Honorable A. Ashley Tabaddor – Page 13 – immigrationcourtside.com

JOSEPH TANFANI @ LA TIMES: More Critical Reaction To Sessions’s Immigration Court Quotas — “If you’ve got a system that is producing defective cars, making the system run faster is just going to result in more defective cars.” (PWS)

http://www.latimes.com/politics/la-na-pol-immigration-courts-20180406-story.html

Joseph Tanfani reports for the LA TIMES:

The nation’s 58 immigration courts long have been the ragged stepchild of the judicial system – understaffed, technologically backward and clogged with an ever-growing backlog of cases, more than 680,000 at last count.

But a plan by Atty. Gen. Jeff Sessions, a longtime immigration hawk, aimed at breaking the logjam and increasing deportations of immigrants in the country illegally has drawn surprising resistance from immigration judges across the country.

Many say Sessions’ attempts to limit the discretion of the nation’s 334 immigration judges, and set annual case quotas to speed up their rulings, will backfire and made delays even worse — as happened when previous administrations tried to reform the system.

“It’s going to be a disaster and it’s going to slow down the adjudications,” warned Lawrence O. Burman, secretary of the National Assn. of Immigration Judges, a voluntary group that represents judges in collective bargaining.

Cases already move at a glacial pace. Nationwide, the average wait for a hearing date in immigration court is about two years, according to data analyzed by the Transactional Records Access Clearinghouse, a research organization at Syracuse University.

But some jurisdictions are much slower. The immigration court in Arlington, Va., where Burman is a judge, has a four-year backlog, meaning hearings for new cases are being scheduled in 2022. Burman says the reality is far worse — the docket says he has 1,000 cases scheduled to begin on the same day in 2020.

. . . .

Another problem: Poorly funded immigration courts still use paper files, slowing access to information, while other federal courts use digital filing systems.

The Executive Office of Immigration Review, the Justice Department office that oversees the courts, started studying the problem in 2001. It has issued numerous reports and studies over the last 17 years, but accomplished little in the way of computerized record keeping.

. . . .

The judges don’t see it that way. Burman and other leaders of the immigration judges’ association, in an unusual public protest, say Sessions’ plan will force judges to rush cases and further compromise the courts’ already battered reputation for fairness.

“Clearly this is not justice,” said the association president, Judge A. Ashley Tabaddor, who sits in Los Angeles, the nation’s busiest immigration court. The plan will “undermine the very integrity of the court.”

Sessions is not the first U.S. attorney general to try to push deportation cases through the system faster.

John Ashcroft, who served under President George W. Bush, unveiled a streamlined approach in 2002, firing what he called softhearted judges from the 21-member Board of Immigration Appeals, the highest administrative body for interpreting and applying immigration laws.

The result was an increase of cases sent back by federal courts, which reviewed the decisions – and more delays.

Under the Obama administration, immigration judges were ordered to prioritize old cases to try to clear the backlog. But after thousands of unaccompanied minors from Central America surged to the southwest border in 2014, they were told to focus on those cases instead. As the dockets were reshuffled, the backlog kept growing.

Last fall, Sessions ordered 100 immigration judges from around the country to travel to courts on the border to move cases quickly. The Justice Department pronounced it a success, saying they finished 2,700 cases.

Some of the judges were less enthusiastic.

“We had nothing to do half the time,” said Burman, who spent eight weeks in border courts. “I’m not saying it’s a bad idea, but they sent more people than they needed to” while his caseload in Virginia languished for those two months.

Immigration advocates say the answer is more resources: more judges, more clerks, and legal representation for immigrants. They also say the courts should be independent, not under the Justice Department.

“Everybody wants to hear there’s some magical solution to make all this fine. It’s not going to happen,” said Paul Schmidt, a former immigration judge and former chairman of the Board of Immigration Appeals.

“If you’ve got a system that is producing defective cars, making the system run faster is just going to result in more defective cars,’ he said.

Staff writer Brian Bennett contributed to this report.

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Go on over to the LA Times at the above link for Joseph’s complete article.

Those of us in the Immigration Courts at the time of the “Ashcroft debacle” know what a complete disaster it was from a due process, fairness, and efficiency standpoint. Far too many of the cases were returned by the Article III Courts for “redos” because Immigration Judges and BIA Members were encouraged to “cut corners” as long as the result was an order of removal.

Some judges resisted, but many “went along to get along.” Some of the botched cases probably still are pending. Worse, some of the botched, incorrect orders resulted in unjust removals because individuals lacked the resources or were too discouraged to fight their cases up to the Courts of Appeals. And, the Courts of Appeals by no means caught all of the many mistakes that were made during that period. Haste makes waste. I analogized it to being an actor in a repertory theater company playing the “Theater of the Absurd.” Now, Sessions is promoting a rerun of another variation on that failed theme.

Somebody needs to fix this incredibly dysfunctional system before shifting it into “high gear.” And, it clearly won’t be Jeff Sessions.

PWS

04-07-18

HON. BRUCE J. EINHORN IN WASHPOST: SESSIONS’S BLATANT ATTEMPT TO INTIMIDATE U.S. IMMIGRATION JUDGES TO DEPORT INDIVIDUALS IN VIOLATION OF DUE PROCESS SHOWS A SYSTEM THAT HAS HIT ROCK BOTTOM! — Are There Any “Adults” Out There In Congress Or The Article III Courts With The Guts To Stand Up & Put An End To This Perversion Of American Justice? — “Due process requires judges free of political influence. Assembly-line justice is no justice at all.”

https://www.washingtonpost.com/opinions/jeff-sessions-wants-to-bribe-judges-to-do-his-bidding/2018/04/05/fd4bdc48-390a-11e8-acd5-35eac230e514_story.html?utm_term=.770822e8f813

My former colleague Judge Bruce J. Einhorn writes in the Washington Post:

Bruce J. Einhorn, an adjunct professor of immigration, asylum and refugee law at Pepperdine University, served as a U.S. immigration judge from 1990 to 2007.

It’s a principle that has been a hallmark of our legal culture: The president shouldn’t be able to tell judges what to do.

No longer. The Trump administration is intent on imposing a quota system on federal immigration judges, tying their evaluations to the number of cases they decide in a year. This is an affront to judicial independence and the due process of law.

I served as a U.S. immigration judge in Los Angeles for 17 years, presiding over cases brought against foreign-born noncitizens who Immigration and Customs Enforcement officers believed were in this country illegally and should thus be removed. My responsibility included hearing both ICE’s claims and the claims from respondents for relief from removal, which sometimes included asylum from persecution and torture.

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As a judge, I swore to follow the Fifth Amendment of the U.S. Constitution, which guarantees that “no person” (not “no citizen”) is deprived of due process of law. Accordingly, I was obliged to conduct hearings that guaranteed respondents a full and reasonable opportunity on all issues raised against them.

My decisions and the manner in which I conducted hearings were subject to review before the U.S. Board of Immigration Appeals and U.S. courts of appeals. At no time was my judicial behavior subject to evaluation based on how quickly I completed hearings and decided cases. Although my colleagues on the bench and I valued efficiency, the most critical considerations were fairness, thoroughness and adherence to the Fifth Amendment. If our nativist president and his lapdog of an attorney general, Jeff Sessions, have their way, those most critical considerations will become a relic of justice.

Under the Trump-Sessions plan, each immigration judge, regardless of the nature and scope of proceedings assigned to him or her, will be required to complete 700 cases in a year to qualify for a “satisfactory” performance rating. It follows that only judges who complete more, perhaps many more, than 700 cases per year will qualify for a higher performance rating and, with it, a possible raise in pay.

Essentially, the administration’s plan is to bribe judges to hear and complete more cases regardless of their substance and complexity, with the corollary that judges who defy the quota imposed on them will be regarded as substandard and subject to penalties. The plan should be seen for what it is: an attempt to undermine judicial independence and compel immigration judges to look over their shoulders to make sure that the administration is smiling at them.

This is a genuine threat to the independence of the immigration bench. While Article III of the Constitution guarantees the complete independence of the federal district courts and courts of appeal, immigration judges are part of the executive branch. Notwithstanding the right of immigration judges to hear and decide cases as they believe they should under immigration law, they are unprotected from financial extortion and not-so-veiled political intimidation under the U.S. Administrative Procedure Actor any regulations.

Moreover, federal laws do not guarantee respondents in removal hearings a right to counsel, and a majority of those in such hearings are compelled to represent themselves before immigration judges, regardless of the complexity of their cases. Those who lack representation in removal hearings typically cannot afford it, and the funds to help legal aid organizations fill in for private attorneys are nowhere to be found.

Hearings in which respondents proceed pro se, or unrepresented, are often the most challenging and time-consuming for immigration judges, who must take care to assure that the procedural rights of those facing possible removal are protected and to guarantee that inarticulate relief claims are fully considered.

The Trump administration’s intention is clear: to intimidate supposedly independent judges to expedite cases, even if it undermines fairness — as will certainly be the case for pro se respondents. Every immigration judge knows that in general, it takes longer to consider and rule in favor of relief for a respondent than it does to agree with ICE and order deportation. The administration wants to use quotas to make immigration judges more an arm of ICE than independent adjudicators.

In my many years on the immigration bench, I learned that repressive nations had one thing in common: a lack of an independent judiciary. Due process requires judges free of political influence. Assembly-line justice is no justice at all.

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Thanks, Bruce for speaking out so forcefully, articulately, and truthfully!

Jeff Sessions is a grotesque affront to the U.S. Constitution, the rule of law, American values, and human decency. Every day that he remains in office is a threat to our democracy. There could be no better evidence of why we need an independent Article I U.S. Immigration Court!

Due Process Forever! Jeff Sessions Never! Join the New Due Process Army Now! The fight must go on until Sessions and his toxic “21st Century Jim Crows” are defeated, and the U.S. Immigration Courts finally are forced to deliver on the betrayed promise of “guaranteeing fairness and due process for all.” Harm to the most vulnerable among us is harm to all!

PWS

04-05-18

NAIJ PRESIDENT, JUDGE A. ASHLEY TABADDOR RESPONDS TO DOJ’S UNILATERAL ACTION ON PRODUCTION QUOTAS FOR U.S. IMMIGRATION JUDGES — DOJ Spokesperson Bald-Faced Lied To Media! — Quota Memo Is An Attack On Quality Of Judicial Decisions & Due Process – What Other Court In America Imposes Artificial Limits On Its Judges’ Ability To Perform Scholarship & Write Fair, Cogent Decisions? Get My “Inside Look” At The Appalling Dysfunction, Intentionally Inflicted Chaos, & Disregard For Fundamental Fairness Plaguing Our U.S. Immigration Courts In The “Age of Sessions!”

I have permission Judge Tabaddor to release the text of the following e-mail, dated April 2, 2018, that I received from her (solely in her capacity as NAIJ President) because I am a retired member of the NAIJ:

Dear NAIJ Members,

Last Friday we all received the Director’s announcement of his decision to impose quotas and deadlines on immigration judges as a basis of our individual performance evaluations effective October 2018. To clarify any confusion, I would like to re-iterate that at no point has NAIJ ever agreed that quotas and deadlines are an appropriate manner in which to evaluate immigration judge performance. To the contrary, NAIJ has always remained deeply concerned about this unprecedented decision which undermines our independent decision-making authority, invites unnecessary litigation, and adds to the existing burdens and demands on our judges.

I also would like to reiterate that NAIJ is pursuing all available means to ensure that these measures are fairly implemented. We have been engaged with EOIR for the past six months on these very issues and continue to stand in full support of our judges and the integrity of the Court. Prior to the email, NAIJ was pursuing the terms of an MOU with EOIR in an effort to reach a mutually agreeable solution in an informal and more cooperative fashion. However, with the Director’s announcement, NAIJ is now exercising formal bargaining rights.

We invite you to reach out to myself or any of our officers and representatives with any questions, concerns, or suggestions. We will keep you apprised of the ongoing negotiations and developments on this issue.

Thank you
Ashley Tabaddor

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As I had suggested earlier, the claim that the NAIJ had “agreed” to the production quotas was simply another lie by the Sessions DOJ. Lies, mis-representations, distortions, bogus statistics — why is this Dude our Attorney General given his proven record of disdain for truth, our law, our Constitution, and human decency as well as his total lack of any judicial qualifications to be administering perhaps the largest Federal Court system?

Another “under the radar” aspect of this toxic attempt to compromise due process in the Immigration Court system was pointed out to me by my good friend and colleague retired U.S. immigration Judge Carol King of San Francisco. As Judge King points out, by requiring U.S. Immigration Judges to render almost all final decisions at the hearing or within a few days of the hearing, the Attorney General is basically forcing them to use the widely discredited “contemporaneous oral decision” format rather than the preferred “full written decision” format.

Having reviewed thousands of Immigration Judge decisions during my career as an Appellate Immigration Judge on the BIA, and rendered thousands more during my time as a U.S. Immigration Judge in Arlington, I can say that with few exceptions, the “oral decision format” is grossly inadequate to meet the needs of today’s complex asylum litigation, particularly for cases to go to the Courts of Appeals. Oral decisions commonly have factual and citation errors as well as grammatical, spelling, and punctuation errors caused by the totally un-judicial format.

Moreover, except in unusual cases, Immigration Judges are not permitted to have a transcript made before rendering a decision! The case is only transcribed by EOIR at the time an appeal to the BIA is actually taken, well after the Immigration Judge has completed his or her decision.

At the beginning of my 45 year legal career, I used “real dictation” in some of my jobs. The basic idea was that the initial draft was a “quick and dirty” that was then reviewed, revised, and corrected numerous times before being issued as a “final.” Indeed, at Jones Day, which had a typing pool back in the 1980s when I was there, I used to leave my dictated drafts when I went home at night for the “overnight typing pool” to have on my desk the next morning. I would never have dreamed of issuing a client letter or brief that hadn’t been reviewed, revised, and retyped (and then probably read by one of my colleagues).

By contrast, a U.S. Immigration Judge must dictate a final oral decision at the conclusion of the hearing, or shortly thereafter, with the parties present (talk about a waste and disrespect for time) and no actual transcriber in the room. If an appeal is taken, the oral decision portion of the digital recording is “separated” and typed in a decision format. While the Immigration Judge does receive an electronic copy of the decision at the time it goes to the Board Panel for adjudication, my experience is that any corrections by the Immigration Judge are seldom in the BIA record file at the time the BIA acts on the case. Moreover, trial judges are specifically limited to making “editorial” changes. Major changes to legal analysis, fact-finding, or even results can’t be made during this review process.

Unlike other Federal and State judges in courts of comparable authority, U.S. Immigration Judges also are forced to work without any individually selected Judicial Law Clerks (“JLCs”). Immigration Judges must share a “pool” of JLCs (occasionally not even in the same court location) selected, assigned, and “supervised” by EOIR Headquarters with minimal, if any, input from the Immigration Judges.

Moreover, the JLCs report to and are “evaluated” by an Assistant Chief Judge who more often than not is in Falls Church, VA, far removed from the actual trial courts! (Immigration Judges are given an option to submit performance comments” to the ACIJ, but never see the final evaluations of the JLCs). Sometimes a JLC may go a year or more without any “in person” interaction with his or her “supervisor.” What other judges, in any system, are forced to work under these types of conditions?

I firmly believe that the clearly inferior work product produced by the “oral decision” format is one of the reasons the U.S. Immigration Judges have an unfortunate “unprofessional” reputation with some of the Courts of Appeals.

Let’s use a “real life” example. My son was a JLC for a U.S. District Court Judge. That Judge actually had sufficient “out of court” time to do some of his own writing. If asked to prepare a draft decision, my son submitted it to his District Judge who carefully reviewed, revised, and commented on the draft. Then my son reworked the decision to his District Judge’s individual specifications and all citations, fact-finding, and other references were carefully checked, as well as spelling, punctuation , style, etc. The end product looked somewhat like a scholarly law review article in judicial decision format. Not surprisingly, that District Judge’s opinions were seldom reversed by the Court of Appeals.

Now imagine a Court of Appeals Judge, just after reading that decision, picks up an immigration file involving a complex life or death asylum case. The decision looks like it was written by a high school student who flunked remedial English. Run on sentences, not many paragraphs, non-standard punctuation, mis-spellings and incomprehensible citations. Moreover, on further examination, the Circuit Court Judge’s personal law clerk has already discovered some glaring factual errors in the Immigration Judge’s “stream of consciousness” recitation of the facts. The BIA “summarily affirmed” the result in a single-Member decision with no reasoning! No wonder the Immigration Courts are often lowly regarded by the reviewing Circuit Courts!

U.S. Immigration Judges are being placed in an impossible position. While Sessions proposes to “grade” them on appellate reversals and remands, he simultaneously will restrict and artificially limit their ability to do research, review actual records and transcripts, and prepare careful, high quality written decisions. Sessions intends to impose new “quotas” without meaningful input from: 1) the ImmigratIon Judges who hear the cases; 2) the Appellate Immigration Judges on the BIA; 3) the parties and attorneys who appear in Immigration Court, or 4) the U.S. Circuit Court Judges who must review the Immigration Court’s work product. What kind of process is that? Why is Sessions being allowed to get away with this? No other court system in America operates in such an intentionally dysfunctional manner.

Instead of working on real reforms that would improve the quality of justice and the ability of already overwhelmed U.S. Immigration Judges to deliver fairness and due process, Jeff Sessions intentionally is further degrading both the Immigration Judges and the process! “Just say no” to the malicious incompetence of Jeff Sessions and his DOJ!

PWS

04-04-18

AS EVIDENCE OF SESSIONS’S BIAS AND INCOMPETENCE TO RUN THE IMMIGRATION COURT SYSTEM MOUNTS, HE “GOES GONZO” ON US IMMIGRATION JUDGES & IMMIGRANTS SEEKING JUSTICE — Dropping All Pretensions That These Are Anything Other Than “Kangaroo Courts,” Gonzo Imposes Assembly Line Quotas That Are Unconstitutional On Their Face!

HERE ARE THE EOIR (SESSIONS) MEMOS:

from Asso Press – 03-30-2018 McHenry – IJ Performance Metrics

03-30-2018 EOIR – PWP Element 3 new

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Both the BIA and the Federal Courts have found that “case completion goals” can’t be used as the sole basis for denying a continuance. , 531 F.3d 256 (3d Cir. 2008); Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009). Rather, continuance decisions must be made case-by-case on the basis of a careful consideration and weighing of all relevant factors. By purporting to make the mathematical formulas mandatory rather than goals, the Attorney General only compounds the problem.
- Here are copies of the Hashmi cases:
- 3rd on case completion 063934p
- 3640–Hashmi
Neither Sessions nor Director McHenry has ever served as a U.S. Immigration Judge. They both are totally unqualified to determine “performance criteria” for judges supposedly exercising “independent judgment and discretion.” Indeed, Sessions was once nominated for a Federal District Judgeship but was found unqualified because of his record of racially tinged bias. He has no business being in change of any judiciary.
Numerical quotas simply have no place in a fair judicial system. Having worked with judges in both a supervisory and a collegial capacity for over two decades, my observation is that all good judges do not work at the same pace. Some simply take more time than others to reach a fair result. That doesn’t mean that they are less qualified, less hard-working, or less fair. Indeed in some cases those who take longer to reach a decision are better and more careful judges than those who are more “productive.”
The use of appeal statistics is particularly bogus. I had some cases where I was reversed by the BIA only to be vindicated by the Court of Appeals. In other cases, I was reversed by the Court of Appeals for faithfully applying a BIA precedent that was found to be erroneous. I also had cases while I was an appellate judge on the BIA where my dissenting view was ultimately found by the Court of Appeals be correct and the majority’s view erroneous .
Justice is not a “widget” that can be subjected to “performance standards” by politicos who are not judges. This is all a “smokescreen.” The real problem plaguing the Immigration Court system starts with unqualified politicos interfering in proper docket management and decision-making by judges. Jeff Sessions is a prime example of all that is wrong with the current Immigration Court system.
Contrary to the DOJ’s claim, the National Association of Immigration Judges (“NAIJ”) never agreed to these so-called “performance metrics.” I was actually part of the NAIJ team that negotiated the existing performance evaluation system. We were assured by management at that time that while non-binding “goals and timetables” might be developed by the agency as informal guidance, they were not “numerical quotas” and would not be used in determining individual performance.

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Here’s an article by Tal Kopan @ CNN on the latest memos:

Justice Department rolls out case quotas for immigration judges

By: Tal Kopan, CNN

The Department of Justice has announced it will evaluate immigration judges on how many cases they close and how fast they hear cases, a move that judges and advocates criticize as potentially jeopardizing the courts’ fairness and perhaps leading to far more deportations.

The policy has been in the works for months, as Attorney General Jeff Sessions and the Trump administration have been working to assert more influence over the immigration courts, or the separate court system built just for hearing cases about whether noncitizens have a claim to stay in the US.

US law gives the attorney general broad and substantial power to oversee and overrule these courts, as opposed to the civil and criminal US justice system, which is an independent branch of government. In the immigration courts, judges are employees of the Department of Justice.

Sessions has been testing the limits of that authority in multiple ways, and in a memo Friday, the director of the immigration courts informed judges they would now be evaluated on a set of metrics including the speed and volume of cases heard.

The Justice Department says the move is designed to make the system more efficient. The immigration courts have a backlog of hundreds of thousands of cases, and it can take years for an immigrant’s case to work its way to completion. In that time, the individuals build lives in the US, and critics point to the immigration courts’ backlog as a major factor in the number of undocumented immigrants living in the US.

“These performance metrics, which were agreed to by the immigration judge union that is now condemning them, are designed to increase productivity and efficiency in the system without compromising due process,” a Justice Department official said of the memo. The official added that any judges who fail to meet performance goals would be able to present extenuating circumstances to the Justice Department.

More: http://www.cnn.com/2018/04/02/politics/immigration-judges-quota/index.html

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There are an estimated eleven million undocumented individuals living in the United States. That population has grown up over decades primarily as the result of poorly designed and unrealistically restrictive laws that failed to recognize the need of U.S. employers for immigrant labor and further threw up artificial roadblocks to individuals already in the U.S. obtaining legal status. To claim that the Immigration Courts are a “major cause” of this accumulated undocumented population is simply preposterous.

PWS

04-03-18

NPR: Sessions Out To Destroy US Immigration Court System — “All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ!”

https://www.npr.org/2018/03/29/597863489/sessions-want-to-overrule-judges-who-put-deportation-cases-on-hold

Joel Rose reports for NPR:

The Trump administration has been trying to ramp up deportations of immigrants in the country illegally. But one thing has been standing in its way: Immigration judges often put these cases on hold.

Now Attorney General Jeff Sessions is considering overruling the judges.

One practice that is particularly infuriating to Sessions and other immigration hard-liners is called administrative closure. It allows judges to put deportation proceedings on hold indefinitely.

“Basically they have legalized the person who was coming to court, because they were illegally in the country,” Sessions said during a speech in December.

Sessions is using his authority over the immigration court system to review a number of judicial decisions. If he overturns those decisions, thousands of other cases could be affected. In this way, he is expected to end administrative closure, or scale it back.

The attorney general may also limit when judges can grant continuances and who qualifies for asylum in the United States.

This could reshape the nation’s immigration courts, which are overseen by the Justice Department, and make them move faster. Sessions says he is trying to clear a massive backlog of cases that is clogging the docket.

But critics say he is weighing changes that would threaten the due process rights of immigrants, and the integrity of immigration courts.

“What he wants is an immigration court system which is rapid, and leads to lots of deportations,” said Nancy Morawetz, who teaches the Immigrant Rights Clinic at New York University School of Law.

“It’s really just an unprecedented move by the attorney general to change the way the whole system works,” she said.

It’s rare for an attorney general to exercise this power, but Sessions has done it four times in the past three months.

Separately, for the first time, the Justice Department is setting quotas for immigration judges, pushing them to resolve cases quickly in order to meet performance standards.

It’s not just immigration lawyers who are worried about the effect of any changes. The union that represents immigration judges is concerned, too.

“A lot of what they are doing raises very serious concerns about the integrity of the system,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, “judges are supposed to be free from these external pressures.”

The attorney general insists he’s trying to make sure that judges are deciding cases “fairly and efficiently.” And says he is trying to clear a backlog of nearly 700,000 cases.

That is in addition to the hundreds of thousands of cases in administrative closure. Nearly 200,000 immigration cases have been put on hold in this way in the past five years alone.

“Far and away, administrative closure was being abused,” said Cheryl David, a former immigration judge who is now a fellow at the Center for Immigration Studies, which advocates for lower levels of immigration.

He says many of those cases should have ended in deportation. “But rather than actually going through that process, the Obama administration simply administratively closed them. And took them off the docket to be forgotten,” he said.

Sessions has chosen to personally review the case of an undocumented immigrant named Reynaldo Castro-Tum who didn’t show up for his removal hearing. The judge wondered whether the man ever got the notice to appear in court and put his deportation proceedings on hold.

In a legal filing in January, Sessions asked whether judges have the authority to order administrative closure and under what circumstances.

Immigration lawyers and judges say there are legitimate reasons to administratively close a case. For instance, some immigrants are waiting for a final decision on visa or green card applications.

There is a backlog for those applications, too. They’re granted by U.S. Citizenship and Immigration Services, which is separate from immigration court. And that can take months, if not years.

Immigration lawyers and judges are worried that undocumented immigrants could be deported in the meantime.

“You know this is not the private sector where you pay extra money and you can get it done in two days,” said Cheryl David, an immigration lawyer in New York.

David represents hundreds of undocumented immigrants who are facing deportation. She often asks judges to put the proceedings on hold.

“It gives our clients some wiggle room to try and move forward on applications,” she said. “These are human beings, they’re not files.”

Immigration lawyers say these changes could affect immigrants across the country.

Brenda DeLeon has applied for a special visa for crime victims who are undocumented. She says her boyfriend beat her up, and she went to the police.

She came to the U.S. illegally from El Salvador in 2015, fleeing gang violence, and settled in North Carolina.

“If I go back, then my life is in danger,” DeLeon said through a translator. “And not only mine, but my children’s lives too.”

For now, a judge has put DeLeon’s deportation case on hold while she waits for an answer on her visa application.

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Get the full audio version from NPR at the above link.

Haste makes waste! Gimmicks to cut corners, deny due process, and cover up the Administration’s own incompetent and politically driven mal-administration of the Immigration Courts is likely to cause an adverse reaction by the “real courts” — the Article III Courts of Appeals — who ultimately have to “sign off” on the railroading of individuals back to potentially deadly situations.

I also have some comments on this article.

In Castro-Tum, on appeal the BIA panel corrected the Immigration Judge’s error in administratively closing the case. Consequently, there was no valid reason for the Attorney General’s “certification” and using the case for a wide ranging inquiry into administrative closing that was almost completely divorced from the facts of Castro-Tum.
I also question Judge Arthur’s unsupported assertion that “Far and away administrative closing was being abused.”
- According to TRAC Immigration, administrative closing of cases as an exercise of “prosecutorial discretion” by the DHS Assistant Chief Counsel accounted for a mere 6.7% of total administrative closings during the four-year period ending in FY 2015.
- In Arlington where I sat, administrative closing by the Assistant Chief Counsel was a very rigorous process that required the respondent to document good conduct, length of residence, family ties, employment, school records, payment of taxes, community involvement, and other equities and contributions to the U.S. With 10 to 11 million so-called “undocumented” individuals in the U.S., removing such individuals, who were actually contributing to their communities, would have been a complete waste of time and limited resources.
- The largest number of administrative closings in Arlington probably resulted from individuals in Immigration Court who:
  - Had been granted DACA status by USCIS;
  - Had been granted TPS by USCIS;
  - Had approved “U” nonimmigrant visas as “victims of crime,” but were waiting for the allocation of a visa number by the USCIS;
  - Had visa petitions or other applications that could ultimately have qualified them for permanent legal immigration pending adjudication by the USCIS.
- Contrary to Judge Arthur’s claim, the foregoing types of cases either had legitimate claims for relief that could only be granted by or with some action by the USCIS, or, as in the case of TPS and DACA, the individuals were not then removable. Administrative closing of such cases was not an “abuse,” but rather eminently reasonable.
- Moreover, individuals whose applications or petitions ultimately were denied by the USCIS, or who violated the terms under which the case had been closed by failing to appear for a scheduled interview or being picked up for a criminal offense were restored to the Immigration Court’s “active docket” upon motion of the DHS.

There are almost 700,000 cases now on the Immigration Courts’ docket — representing many years of work even if there were no new filings and new judges were added. Moreover, the cases are continuing to be filed in a haphazard manner with neither judgement nor restraint by an irresponsible Administration which is allowing DHS Enforcement to “go Gonzo.” To this existing mess, Sessions and Arthur propose adding hundreds of thousands of previously administratively closed cases, most of which shouldn’t have been on the docket in the first place.

So, if they had their way, we’d be up over one million cases in Immigration Court without any transparent, rational plan for adjudicating them fairly and in conformity with due process at any time in the foreseeable future. Sure sounds like fraud, waste, and abuse of the system by Sessions and DHS to me. All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ. We need this reform sooner, rather than later!

PWS

03-30-18

JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!

https://www.themarshallproject.org/2018/01/19/lost-in-court

Julia writes for The Marshall Project:

“. . . .

And so in this gateway city on the Rio Grande [Laredo], inside a building rimmed with barbed wire, past security guards and locked doors, immigration judges on short details started hearing cases in a cramped courtroom that was hastily arranged in March.

But seven months later, the case of Oscar Arnulfo Ramírez, an immigrant from El Salvador, was not going quickly. He was sitting in detention, waiting for a hearing on his asylum claim. And waiting some more.

The court files, his lawyer discovered, showed that Ramírez’s case had been completed and closed two months earlier. Since the case was closed, the court clerk couldn’t schedule a new hearing to get it moving again. In fact, the clerk didn’t even have a record that he was still detained.

“It’s as if he’s non-existent,” his lawyer,, said. “He’s still in a detention center. He’s still costing the government and the American people tax dollars. But there’s no proceeding going on. He’s just sitting there doing completely nothing.”

Ramírez’s case was one of many signs of disarray in the improvised court in Laredo, which emerged during a weeklong visit in late October by a reporter from The Marshall Project and a radio producer from This American Life. Instead of the efficiency the Trump administration sought, the proceedings were often chaotic. Hearing schedules were erratic, case files went missing. Judges were exasperated by confusion and delays. Like Ramírez, detainees were lost in the system for months on end.

For a view of the border crossing in Laredo and the grinding process migrants begin there, check out Kirsten Luce’s photosfrom the gateway on the Rio Grande.

With the intense pressure on the court to finish cases, immigrants who had run from frightening threats in their home countries were deported without having a chance to tell the stories that might have persuaded a judge to let them stay.

. . . .

For Paola Tostado, the lawyer, Ramírez was not the first client to fall through the cracks in Laredo. Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.

Another Salvadoran asylum-seeker she represented, whose case was similarly mislaid, had gone for four months with no hearing and no prospect of having one. Eventually he despaired. When ICE officers presented him with a document agreeing to deportation, without consulting Tostado he had signed it.

“I’ve had situations where we come to an individual client who has been detained over six months and the file is missing,” she said. “It’s not in San Antonio. It’s not in Laredo. So where is it? Is it on the highway?”

In her attempts to free Ramírez, Tostado consulted with the court clerk in San Antonio, with the ICE prosecutors and officers detaining him, but no one could say how to get the case started again.

Then, one day after reporters sat in the courtroom and spoke with Tostado about the case, ICE released him to pursue his case in another court, without explanation.

But by December Tostado had two other asylum-seekers who had been stalled in the system for more than seven months. She finally got the court to schedule hearings for them in the last days of the year.

“I think the bottom line is, there’s no organization in this Laredo court,” Tostado said. “It’s complete chaos and at the end of the day it’s not fair. Because you have clients who say, I just want to go to court. If it’s a no, it’s a no. If it’s a yes, it’s a yes.”

Unlike criminal court, in immigration court people have no right to a lawyer paid by the government. But there was no reliable channel in Laredo for immigrants confined behind walls to connect with low-cost lawyers. Most lawyers worked near the regular courts in the region, at least two hours’ drive away.

Sandra Berrios, another Salvadoran seeking asylum, learned the difference a lawyer could make. She found one only by the sheerest luck. After five months in detention, she was days away from deportation when she was cleaning a hallway in the center, doing a job she had taken to keep busy. A lawyer walked by. Berrios blurted a plea for help.

The lawyer was from a corporate law firm, Jones Day, which happened to be offering free services. Two of its lawyers, Christopher Maynard and Adria Villar, took on her case. They learned that Berrios had been a victim of vicious domestic abuse. A Salvadoran boyfriend who had brought her to the United States in 2009 had turned on her a few years later when he wanted to date other women.

Once he had punched her in the face in a Walmart parking lot, prompting bystanders to call the police. He had choked her, burned her legs with cigarettes, broken her fingers and cut her hands with knives. Berrios had scars to show the judge. She had a phone video she had made when the boyfriend was attacking her and records of calls to the Laredo police.

The lawyers also learned that the boyfriend had returned to El Salvador to avoid arrest, threatening to kill Berrios if he ever saw her there.

She had started a new relationship in Texas with an American citizen who wanted to marry her. But she’d been arrested by the Border Patrol at a highway checkpoint when the two of them were driving back to Laredo from an outing at a Gulf Coast beach.

After Berrios been detained for nine months, at a hearing in July with Maynard arguing her case, a judge canceled her deportation and let her stay. In a later interview, Berrios gave equal parts credit to God and the lawyers. “I would be in El Salvador by this time, already dead,” she said. “The judges before that just wanted to deport me.”

. . . .

We have heard frustration across the board,” said Ashley Tabaddor, a judge from Los Angeles who is the association [NAIJ] president. She and other union officials clarified that their statements did not represent the views of the Justice Department. “We’ve definitely heard from our members,” she said, “where they’ve had to reset hundreds of cases from their home docket to go to detention facilities where the docket was haphazardly scheduled, where the case might not have been ready, where the file has not reached the facility yet.”

Another association official, Lawrence Burman, a judge who normally sits in Arlington, Va., volunteered for a stint in a detention center in the rural Louisiana town of Jena, 220 miles northwest of New Orleans. Four judges were sent, Burman said, but there was only enough work for two.

“So I had a lot of free time, which was pretty useless in Jena, Louisiana,” Burman said. “All of us in that situation felt very bad that we have cases back home that need to be done. But in Jena I didn’t have any of my files.” Once he had studied the cases before him in Jena, Burman said, he was left to “read the newspaper or my email.”

The impact on Burman’s case docket back in Arlington was severe. Dozens of cases he was due to hear during the weeks he was away had to be rescheduled, including some that had been winding through the court and were ready for a final decision. But with the enormous backlog in Arlington, Burman had no openings on his calendar before November 2020.

Immigrants who had already waited years to know whether they could stay in the country now would wait three years more. Such disruptions were reported in other courts, including some of the nation’s largest in Chicago, Miami and Los Angeles.

“Many judges came back feeling that their time was not wisely used,” Judge Tabaddor, the association president, said, “and it was to the detriment of their own docket.”

Justice Department officials say they are pleased with the results of the surge. A department spokesman, Devin O’Malley, did not comment for this story but pointed to congressional testimony by James McHenry, the director of the Executive Office for Immigration Review. “Viewed holistically, the immigration judge mobilization has been a success,” he said, arguing it had a “positive net effect on nationwide caseloads.”

Justice Department officials calculated that judges on border details completed 2700 more cases than they would have if they had remained in home courts. Officials acknowledge that the nationwide caseload continued to rise during last year, reaching 657,000 cases by December. But they noted that the rate of growth had slowed, to .39 percent monthly increase at the end of the year from 3.39 percent monthly when Trump took office.

Judge Tabaddor, the association president, said the comparison was misleading: cases of immigrants in detention, like the ones the surge judges heard, always take priority and go faster than cases of people out on release, she said. Meanwhile, according to records obtained by the National Immigrant Justice Center, as many as 22,000 hearings in judges’ home courts had to be rescheduled in the first three months of the surge alone, compounding backlogs.

. . . .”

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

Read Julia’s complete article at the above link. Always enjoy getting quotes from my former Arlington colleague Judge Lawrence O. (“The Burmanator”) Burman. He tends to “tell it like it is” in the fine and time-honored Arlington tradition of my now retired Arlington colleague Judge Wayne R. Iskra. And, Judge Iskra didn’t even have the “cover” of being an officer of the NAIJ. Certainly beats the “pabulum” served up by the PIO at the “Sessionized” EOIR!

Also, kudos to one of my “former firms” Jones Day, its National Managing Partner Steve Brogan, and the Global Pro Bono Counsel Laura Tuell for opening the Laredo Office exclusively for pro bono immigration representation, As firms like jones Day take the “immigration litigation field,” and give asylum applicants the “A+ representation” they need and deserve, I predict that it’s going to become harder for the Article III U.S. Courts to ignore the legal shortcomings of the Immigration Courts under Sessions.

A brief aside. My friend Laura Tuell was a “Guest Professor” during a session of my Immigration Law & Policy class at Georgetown Law last June. On the final exam, one of my students wrote that Laura had inspired him or her to want a career embodying values like hers! Wow! Talk about making a difference on many levels!And talk about the difference in representing real values as opposed to the legal obfuscation and use of the legal system to inflict wanton cruelty represented by Sessions and his restrictionist ilk.

We also should recognize the amazing dedication and efforts of pro bono and “low bono” lawyers like Paola Tostado, mentioned in Julia’s report. “Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.” What do you think that does to her law practice? As I’ve said before, folks like Paola Tostado, Christopher Maynard, Adria Villar, and Laura Tuell are the “real heroes” of Due Process in the Immigraton Court system.

Compare the real stories of desperate, bona fide asylum seekers and their hard-working dedicated lawyers being “stiffed” and mistreated in the Immigration Court with Sessions’s recent false narrative to EOIR about an asylum system rife with fraud promoted by “dirty attorneys.” Sessions’s obvious biases against migrants, both documented and undocumented, and particularly against Latino asylum seekers on the Southern Border, make him glaringly unqualified to be either our Attorney General or in charge of our U.S. Immigration Court system.

No amount of “creative book-cooking” by EOIR and the DOJ can disguise the human and due process disaster unfolding here. This is exactly what I mean when I refer to “”Aimless Docket Reshuffling” (“ADR”), and it’s continuing to increase the Immigration Court backlogs (now at a stunning 660,000) notwithstanding that there are now more Immigration Judges on duty than there were at the end of the last Administration.

I’ll admit upfront to not being very good at statistics and to being skeptical about what they show us. But, let’s leave the “Wonderful World of EOIR” for a minute and go on over to TRAC for a “reality check” on how “Trumpism” is really working in the Immigration Courts. http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php

On September 30, 2016, near the end of the Obama Administration, the Immigration Court backlog stood at a whopping 516,000! Not good!

But, now let go to Nov. 30, 2017, a period of 14 months later, 10 of these full months under the policies of the Trump Administration. The backlog has mushroomed to a stunning 659,000 cases — a gain of 153,000 in less than two years! And, let’s not forget, that’s with more Immigration Judges on board!

By contrast, during the last two full years of the Obama Administration — September 30, 2014 to September 30, 2016 — the backlog rose from 408,000 to 516,000. Nothing to write home about — 108,000 — but not nearly as bad as the “Trump era” has been to date!

Those who know me, know that I’m no “fan” of the Obama Administration’s stewardship over the U.S. Immigration Courts. Wrongful and highly politicized “prioritization” of recently arrived children, women, and families from the Northern Triangle resulted in “primo ADR” that sent the system into a tailspin that has only gotten worse. And, the glacial two-year cycle for the hiring of new Immigration Judges was totally inexcusable.

But, the incompetence and disdain for true Due Process by the Trump Administration under Sessions is at a whole new level. It’s clearly “Amateur Night at the Bijou” in what is perhaps the nation’s largest Federal Court system. And, disturbingly, nobody except a few of us “Immigration Court Groupies” seems to care.

So, it looks like we’re going to have to stand by and watch while Sessions “implodes” or “explodes” the system. Then, folks might take notice. Because the collapse of the U.S. Immigration Courts is going to take a big chunk of the Article III Federal Judiciary with it.

Why? Because approximately 80% of the administrative review petitions in the U.S. Courts of Appeals are generated by the BIA. That’s over 10% of the total caseload. And, in Circuits like the 9th Circuit, it’s a much higher percentage.

The U.S. Immigration Judges will continue to be treated like “assembly line workers” and due process will be further short-shrifted in the “pedal faster” atmosphere intentionally created by Sessions and McHenry. The BIA, in turn, will be pressured to further “rubber stamp” the results as long as they are removal orders. The U.S. Courts of Appeals, and in some cases the U.S. District Courts, are going to be left to clean up the mess created by Sessions & co.

We need an independent Article I U.S. Immigration Court with competent, unbiased judicial administration focused on insuring individuals’ Due Process now! We’re ignoring the obvious at our country’s peril!

PWS

01-20-18

DISORDER IN THE U.S. IMMIGRATION COURTS: SESSIONS “DECLARES WAR” ON HIS OWN IMMIGRATION JUDGES! — JUDGES’ ASSOCIATION (“NAIJ”) REPORTS MEMBERS REACTING WITH “DISBELIEF, SHOCK, CONFUSION, AND OUTRAGE” TO THE CONDESCENDING “McHENRY MEMO!” — NAIJ DEMANDS BARGAINING ON CASE QUOTAS!

FULL DISCLOSURE: I am a retired member of the National Association of Immigration Judges (“NAIJ”). In that capacity, I received the following e-mail from our President, The Honorable A. Ashley Tabaddor (who is resident in the U.S. Immigration Court in Los Angeles California), acting in her NAIJ capacity. I republish that e-mail below with Judge Tabaddor’s permission.

“Dear NAIJ Members,

We have been hearing much from our members regarding the recent Director’s email, dated January 17, 2018, publishing purported “Case Priorities and Immigration Court Performance Measures.” Many have expressed their disbelief, shock, confusion, and outrage as to the published standards, in light of the severe backlogs in our courts. We share your concerns. NAIJ has demanded to bargain on implementation of “numeric based performance measures on Immigration Judges”, and the Agency had provided assurances to NAIJ that no individual IJ based quotas and deadlines will be imposed until they have fulfilled their obligation under labor law to bargain with us. And under the law, the Agency is prohibited from imposing such standards until all our bargaining rights have been properly exhausted. NAIJ is also fighting any infliction of quotas and deadlines on Immigration Judges through outreach to the public and Congress, and is investigating the possibility of legal action.

In addition, NAIJ is currently evaluating the memo to determine if there has been any breach in law with the issuance of this memo or any further action we can take under labor law with respect to it.

NAIJ is working diligently to fight the implementation of any “numeric based performance measures” on Judges, and ensure that any future standards that may be imposed on Judges or the Immigration Courts are legally defensible, fair, and would not encroach on our independent decision making authority. Please stay tuned for further development.

If you have any questions, feel free to reach out to myself or any of our NAIJ representatives.

The Honorable A. Ashley Tabaddor, President

National Association of Immigration Judges

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.”

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

I’ve already noted the total preposterousness and tone-deafness of setting arbitrary “case completion goals” for a court system that is already working overtime but crumbling under incredible backlogs and outdated procedures and technology.

Make no mistake about it: those backlogs are not because of Judges, immigrants, or immigrants’ attorneys. They are the direct result of: 1) years of mismanagement and continuing improper political meddling by Sessions and his predecessors going back over several Administrations; and 2) an irresponsible lack of restraint and common sense priorities by DHS enforcement that has been encouraged, aided, and abetted by this Administration.

Under the Trump Administration, DHS line enforcement agents have been freed from any semblance of priorities and given essentially carte blanche to arrest anyone they feel like arresting and placing them into an already overwhelmed and crumbling U.S. Immigration Court System. Meanwhile, the Immigration Judges, who are struggling to provide due process, and have been stripped of any meaningful control over their own dockets, are treated like “assembly line workers” subject to “production quotas.” That’s no way to run a Due Process Court System, and it’s showing in some of the incorrect and unfair results that I report on regularly!

We need an independent Article I U.S. Immigration Court, now! But Congress, which can’t perform the basic functions of governance, apparently isn’t interested in cleaning up the mess they created and enabled. So, with the system fast heading for complete collapse, it looks to me like, willing or not, the Article III U.S. Courts will be stuck with effectively placing the U.S. Immigration Courts in “judicial receivership” until some future Congress addresses the situation in a way that insures Constitutional Due Process of law for all.

A very bad day for the U.S. Justice System and for all who care about upholding Due Process under our Constitution.

PWS

01-19-20

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Here’s an article by Tal Kopan @ CNN on the latest memos:

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