes.com

Twitter: @andreamcastillo

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Yup! As long as the Immigration Courts are under DOJ, and particularly under the rule of “Gonzo Apocalypto,” it will be an exercise in “throwing good money after bad.” As I’ve said before (perhaps in the LA Times?), what Sessions is doing is like “taking an assembly line that is producing defective cars and making it run faster so that it will produce even more defective cars.” More or less the definition of insanity, or at least “fraud, waste, and abuse” of Government resources. But, accountability went out the window as soon as Trump took over and the GOP controlled both the Executive and Congress.

For a glimpse of what Immigration Court will look like under the new “Gonzo Quotas,” check out this great video:

https://www.youtube.com/watch?v=HnbNcQlzV-4

We need regime change!

PWS

09-26-18

DUE PROCESS MOCKED, COURT SYSTEM IN CHAOS! — NAIJ President A. Ashley Tabaddor Speaks Out Against Sessions’s Bias & Politicization Of U.S. Immigration Courts!

https://www.voanews.com/a/immigration-judges-say-new-quotas-undermine-independence/4582640.html

From VOA News:

Immigration Judges Say New Quotas Undermine Independence

WASHINGTON —

The nation’s immigration court judges are anxious and stressed by a quota system implemented by Attorney General Jeff Sessions that pushes them to close 700 cases per year as a way to get rid of an immense backlog, the head of the judges’ union said Friday.

It means judges would have an average of about 2½ hours to complete cases — an impossible ask for complicated asylum matters that can include hundreds of pages of documents and hours of testimony, Judge Ashley Tabaddor said.

“This is an unprecedented act, which compromises the integrity of the court and undermines the decisional independence of immigration judges,” she said in a speech at the National Press Club, in her capacity as head of the union. Tabaddor said the backlog of 750,000 cases was created in part by government bureaucracy and a neglected immigration court system.

“Now, the same backlog is being used as a political tool to advance the current law enforcement policies,” she said.

Signature issue

Curbing immigration is a signature issue for the Trump administration, and the jobs of the nation’s more than 300 immigration judges are in the spotlight.

They decide whether someone has a legal basis to remain in the country while the government tries to deport them, including those seeking asylum. Tabaddor presides in Los Angeles, where she oversees 2,000 cases, including many involving juveniles.

The judges are employees of the Justice Department’s Executive Office for Immigration Review, which is overseen by the attorney general — unlike the criminal and civil justice systems where judges operate independently.

Immigration court judges have repeatedly asked for independence, and Tabaddor brought it up again Friday, calling the current structure a serious design flaw.

A Justice Department spokesman said the union has repeatedly tried to block common-sense reforms that would make the judges’ jobs better, and that the proper home for the courts is where they are right now, under DOJ.

FILE – The Arlington Immigration Court building in Arlington, Virginia. The courtrooms inside are plain, and cases are dispatched quickly, each one settled in five to 10 minutes. (A. Barros/VOA)

Earlier this year, the Justice Department sent a memo to immigration judges telling them they would need to clear at least 700 cases a year in order to receive a “satisfactory” rating on their performance evaluations. Sessions has pushed for faster rulings and issued a directive that prevents judges from administratively closing cases in an effort to decrease the backlog by 50 percent by 2020.

This month, he appointed 44 new judges, the largest class of immigration judges in U.S. history, and has pledged to hire more. He said in a speech to the judges that he wouldn’t apologize for asking them to perform “at a high level, efficiently and effectively.”

Tabaddor wouldn’t say whether the quotas were also putting pressure on judges to deport more people — not just decide cases faster.

“There’s certainly no question they’re under pressure to complete more cases faster,” she said. “I think I would just say listen to the attorney general’s remarks and you can decide what messaging is going to be sent.”

Asylum qualifications

Earlier this summer, Sessions tightened the restrictions on the types of cases that can qualify someone for asylum, making it harder for Central Americans who say they’re fleeing the threat of gangs, drug smugglers or domestic violence to pass even the first hurdle for securing U.S. protection.

Immigration lawyers say that’s meant more asylum seekers failing interviews with U.S. Citizenship and Immigration Services to establish credible fear of harm in their home countries. They also say that immigration judges are overwhelmingly signing off on those recommendations during appeals, effectively ending what could have been a yearslong asylum process almost before it’s begun.

President Donald Trump hasn’t been behind the move to bolster the roster of judges. “We shouldn’t be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice,” he said in a tweet in June, referring to Immigration and Customs Enforcement.

Watch the C-Span replay here:

https://archive.org/details/CSPAN2_20180921_170200_Federal_Immigration_Judge_Discusses_Court_System

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

We need an Article I independent US Immigration Court now!

Congress seems to be tied up in knots. Will the Article IIIs step up and begin enforcing the Due Process clause of the Constitution?

The solutions — remand every case for a new hearing in which: 1) Jeff Sessions shall not be involved, and 2) all precedents issued by Jeff Sessions are considered null and void. Jeff Sessions shall, however, be allowed to appear and make arguments as the attorney for DHS.

The Immigration Court System is collapsing. The lives of hundreds of thousands are at risk. We need less talk and more action to enforce Due Process!

Some historical perspective: EOIR once illegally tried to bar Judge Tabaddor from hearing Iranian cases because she attended a reception with other prominent Iranian Americans! Compare that the with the overt, unethical anti-immigrant bias that Jeff Sessions spews out on a regular basis. His bias affects justice for every respondent appearing in Immigration Court.

Is 21st Century America going to permit “political show trials” every day in Immigration Court?

PWS

09-24-18

INSIDE EOIR: How Sessions’s White Nationalist Anti-Due-Process Agenda Inspires Idiocy @ EOIR!

https://www.hoppocklawfirm.com/post-pereira-the-doj-chooses-harsh-ij-performance-metrics-over-compliance-with-supreme-court-mandate/

Post-Pereira, the DOJ Chooses Harsh IJ Performance Metrics Over Compliance With Supreme Court Mandate

by Matthew Hoppock | Sep 20, 2018 | Immigration, Immigration Practice | 1 comment

It now appears the Department of Justice has chosen not to comply with the Supreme Court’s decision in Pereira v. Sessions solely because doing so would conflict with the agency’s self-imposed deportation quotas it is placing on Immigration Judges, which go into effect October 1, 2018. The story unfolds in a series of e-mail messages obtained through FOIA and involve the interplay of two federal agencies tasked with separate responsibilities in the process of deciding whether to deport a person charged with being removable.

Much Ado About Scheduling Hearings

The basic issue raised by Pereirais that the immigration statute requires an immigration court charging document to list the date and time of the hearing. The Supreme Court said in Pereirathat a Notice to Appear (commonly known by its acronym: “NTA”) that doesn’t contain the date and time “is not a notice to appear” at all, which means arguably the proceedings were invalid and unlawful from the beginning.

Imagine having to go to traffic court even though the police officer wrote your ticket on a napkin, didn’t sign it, and it didn’t tell you when and where your court would be (or what you were being charged with). You or your attorney would march into court arguing this isn’t really a ticket, so why on earth am I even here? You would easily get the proceedings thrown out, because they were started improperly.

The difference here is that unlike traffic court, immigration court can result in lifetime expulsion from the United States, for individuals who may have a good reason to fear being harmed or killed if deported. And not showing up to court means an automatic order of removal.

Solving this problem would be simple. As the Supreme Court observed in Pereira:

As the Government concedes, ‘a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.’ Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before sending notices to appear.

If the system already exists, why weren’t they already using it?

The problem results from the decision by Congress in 2003 to separate of INS into two separate agencies: (1) the immigration courts (under the umbrella of the Department of Justice; and (2) the Department of Homeland Security, which is the prosecutor in immigration court cases.

The system for scheduling hearings (called “Interactive Scheduling System” or “ISS”) is owned by the Department of Justice, so it has sole decision-making power on whether the DHS, a separate agency, can access it and schedule hearings on its own. The DOJ ended that access at some point and has never restored it. Without access to that system, DHS has decided to fudge the date and time – issue NTAs with a line for the date and time but simply write “to be determined” on the line. And they have done that on most charging documents filed for the last 20 or so years.

This disconnect has resulted in a number of problems, the most serious of which is that immigrants don’t know when their hearing date is, so they miss the date and get ordered removed in in absentia (as happened to the immigrant in Pereira).

The Pereira decision left the DOJ with a pretty clear command from the Supreme Court: turn your system back on so DHS can schedule hearings. Most who practice in this area thought the Department of Justice would comply. Unfortunately, they haven’t.

Despite Pereira, EOIR Vacillates on Whether to Turn on ISS

Through a series of FOIA requests it has started to become clear what the agency decided to do after Pereira: nothing.

The Pereira decision was issued on June 21, 2018. Early on June 22, 2018 Rene Cervantes, the court administrator for the San Diego Immigration Court, e-mailed Rico Bartolomei Jr, the Assistant Chief Immigration Judge for that area, asking if the court should keep accepting the filing of NTAs by DHS without the date and time, despite what the Supreme court had just quite plainly said.

Bartolome responded that there had been no guidance from the DOJ, so for now they would keep accepting deficient NTAs for filing. By mid-afternoon on the 22nd, the discussion turned to whether the Department of Justice would “turn on ISS ASAP,” meaning enabling the DHS to access its scheduling system so it could file compliant notices to appear.

The answer was received that evening from Print Maggard, Deputy Chief Immigration Judge, that the decision of Director James McHenry was that “at this time we are not turning on ISS.”

By June 25, 2018 it looked like the DOJ had decided to turn the ISS system back on. In an e-mail Christopher Santoro, Principal Deputy Chief Immigration Judge, wrote that the only problem was timing, writing:

“[W]e were also told that, consistent with the benchmarks that went out with the new court performance measures, we need to get detained NTAs their first MC within 10 days of filing and non-detained NTAs their first MC within 90 days of filing. We also cannot be “full” – in other words, if DHS wants to file an NTA, there must be a slot for them to schedule it in within 10/90 days.”

Santoro was referring to the new Immigration Judge quotas going into effect on October 1, 2018. Since President Trump took office, the immigration court backlog has skyrocketed while case processing has slowed.

In response, the Attorney General has ordered draconian benchmarks which will require, among other things, that every judge in the country enter at least 700 orders per year. These measures are designed turn immigration courts into deportation machines – multiple Attorney General opinions have stripped judges of decision-making power while the agency orders more and more decisions to be made.

Relevant here, the new IJ quotas require detained hearings to be scheduled within 10 days of the prosecutor, DHS, filing the NTA with the court.

A June 25, 2018 e-mail from Mark Pasierb, chief clerk to the Immigration Court, explained that the ISS schedule system only has a certain number of slots for hearings with each judge each day. Thus, if the next ten days are “full,” allowing the DHS to access the ISS system will require it to pick a day that is beyond the DOJ’s self-imposed deportation quotas.

On June 27, 2018, Chief Immigration Judge Mary-Beth Keller sent out a timetable for when ISS would be turned on. She wrote that “effective immediately, NTAs filed at the window that do not specify the time and place of the hearing should be rejected.” She added that by July 2, 2018, the DOJ would turn the ISS system back on for non-detained cases and by July 16, 2018 for detained cases. However, that advice did not last long.

By July 11, 2018, the EOIR had decided officially to continue accepting non-compliant NTAs. Santoro e-mailed all court staff writing:

The Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs.

The DOJ Chooses Self-Imposed Deportation Quotas Over Complying With the Supreme Court.

What the June 25 Christopher Santoro e-mail reveals is that while the DOJ definitely has the power to turn on its scheduling system to comply with the Pereira decision, it does not want to, because it does not want that process (essentially ordered by the Supreme Court) to affect its new mega-deportation benchmarks that start on October 1, 2018.

The results are already being felt in Immigration Courts around the country. Without being able to access ISS, the prosecutors whose job it is to file these charging documents are just writing made-up dates or “dummy dates” on the charging documents. It’s hard to envision how the agency can get away with that; attorneys who file documents they know to be false (including having a pretend hearing date) are subject to discipline by their state bar.

More urgently, the people who receive these documents are showing up in court, sometimes within days, scheduling to travel across the country at times to attend a court hearing that was never even scheduled and is not going to take place.

Until the EOIR chooses to comply with the Supreme Court’s decision in Pereira (likely after parties are forced to litigate these issues in federal court) it is not clear there is any solution to this problem on the horizon.

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Four obvious “take-aways:”

Solving this problem isn’t “rocket science,” but it does exceed the collective abilities of the perpetuators of “Clown Court” (as the great Yogi Berra said, “Can’t anybody here play this game?”);
Sessions’s scofflaw, “haste makes waste,” attitude is now the “order of the day” at EOIR, which once purported to be a court system, not an ICE deportation office;
The DOJ & EOIR lack the competence to fairly and effectively administer a court system;
EOIR needs to go and be replaced with an independent court system outside the Executive’s control.

I will be fascinated to see how the DOJ attorneys defend this one before the Article IIIs with a “straight face” (or not).

Another day, another abuse of our justice system by Jeff Sessions and the “go alongs to get alongs” who are unwilling to stand up to him.

Many thanks to Matthew for shedding some much-needed light on the shady practices within EOIR & DOJ.

It would all be funny if people’s lives weren’t at stake.

PWS

09-21-18

GONZO’S WORLD: A.G.’S “MY WAY OR THE HIGHWAY” SPEECH TO NEW U.S. IMMIGRATION JUDGES CONTINUES TO DRAW FIRE! Hon. Jeffrey Chase & Others Criticize Sessions’s Inappropriate, Biased, & Unethical Demand That Judges Show No Mercy & Prejudge Asylum Cases Against Refugees! — Constitutional Crisis Brewing!!

https://www.jeffreyschase.com/blog/2018/9/15/like-water-seeping-through-an-earthen-dam

In addressing 44 newly-hired immigration judges earlier this week, their new boss, Jeff Sessions, demonstrated not only his usual level of bias (to a group charged with acting as impartial adjudicators), but a very strange grasp of how our legal system works.

Sessions told the new class of judges that lawyers “work every day – like water seeping through an earthen dam – to get around the plain words of the INA to advance their clients’ interest. Theirs is not the duty to uphold the integrity of the Act.”

Later in his remarks, Sessions opined that “when we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation.”

To me, the above remarks evince a complete misunderstanding of how our legal system works.

In 1964, the U.S. Supreme Court decided Katzenbach v. McClung, a landmark civil rights case. In order to find that the federal Civil Rights Act applied to a local, family-owned barbecue restaurant in Alabama, DOJ attorneys persuaded the Supreme Court that there was federal jurisdiction under the Constitution’s Commerce Clause because of segregation’s impact on interstate commerce. I’m no Constitutional law expert, but I’m not sure that when its authors afforded Congress the power “to regulate Commerce with foreign Nations, and among the several States,” that this is what they had in mind. Was creatively interpreting the Commerce Clause in order to end segregation “like water seeping through an earthen dam” to get around the clear words of the Constitution? Did ending segregation constitute, in Sessions’s opinion, doing violence to the rule of law out of a sense of sympathy for the black victims of Alabama’s racist policies?

Every positive legal development is the result of an attorney advancing a creative legal argument, often motivated by a sense of sympathy for unfair treatment of a class of individuals in need of protection. Many landmark decisions have resulted from such attorneys offering the court an unorthodox but legally sound solution to a sympathetic injustice. This is actually how the legal system is supposed to operate. Our laws are made by Congress, and not the Executive branch. When Congress drafts these laws, they and their staffers are well aware of the existence of lawyers and judges and their ability to interpret the statutory language.

Had Congress not wanted our asylum laws to be flexible, allowing them to be interpreted in myriad ways to respond to changing types of persecution carried out by different types of actors, it could have said so. When the courts found that victims of China’s coercive family planning policies did not qualify for asylum, Congress responded by amending the statutory definition of “refugee” to cover such harm. In the four years following the BIA’s conclusion that victims of domestic violence qualified for asylum, Congress notably did not enact legislation barring such grants. To the contrary, after Jeff Sessions issued his decision with the intent of preventing such grants, a Republican-led Congressional committee unanimously passed a measure barring funding for government efforts to carry out Sessions’ decision, a clear rebuke by the legislative branch of Sessions’s view that such claims are illegitimate. https://www.washingtonpost.com/politics/gop-led-house-committee-rebuffs-trump-administration-on-immigrant-asylum-claim-policy/2018/07/26/3c52ed52-911a-11e8-9b0d-749fb254bc3d_story.html?utm_term=.809760180e2a.

Interestingly, Sessions finds it perfectly acceptable to use unorthodox interpretations of the law when it serves his own interests. For example, he argues that he is upholding “religious liberty” in defending the right of bigots to discriminate against LGBTQ individuals. https://www.advocate.com/politics/2018/7/30/sessions-launches-new-lgbt-assault-religious-liberty-task-force. The conclusion drawn from this inconsistency is that Sessions does not oppose creative interpretations of the law; he rather believes that the only proper interpretation of the law is his.

One of the problems with this approach is that Sessions doesn’t actually know anything about the law of asylum. And yet he somehow feels entitled to belittle the analysis of the leading asylum experts in academia, the private bar, USCIS, ICE, and EOIR, all of whom have repeatedly found victims of domestic violence to satisfy all of the legal criteria for asylum. In its 1985 decision in Matter of Acosta, (a case that Sessions cited favorably in his controversial decision), the BIA noted that the ground of “particular social group” was added to the 1951 Convention on the Status of Refugees (which is the basis for our asylum laws) “as an afterthought.” The BIA further noted that “it has been suggested that the notion of ‘social group’ was considered to be of broader application than the combined notions of racial, ethnic, and religious groups and that in order to stop a possible gap in the coverage of the U.N. Convention, this ground was added to the definition of refugee.” (The full decision in Acosta can be read here: https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/2986.pdf).

As a young attorney, I learned (from the late, great asylum scholar Arthur Helton) that at the last moment, the Swedish plenipotentiary to the 1951 Convention pointed out that there were victims of Hitler and Stalin in need of protection who did not fall under the other four Convention grounds of race, religion, nationality, or political opinion. A fifth, catch-all ground was therefore proposed to serve as a “safety net” in such cases. In other words, the reason the particular social group category was created and is a part of our laws was because the Convention’s drafters, perhaps “like water seeping through an earthen dam,” created an intentionally nebulous legal standard out of a sense of sympathy for victims of injustice. The ground was therefore created to be used for the exact purpose decried by Sessions.

Because of the strength of such legal authority, Sessions’s decision in Matter of A-B-, in spite of dicta to the contrary, actually still allows for the granting of domestic violence and gang violence-based asylum claims. The decision criticized the BIA’s precedent decision in Matter of A-R-C-G- for reaching its conclusion without explaining its reasoning in adequate detail. However, where the record is properly developed, a legally solid analysis can be shown to support granting such claims even under the standards cited by Sessions.

This is what makes Sessions comments to the new class of immigration judges so disturbing. Having appointed judges whom his Justice Department has found qualified, he should now leave it to them to exercise their expertise and independent judgment to interpret the law and determine who qualifies for asylum. But in declaring such cases to lack validity, belittling private attorneys innovative arguments, and equating the granting of such claims to doing violence to the rule of law, Sessions aims to undermine right from the start the judicial independence of the only judges he controls. EOIR’s management has demonstrated that it has no intention of pushing back; instead, it asks how high Sessions wants the judges to jump.

Knowing this, how likely is one of the 44 new judges to grant asylum to a victim of domestic violence who has clearly met all of the legal criteria? New immigration judges are subject to a two-year probationary period. It’s clear that a grant of such cases under any circumstances will be viewed unfavorably by Sessions. In a highly publicized case, EOIR’s management criticized a judge in Philadelphia whose efforts at preserving due process they bizarrely interpreted as an act of disobedience towards Sessions, and removed the case in question and more than 80 cases like it from the judge’s docket.

So if a new judge, who may have a family to support, and a mortgage and college tuition to pay, is forced to choose between applying the law in a reasoned fashion and possibly suffering criticism and loss of livelihood, or holding his or her nose and adhering to Sessions’s views, what will the likely choice be?

Sessions concluded his remarks by claiming that the American people “have spoken in our laws and they have spoken in our elections.” As to the latter, Americans voted against Trump’s immigration policies by a margin of 2.8 million votes. As to the former, Congress has passed laws which have been universally interpreted by DHS, EOIR, and all leading asylum scholars as allowing victims of domestic violence to be granted asylum based on their membership in a particular social group. It is time for this administration to honor the rule of law and to restore judicial independence to such determinations.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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https://www.msn.com/en-us/news/politics/immigration-judges-hit-back-at-sessions-for-suggesting-they-show-too-much-sympathy/ar-BBNbbLK

Tal Axelrod reports in The Hill:

A union representing the country’s 350 immigration judges slammed Attorney General Jeff Sessions for comments he made that suggested they were sidestepping the law and showing too much sympathy when handling certain cases.

“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said Monday in a speech to newly hired judges. “Your job is to apply the law – even in tough cases.”

Immigration judges, who work for the Department of Justice and are expected to follow guidelines laid out by the attorney general, said they believe Sessions was politicizing migrant cases.

“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” Dana Marks, a spokeswoman for the National Association of Immigration Judges and an immigration judge in San Francisco, told BuzzFeed News. “It did appear to be a one-sided argument made by a prosecutor.”

Ashley Tabaddor, president of the National Association of Immigration Judges, added that “we cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role.”

Sessions, an ideological ally of President Trump on immigration, has established additional restrictions on the types of cases that qualify for asylum and when certain cases can be suspended. He was involved in the White House’s controversial “zero tolerance” policy that led to family separations at the U.S.-Mexico border.

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http://immigrationimpact.com/2018/09/11/speech-to-new-immigration-sessions-attacks-immigration-lawyers/

AARON REICHLIN-MELNICK of the American Immigration Council reports on Immigration Impact:

Rather than encourage the new class of 44 immigration judges to be fair and impartial adjudicators in his Monday morning speech, Attorney General Jeff Sessions advocated for a deeply flawed immigration court system and directed judges to carry out the Trump administration’s punitive, anti-immigration agenda.

While many would have taken the opportunity to reinforce principles of due process and fairness to new judges, Sessions instead emphasized that judges must follow his commands and encouraged judges to ignore “sympathy” when applying the law to noncitizens in their courtrooms. He also renewed his criticisms of immigration lawyers and the noncitizens who access immigration courts each day in order to apply for immigration relief.

Throughout his speech, Sessions framed the role of immigration judges as enforcers of the law, not as neutral adjudicators in an adversarial system. He declared that the work of the new judges would “send a clear message to the world that the lawless practices of the past are over” and railed against “the problem of illegal immigration.”

Rather than be a place where individuals ask for immigration relief and impartial judges weigh the merits of each case, Sessions seemed to argue for the courts to be turned into a deportation mill. Judges would then spearhead the fight against illegal immigration.

Despite the Attorney General’s authority to establish performance standards and create new precedent for judges to follow, the Immigration and Nationality Act (INA) allows judges to independently make decisions on individual immigrants’ cases.

Ashley Tabaddor, the president of the union representing immigration judges, reacted to Sessions’ remarks, calling them “troubling and problematic” and accused Sessions of not “appreciat[ing] the distinction” between judges and prosecutors. “We are not one and the same as them.”

Sessions also renewed his attacks on immigration lawyers, first articulated in a 2017 speech (for which he was widely condemned) when he accused “dirty immigration lawyers” of encouraging undocumented immigrants to “make false claims of asylum [by] providing them with the magic words needed” to claim asylum.

Monday’s speech returned to a similar theme, with Sessions claiming that “good lawyers … work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the Act.”

In response to this new attack, the American Immigration Lawyers Association issued a press release accusing Sessions of expressing “disdain for lawyers who take a solemn oath to uphold the law” and showing “a complete disregard for the role of independent judges in overseeing our adversarial system.”

Sessions’ ongoing assault on judicial impartiality threatens to undermine the ability of judges to make decisions based only on the facts and law in front of them.

In addition, by attacking immigration lawyers, who every day play a vital role in ensuring that noncitizens have a fair day in court, Sessions continues to demonstrate that he has little interest in fairness or justice when it comes to immigrants. Our immigration courts should reflect our American values of fairness, compassion, and due process, rather than a rejection of them.

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https://www.newsweek.com/jeff-sessions-immigration-judges-sympathy-1115512

U.S.

JEFF SESSIONS DEMANDS IMMIGRATION JUDGES SHOW NO SYMPATHY, SAYS IT DOES ‘VIOLENCE TO THE RULE OF LAW

BY RAMSEY TOUCHBERRY 09/11/18 AT 10:51 AM in NEWSWEEK

As the Trump administration continued to struggle to reunite hundreds of migrant children separated from their parents resulting from the president’s “zero-tolerance” policy, Attorney General Jeff Sessions told dozens of incoming immigration judges Monday to show no sympathy for those who appear before them in court.

“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said. “Your job is to apply the law—even in tough cases.”

Sessions, the most powerful attorney in the country as head of the Justice Department, was speaking to 44 new immigration judges in Falls Church, Virginia.

He also took aim at lawyers who represent immigrants who were caught illegally crossing the U.S.-Mexico border, suggesting they try to misconstrue immigration law “like water seeping through an earthen dam.” He told the judges it was their responsibility to “restore the rule of law” to the system.

. . . .

Read the rest of Ramsey’s article at the above link.

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There is a simple term for justice not tempered by mercy, compassion, and sympathy: INJUSTICE. Indeed, the Fifth Amendment to the U.S. Constitution, which includes the essential Due Process Clause, was specifically intended to protect the populace against Executive overreach of the kind that England imposed on the Colonies prior to the Revolution. That’s exactly what we’re seeing under Jeff Sessions!

As most Immigration Judges recognize, Session’s overt White Nationalism, racial bias, and absurd claims that he is “restoring the rule of law” (when in fact he is doing the exact opposite) are totally out of control.

It’s time for a “Due Process intervention” by the Article III Courts. Sessions and the DOJ must be stripped of their untenable and unconstitutional control over the Immigration Courts. Appoint a “Special Master” — someone like retired U.S. Supreme Court Justice Anthony Kennedy — to run the Immigration Court System and restore Due Process and fairness until Congress does its job and creates an independent U.S. Immigration court outside the Executive Branch.

The problems aren’t going away under the Trump Administration. And, if the Article III Judiciary doesn’t act it will find itself crushed under thousands of defective removal orders that Sessions is urging the Immigration Judges to turn out without Due Process or the “fair and impartial” adjudication that it guarantees. The Article IIIs can run, but they can’t hide from this Constitutional crisis!

Sessions’s remarks are also an insult to all of the many current and former U.S Immigration Judges who, unlike Jeff Sessions, have been deciding “tough cases” for years, within the law, but with sympathy, understanding, humanity, and compassion which are also essential qualities for fair judging under our Constitutional system that Sessions neither understands nor respects. No wonder his own party judged him unqualified for an Article III judgeship years ago. He hasn’t changed a bit.

PWS

09-17-18

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I wanted to emphasize a few important points that you also may have heard from your ACIJ during your court meetings:

– We have concluded our discussions with NAIJ, and in the near future, we will publish on the intranet the Memorandum of Understanding that both parties agreed to at the conclusion of bargaining. Please review this document carefully when it becomes available.

– Please be patient, especially during the rollout and at the end of the first quarter, when numbers are likely to be low due to holidays and leave.

Thank you.

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