National Association of Immigration Judges – Page 15

KILLER “COURTS:” DUE PROCESS TAKES A DIVE, AS TRUMP REGIME’S WHITE NATIONALIST POLICIES SUPPRESS ASYLUM GRANT RATES IN NEW YORK AND OTHER IMMIGRATION “COURTS” — “Oh, Jesus Christ!” Menkin shouted at the lawyers when he learned a reporter had been present for the hearing. “Don’t you people look around the room? What’s the matter with you?” After the judge expressed his alarm, the reporter was ejected with Gloria’s tearful assent, and so the basis for Judge Menkin’s ruling on Gloria’s asylum petition is not known. The outcome is, though: denied, 30 days to appeal.”

https://apple.news/AYWheKLcqSvWk_toIFrDVLg

Paul Moses, Tim Healy in The Daily Beast:

‘ALL RIGHT, STOP’

Here’s Why the Rejection Rate for Asylum Seekers Has Exploded in America’s Largest Immigration Court in NYC

“It’s basically like the same problem with putting quotas on police officers for tickets.”

The rate of asylum petitions denied in New York City’s busy immigration court has shot up about 17 times times faster than in the rest of the country during the Trump administration’s crackdown—and still Ana was there, a round-faced Honduran woman with a black scarf wrapped turban-like over her hair, a look of fright crossing her dark eyes as the judge asked if she faced danger in her home country.

Her eyes darted over to her helper, a Manhattan lighting designer with New Sanctuary Coalition volunteers to offer moral support—she couldn’t find a lawyer to take her case for free. Then Ana turned back to the judge, or rather, to the video screen that beamed him in from Virginia, and whispered to the court interpreter in Spanish: “My spouse and my son were killed.” Tears welled in her eyes as she said a notorious transnational gang had carried out the slaying.

“Yes we were receiving threats from them,” she added. And that was why, months before her husband and son were slain, she and her 5-year-old daughter had come “through the river,” entering the United States near Piedras Negras, Mexico.

After ruling that she was deportable, the judge gave Ana—The Daily Beast is withholding her real name because of the danger she faces in Honduras—three months to submit a claim for asylum, a possible defense against her removal. “You should start working on that,” the judge told her. As she left the courtroom, Ana hugged the volunteer who’d accompanied her, Joan Racho-Jansen.

New York’s immigration court has long been the asylum capital; it has made two out of every five of the nation’s grants since 2001, while handling a quarter of the caseload. With approval of 55 percent of the petitions in the fiscal year ended Sept. 30, it still grants a greater percentage of asylum requests than any other courts except San Francisco and Guam.

But New York’s golden door is slamming shut for far more asylum seekers than in the past, especially for women like Ana.

The asylum denial rate in the New York City immigration court rose from 15 percent in fiscal year 2016, the last full year of the Obama administration, to 44 percent in fiscal year 2019, which ended Sept. 30. The rest of the country, excluding New York, has been relatively stable, with denials going from 69 percent to 74 percent. That is, the rate of denials in the rest of the country increased by one-ninth, but in New York they almost trebled.

There are other courts where the rate of denials has shot up sharply over the same period: Newark, New Jersey (168 percent); Boston (147 percent); Philadelphia (118 percent). But because of the volume of its caseload, what’s happening in New York is driving the national trend against asylum. For now, in sheer numbers, New York judges still granted more asylum requests over the last year than those in San Francisco, Los Angeles, and Arlington, Virginia, the next three largest courts, combined.

An analysis of federal data compiled by the Transactional Records Access Clearinghouse at Syracuse University and interviews with former immigration judges, lawyers, immigrant advocates and experts finds multiple reasons for the sharp shift in the nation’s largest immigration court as compared to the rest of the country:

—Many more migrants are coming to the New York court from Mexico and the “Northern Triangle” of El Salvador, Honduras, and Guatemala, and the judges have been far more likely to deny them asylum than in the past: from two out of five cases in the 2016 fiscal year to four out of five cases in the 2019 fiscal year.

—Many veteran New York judges retired, and most of the replacements have a prosecutorial, military, or immigration enforcement background. In the past, appointments were more mixed between former prosecutors and immigrant defenders. Immigration judges are appointed by the U.S. attorney general and work for the Justice Department, not the federal court system.

—All the judges are under heavier pressure from their Justice Department superiors to process cases more quickly, which gives asylum applicants little time to gather witnesses and supporting documents such as police reports. New judges, who are on two years of probation, are under particular pressure because numerical “benchmarks” for completing cases are a critical factor in employee evaluations.

“You have a huge number of new hires in New York,” said Jeffrey Chase, a former New York immigration judge. “The new hires are mostly being chosen because they were former prosecutors. They’re normally of the background that this administration thinks will be statistically more likely to deny cases.”

Judge Jeffrey L. Menkin, who presided in Ana’s case via video hookup, began hearing cases in March. He is based in Falls Church, Virginia, the home of the Executive Office of Immigration Review, the Justice Department agency that runs the immigration courts. He’d been a Justice Department lawyer since 1991, including the previous 12 years as senior counsel for national security for the Office of Immigration Litigation.

Menkin can see only a portion of his New York courtroom on his video feed and as a result, he didn’t realize a Daily Beast reporter was present to watch him conduct an asylum hearing for a Guatemalan woman—we’ll call her Gloria—and her three young children, who were not present.

Immigration and Customs Enforcement took Gloria into custody at the Mexican border in March. Released on bond, she made her way to New York and had an initial immigration court hearing on June 26, one of many cases on a crowded master calendar. She was scheduled for an individual hearing four months later.

At the hearing scheduled three months later on the merits of her case, she decided to present an asylum defense to deportation. Her lawyer asked for a continuance—that is, a new hearing date—while his client waited to receive documentation she’d already requested from Guatemala. The papers were on the way, Gloria said.

Judges in such cases—those that the Department of Homeland Security designates as “family unit”—have been directed to complete them within a year, which is about 15 months faster than the average case resolved for the year ending Sept. 30. Down the hall, other types of cases were being scheduled for 2023. Menkin called the lawyer’s unexpected request for a continuance “nonsense” and “malarkey” and asked: “Are you and your client taking this case seriously?”

The judge then asked if Gloria was requesting a case-closing “voluntary departure,” a return to her homeland that would leave open the option she could apply again to enter the United States.

But Gloria had no intention of going back to Guatemala voluntarily. So Menkin looked to the government’s lawyer: “DHS, do you want to jump into this cesspool?” The government lawyer objected to granting what would have been the first continuance in Gloria’s case.

And so Menkin refused to re-schedule, telling Gloria and her lawyer that they had to go ahead right then if they wanted to present an asylum defense. Gloria began testifying about threats and beatings that stretched back a decade, beginning after a failed romance with a man who was influential in local politics. Details are being withheld to protect her identity.

She finally fled, she said, when extortionists threatened to hurt her children if she didn’t make monthly payoffs that were beyond her means. When she observed that she and her children were being followed, she decided to leave. After she said she had gone to police three times, Menkin took over the questioning.

“Are you familiar with the contents of your own asylum application?” he asked, pointedly.

“No,” Gloria responded.

Menkin said her asylum application stated she had gone to police once, rather than three times, as she’d just testified. Gloria explained that she had called in the information for the application to an assistant in her lawyer’s office, and didn’t know why it was taken down wrong.

When her lawyer tried to explain, Menkin stopped him, raising his voice: “I did not ask you anything.”

Later, Menkin came back to the discrepancy he’d picked up on. “I don’t know why,” Gloria responded.

“All right, STOP,” Menkin told the woman, who cried through much of the two-hour hearing. Again, he sought to terminate the case, asking the DHS lawyer, “Do I have grounds to dismiss this now?”

“I’m trying to be fair,” she replied.

“We’re all trying to be fair,” Menkin said.

And to be fair, it should be noted that since October 2018, the Executive Office for Immigration Review (EOIR) has been evaluating judges’ performance based on the numbers for case completions, timeliness of decisions and the percent of rulings upheld on appeal. “In essence, immigration judges are in the untenable position of being both sworn to uphold judicial standards of impartiality and fairness while being subject to what appears to be politically-motivated performance standards,” according to an American Bar Association report that assailed what it said were unprecedented “production quotas” for judges.

The pressure is especially strong on judges who, like Menkin, are new hires. They are probationary employees for two years.

Denise Slavin, a former president of the National Association of Immigration Judges who retired from the bench in April after 24 years of service, said the judges’ union had tried to talk EOIR Director James McHenry out of his quotas. “It’s basically like the same problem with putting quotas on police officers for tickets,” she said. “It suggests bias and skews the system to a certain extent.” Told of the details of Gloria’s hearing, she added, “That’s a prime example of the pressure these quotas have on cases… the pressure to get it done right away.”

Kathryn Mattingly, spokeswoman for the Executive Office of Immigration Review, said by email that she couldn’t comment on individual cases, but that all cases are handled on their individual merits. “Each asylum case is unique, with its own set of facts, evidentiary factors, and circumstances,” she wrote. “Asylum cases typically include complex legal and factual issues.” She also said that Menkin could not comment: “Immigration judges do not give interviews.”

It’s true that each asylum case has its own complex factors. But a 2016 study by the U.S. Government Accountability Office took many of them into account—the asylum seeker’s nationality, language, legal representation, detention status, number of dependents—and determined that there are big differences in how the same “representative applicant” will be treated from one court and one judge to another.

“We saw that grant rates varies very significantly across courts and also across judges,” said Rebecca Gambler, director of the GAO’s Homeland Security and Justice team.

Some experts say that changes in the way the Justice Department has told immigration judges to interpret the law may be having an outsize effect in New York.

Starting with Jeff Sessions, the Trump administration’s attorneys general have used their authority over immigration courts to narrow the judges’ discretion to grant asylum or, in their view, to clarify existing law.

Asylum can be granted to those facing persecution because of “race, religion, nationality, membership in a particular social group, or political opinion.” In June 2018, Sessions overturned a precedent that many judges in New York had been using to find that victims of domestic assaults or gang violence could be members of a “particular social group,” especially when police were complicit or helpless. Justice’s ruling in the Matter of A-B-, a Salvadoran woman, seems to have had a particular impact in New York.

“Where there’s a question about a ‘particular social group,’ judges in other parts of the country may have taken a narrower view” already, said Lindsay Nash, a professor at Cardozo Law School in New York and co-director of the Kathryn O. Greenberg Immigration Justice Clinic.

Mauricio Noroña, a clinical teaching fellow at the same clinic, said new judges would be especially careful to follow the lead in the attorney general’s ruling.

Andrew Arthur, a fellow at the Center for Immigration Studies in Washington and a former immigration judge in York, Pennsylvania, said Sessions’ decision in the Matter of A-B- would particularly affect Central American applicants, whose numbers have increased sharply in New York’s court. Data show that just 8.5 percent of the New York asylum cases were from Central America or Mexico in 2016; in the past year, 32.6 percent were.

Arthur said a larger portion of the New York court’s asylum rulings in the past were for Chinese immigrants, whose arguments for refuge—persecution because of political dissent, religious belief, or the one-child policy—are fairly straightforward under U.S. asylum law. Although the number of Chinese applicants is still increasing, they have fallen as a portion of the New York caseload from 60 percent in 2016 to 28 percent in the past year.

Sessions’ determination against A-B- is being challenged, and lawyers have been exploring other paths to asylum in the meantime. “It’s extremely complicated to prepare cases in this climate of changing law,” said Swapna Reddy, co-executive director of the Asylum Seeker Advocacy Project. But, she said, “That’s not to say advocates and judges can’t get back to that [higher] grant rate.”

Gloria continued to cry; the DHS lawyer asked that she be given a tissue. The government lawyer’s cross-examination was comparatively gentle, but she questioned why Gloria didn’t move elsewhere within Guatemala and seek police protection.

“He would find out before I even arrived at the police station,” she said of the man she feared. And, she added, “They’re always going to investigate and as for always being on the run, that’s no life for my kids.”

In closing arguments, Gloria’s lawyer said his client had testified credibly and that she legitimately feared her tormentor’s influence. The DHS lawyer did not question Gloria’s credibility, but she said Gloria’s problem was personal, not political—that she could have moved to parts of Guatemala that were beyond the reach of the man’s political influence.

Judge Menkin then declared a 20-minute recess so that he could compose his decision. In the interim, the lawyers discovered that a man sitting in one corner of the small courtroom was a reporter and, when the judge returned to the bench to rule, so informed him.

Immigration court hearings are generally open to the public. There are special rules for asylum cases, however. The court’s practice manual says they “are open to the public unless the respondent expressly requests that they be closed.”

“Oh, Jesus Christ!” Menkin shouted at the lawyers when he learned a reporter had been present for the hearing. “Don’t you people look around the room? What’s the matter with you?”

After the judge expressed his alarm, the reporter was ejected with Gloria’s tearful assent, and so the basis for Judge Menkin’s ruling on Gloria’s asylum petition is not known. The outcome is, though: denied, 30 days to appeal.

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Sound like Due Process to you? Only if it’s not your life at stake! Wonder how Judge Menkin and others like him would feel if they and their families were subjected to the same type of “judicial” procedure.

In viewing Judge Menkin’s ridiculous denial of a routine continuance, it’s important to understand that the precedent decisions binding Immigration Judges have intentionally over-emphasized the importance of documenting claims – even though documentation is often unavailable or time-consuming to obtain, have properly translated, and serve on the Immigration Judge and ICE in advance of the hearing. Therefore, denying a first continuance for needed preparation is tantamount to “giving the finger” to Due Process!

“Women in Honduras” has been found to be a valid “particular social group” by a number of Immigration Judgers elsewhere. Given the corruption of the Government of Honduras, the political influence of Ana’s tormentor, and the high rate of femicide, it’s highly unlikely that Ana would receive government protection.

The ICE attorney made an absurdist argument that Ana could “safely resettle” elsewhere in Honduras. Honduras is a small country, about the size of Virginia. It has an astronomical murder rate, highly corrupt police, snd almost no viable infrastructure, all important considerations in a legitimate inquiry into relocation. Under these conditions, there is no way that Ana had a “reasonably available internal relocation alternative” in Honduras as described in Federal Regulations. A “real” judge might have grilled ICE counsel about her legally and factually untenable position. But, not Menkin. He apparently had already made up his mind to deny regardless of the law or facts.

In short, before a “fair and impartial” judge with expertise in asylum law this could and should have been an “easy grant” of asylum, even without the additional documentation that could have been presented if the judge had granted a continuance. Instead, it was “orbited” off into a dysfunctional administrative appellate system where results are akin to “Refugee Roulette” highly dependent on the “panel” or individual “Appellate Immigration Judge” to which the case is assigned at the BIA. In this respect, it’s also noteworthy that Barr recently appointed six Immigration Judges with some of the highest asylum denial rates in the country to the BIA. Some “fair and impartial” judiciary!

It also appears that Menkin belatedly and improperly “duressed” Ana into agreeing to a “closed” hearing. Most of the time, once asylum applicants’ attorneys carefully explain to them that public observation and exposure of this “rigged” process might be the only way of getting pressure to change it, they readily agree to have the press present. Also, generally everybody tends to perform better and more professionally when the press or other observers are present (obviously, however, in this particular case, not so much).

First the Trump Regime artificially suppresses asylum grant rates with skewed hiring, improper interpretations of the law, unethical quotas, and pressure on the “judges” to crank out more removal orders. Then, they use the bogus statistics generated by the intentionally flawed and biased process to make a case that most of the asylum claims are non-meritorious.

Notably, even under this clearly biased, overtly anti-asylum procedure, the majority of asylum claims that get decided “on the merits” in New York are still granted. Imagine what the grant rate would be in a truly fair judicial system that properly applied asylum law and the Constitution: 70%, 80%, 90%? We’ll never know, because the regime fears the results of a fair asylum process that fully complies with Due Process: The “dirty little secret” the regime doesn’t want you to know! Talk about “fraud, waste, and abuse!” Something to remember the next time you hear “Cooch Cooch,” “Markie,” Albence, and other Trump sycophants at DHS and DOJ falsely claim that the overwhelming number of asylum applications are without merit.

Judges likes Menkin might want to remember that the truth will eventually “out’ even if too late to save the life of Ana and others like her. When that happens, those judges who put expediency, their jobs, and homage to the Trump Regime’s White Nationalist agenda before the law, Due Process, and human lives will find their “legacies” tarnished forever.

Many thanks to Judge Jeffrey S. Chase and Judge Denise Slavin of our Roundtable of Former Immigration Judges for their usual incisive comments. And a shout out to journalists like Moses and Healy who continue to shed light on the outrageous abuses taking place every day in our Immigration “Courts!”

Ultimately, legal and moral responsibility is on Congress, the Article III Courts, and the voters for allowing this clearly unconstitutional, deadly mess to continue to unfold in the Immigration “Courts” every day. That’s why it’s critical that the New Due Process Army “Constantly Confront Complicit Courts 4 Change.”

Due Process Forever; Complicit (& Corrupt) Courts Never!

PWS

12-03-19

DAHLIA LITHWICK @ SLATE & THE REST OF US SHOULD BE THANKFUL FOR THE NEW DUE PROCESS ARMY — No Subpoenas, No Fat Book Contracts, No “Anonymous” Editorials, Shoestring Budget – But, They’re Out There Every Day Throughout Our Nation & Across Borders, Working Tirelessly & Thanklessly For Due Process & Against The Legal Nihilism Of The Trump Regime & The Complicity Of The Courts That Lithwick Fears!

https://apple.news/AapOCnRi6R9mdcAZfT0s-FA

Dahlia writes @ Slate:

Jurisprudence

America’s Descent into Legal Nihilism

The president would always like to be the president. And he’s bending the law to his will to do so.

November 27 2019 4:41 PM

It is a Thanksgiving tradition to spend time thinking about what one is thankful for; a healthy practice that reminds us to see the world in a positive light. Gratitude is good for us and we should not take it for granted. This year, though, I feel compelled to spend at least a bit of time focusing not only what I am thankful for, but on what I am freaking out about. And the thing that concerns me greatly these days is simple: The president seems to have no intention of leaving office and we seem to have no meaningful plan to address that.

It’s not just that this president benefitted from Russian interference in the 2016 election (and in fact solicited it publicly, recall “Russia if you’re listening”). It’s not just that he denies—in the face of the incontrovertible conclusions of his own intelligence agencies and the Senate intelligence committee—that Russia played any part in his 2016 electoral victory. It’s that he still believes a demonstrable fraud about illegal voting and Ukrainian election interferenceand deep state plots to oust him and has demanded his cabinet officers repeat it. Moreover he has demanded that his Attorney General investigate it. His insistence that everyone around him participate in his version of reality allows him to repeat the material falsehood that he won by a landslide in 2016, and that there will be more attempts to suppress his victory in 2020.

The president has also taken the legal position that he cannot be indicted while in office; a position rooted in a memorandum that originated in the Office of Legal Counsel in 1973, and was reaffirmed in 2000, that may or may not be correct, as legal experts are thoroughly conflicted. Trump and his Justice Department have extrapolated from that memorandum that he also cannot even be investigated while in office. In court proceedings defending that unprecedented position, his attorney has in fact stated that even if he shot someone on Fifth Avenue while in office, he could not be subject to criminal processes, because he is the president and presidents are immune from such things even if they themselves commit murder. Under this untested legal theory, the president is incapable of criminal conduct, and his lawyers, and even some of his recently seated judges, when pressed, claim that the only proper channel through which to investigate a president’s criminal conduct would be via impeachment.

Happily, an impeachment process has begun, which is, in its way, something to be thankful for. And yet the Trump White House refuses to participate, insisting that the entire process is unconstitutional. Not only does the President claim that the investigation is impermissible, he has also issued a blanket refusal for anyone in his administration, or who has ever been in his administration, to cooperate with the impeachment inquiry. Even as a federal judge rejected that position outright on Monday evening, former White House Counsel Don McGahn, joined by the Department of Justice, have appealed that ruling, which might have unblocked the obstruction of several vital impeachment witnesses. John Bolton, who is very busy tweeting and pitching a book, will also decline to testify, although the district court order expressly rejects his reasoning. Bolton’s refusal to testify, even when offered the cover of a judicial order, meaning that he could claim to testify reluctantly, and even if testifying in an impeachment inquiry could conceivably mean nothing more than refusing to answer every single question under claims of executive privilege, suggests that the White House’s efforts to stymie the only means of investigating a president that it says it would permit, will prevail.

The growing hysteria about imaginary past Ukranian election interference, a ludicrous impeachment defense, will be used to deflect from the emphatically certain future Russian election interference (as well as interference from other nations who reasonably want in on the fun). The Mitch McConnell-dominated Senate has declined to do anything to protect against that certainty and instead is building a judiciary that will permit it. Please consider, as well, that the geniuses among us who claim that we should ignore Trump’s effort to conscript Ukraine into working on his 2020 presidential run, and just defeat him roundly at the polls, are forgetting that Donald Trump’s entire raison d’etre, his past and future destiny, is to manipulate presidential elections in ways that preclude his round defeat at the polls. That is why he worked—as we now know—with Roger Stone to distort the outcome of the 2016 elections, it is also why he withheld almost $400 million in appropriated aid to Ukraine this summer. Insisting that we will let the voters decide this matter in a free and fair election in 2020 has to be the Lucy-football-est move ever, in a three-year festival of Lucy-footballing.

There’s more. Donald Trump does not necessarily intend to leave office even if he loses the 2020 presidential election. He jokes about it constantly. He never agreed that he would concede if he lost to Hillary Clinton in 2016, remember. His claims about election and voter fraud are not just ego-food about his popular vote numbers in 2016, but also set up for 2020. The anonymous author of a new Trump book says as much. It’s taken a long time to even consider this possibility openly. And just as we soothed ourselves that the military would be the keystone to his removal if it came right down to that, the president has redefined the US military as an appendage of his own desires. At his Florida rally on Tuesday night, Trump dismissed any resistance to his actions in pardoning servicemembers accused of war crimes as emanating from “the deep state.” He reportedly wants these new military heroes he is elevating to join him on the campaign trail. And just as he has falsely dismissed honorable career professionals in the foreign service as “deep staters,” and “Never Trumpers” he will now refuse to hear from anyone in the military who argues for internal honor codes and discipline as the same.

Don McGahn thinks someone else is responsible for taking care of all this, as, evidently, does John Bolton. Robert Mueller made the same mistake last spring, when he decided it was Congress’s responsibility to act on what he had found. And so, to be frank, did most of the impeachment witnesses, many of whom only came forward to corroborate the whistleblower’s anonymous report, and some of whom only came forward only pursuant to a subpoena. Everyone seems to assume vast quantities of courage in other people that they cannot seem to find in themselves. Yet somehow, our greatest worry in the coming days will be how to remain civil with one another over a large bird and its cute little cranberry accessories. The president believes that he is above the law and has foreclosed any attempt to prove otherwise. The president seems unable to conceive of himself losing an election. The president is counting on all of us to merely hope that something somewhere gets done about all this stuff at some point, but to never actually do anything ourselves beyond passing the stuffing around. This year, what I am most thankful for is the people who are trying to do that something themselves.

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I’m most thankful for all of my wonderful, dedicated colleagues in our Roundtable of Former Immigration Judges, an important “brigade” of the New Due Process Army. The NDPA does more than “merely hope that something somewhere gets done about all this stuff at some point.”

We’re out there leading “the Resistance” (yes, Billy Barr, not everyone is a sleazy sycophant like you) and fighting the forces of White Nationalism, xenophobia, racism, and “legal nihilism” every day in every possible way! Thanks for all you do my friends and colleagues for America, American justice, and to see that the most vulnerable among us get the rights to which they are legally entitled but which are being denied by a fundamentally dangerous and dishonest regime assisted by complicit courts.

Due Process Forever; Legal Nihilism & Complicit Courts Never!

Happy Thanksgiving,

PWS

11-28-19

THREE THANKSGIVING CHEERS FOR IMMIGRATION JUDGE JULIE NELSON (SF) & APPELLATE IMMIGRATION JUDGE ELLEN LIEBOWITZ (BIA) — Doing Justice, Granting Asylum, Saving Lives In The Age Of Trump!

My colleague Judge Jeffrey Chase of our Roundtable of Former Immigration Judges reports some good news:

Also, for those of you who subscribe to Ben Winograd’s index of unpublished BIA Decisions, today’s update includes an unpublished decision dated Nov. 6, 2019, Matter of A-C-A-A- (single BM Ellen Liebowitz), affirming the IJ’s grant of asylum in a domestic violence case based on her cognizable PSG of “Salvadoran females.” The written decision of the IJ, Julie L. Nelson in SF, is also included.

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Thanks to those judges like Judge Nelson and Judge Liebowitz who are continuing to stand up for the rights of asylum seekers “post-A-B-.”

And, many thanks to Jeffrey & Ben for passing this good news along and for all they do for Due Process every day!

What if rather than the “A-B- atrocity” made precedent by unethical White Nationalist Jeff Sessions, we had an honest, independent Immigration Court system that encouraged fair and impartial adjudications and implemented asylum laws generously, as intended (see, e.g., INS v. Cardoza-Fonseca) by publishing precedent decisions like this recognizing the right to protection?

BIA precedents on asylum have intentionally been constructed in a negative manner, showing judges how to deny, rather than grant, protection and encouraging them to take a skewed anti-asylum view of the law. Even worse, bogus, unethical, legally incorrect “Attorney General precedents” are uniformly anti-asylum; the applicant never wins.

Some judges, like Judge Nelson and Judge Leibovitz, take their oaths of office seriously. But, too many others “go along to get along” with the unlawful and unethical “anti-asylum program” pushed by the White Nationalist Trump Regime.

Indeed, even during my tenure as an Immigration Judge, I remember being required to attend asylum “training” sessions (in years when we even had training) where litigating attorneys from the Office of Immigration Litigation basically made a presentation that should have been entitled “How to Deny Potentially Valid Asylum Claims And Have Them Stand Up On Judicial Review.”

It’s also past time for the Supremes and the Circuit Courts of Appeals to get their collective heads out of the clouds, start paying attention, begin doing their jobs and strongly rejecting “disingenuous deference” to bogus, illegal, unethical “precedents” rendered by politically biased enforcement hacks like Sessions and Barr who have unethically usurped the role of quasi-judicial adjudicator for which they are so clearly and spectacularly unqualified under the Due Process Clause of the Fifth Amendment. It’s nothing short of “judicial fraud” by the Article IIIs! Constantly Confront Complicit Courts 4 Change!

With a more honest and legally correct favorable precedents on asylum, many more cases could be documented and granted at the Asylum Office and Immigration Court levels. The DHS would be discouraged from wasting court time by opposing meritorious applications. The backlog would start going down. There would be fewer appeals. Justice would be served. Worthy lives would be saved. DHS could stop harassing asylum seekers and start enforcing the laws in a fair and reasonable manner. America would lead the way in implementing humanitarian laws, and we would become a better country for it.

Help the New Due Process Army fight for a better, more just, future for America and the world.

Due Process Forever!

Happy Thanksgiving.

PWS

11-28-19

SURPRISE (NOT): Many Of Us Already Knew That CBP Acting Commish Mark Morgan Is Sleazy, Cruel, Immoral, Unethical, & Not Very Bright — Now, It’s Confirmed By The DOJ’s Inspector General — That’s Why He’s A Perfect Fit For The Trump Regime’s Immigration Kakistocracy!

Tal Kopan reports for the SF Chronicle:

Exclusive: Trump’s top border official broke FBI rules to fund happy hours

By Tal Kopan

WASHINGTON — President Trump’s top border official broke federal ethics rules in a previous job by seeking sponsors to buy alcohol and fancy food for FBI happy hours, according to a watchdog report exclusively obtained by The Chronicle.

Mark Morgan, acting commissioner of the Customs and Border Protection agency, continued asking the outside entities to pay for the social events even after being warned it was against federal rules, the Justice Department’s inspector general found.

The previously unreported finding raises questions about the Trump administration’s vetting process for top officials. Although Morgan’s role is typically subject to Senate confirmation, Trump has not nominated him for the job. That has circumvented the traditional review by the Senate — leaving it unclear whether the ethical lapse was ever known to the administration.

Customs and Border Protection and Morgan declined to comment. The White House did not respond to a request for comment.

The violations occurred when Morgan was working at the FBI in 2015 as deputy assistant director of the training division, according to the inspector general’s report. Midway through the investigation in the summer of 2016, Morgan retired from the FBI and was named under then-President Barack Obama to head the Border Patrol. He declined to cooperate with the probe after that, the report said.

More: https://www.sfchronicle.com/politics/article/Exclusive-Trump-s-top-border-official-broke-14864340.php#

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Let’s see. Morgan is the racist charlatan who claimed that he could identify a future gang member just by “looking in their eyes.” He was also an enthusiastic supporter of Trump’s threatened (but never fully implemented) “reign of terror” directed against families in ethnic communities. And, of course, as acting CBP Honcho, he encourages and presides over parts of the “New American Gulag,” “Let ‘Em Die in Mexico,” and other human rights violations every day.

Plus, Morgan is as dim as he is evil if he considers government ethics advice to be “mere suggestions.” But, of course, when funding of a TGIF is on the line, why not “push the envelope.” He does exhibit the arrogance and disregard for the rules that apply to others that is a hallmark of the Trump Regime’s Kakistocracy.

However, it’s also significant that this information was available when Obama appointed Morgan Border Patrol Chief. Lots of today’s gross abuses by the Trump Regime have their roots in the Obama Administration’s overall poor, often uninformed, and sometimes negligent approach to immigration issues.

Travesties like “family detention,” “insider-only” hiring at the Immigration Courts and the BIA, absolutist positions on indefinite detention, defense of “toddlers representing themselves” in Immigration Court, and use of “Aimless Docket Reshuffling” at the Immigration Courts in support of inappropriate and unethical “enforcement goals” all helped create unnecessary disorder and inhumanity in the already poorly functioning system.

Obama had a golden chance both to resolve Dreamers and create an Article I Immigration Court at the beginning of his Administration with badly needed, straightforward statutory reforms. Instead, by putting all of his attention on healthcare, to the exclusion of other pressing humanitarian problems, he more or less insured the later “weaponization” of the Immigration Courts, the creation and expansion of the “New American Gulag,” and holding “Dreamers” hostage.

If Obama had taken bold action in 2009, many of the “original Dreamers” would be fully integrated into our society and on their way to citizenship and full participation in our political process by now. Instead, they are being “hung out to dry” by Trump, the GOP, and likely the Supremes. A generation of American youth is being denied the opportunity to contribute and achieve their full potential in the United States.

And, think of how a “real” independent Immigration Court system, with a diverse judiciary with true immigration, human rights, and due process expertise, might have dealt with Trump’s consistent legal overreach on immigration and asylum issues. Indeed, while the Immigration Court backlog might not have been eliminated by an Article I Court, I’ll be it would be considerably less than it is now with an independent court where judges, not enforcement-driven bureaucrats, are in charge of managing their own dockets.

Obviously, we can’t change the past. But, we certainly can avoid repeating its mistakes in the future. Something to consider when looking at Democratic Presidential contenders.

PWS

11-27-19

MALICIOUS INCOMPETENCE: SESSIONS & BARR ERADICATED DUE PROCESS WHILE DOUBLING THE IMMIGRATION COURT BACKLOG: “[S]uch backlogs result when ‘the government focuses concern on immigrants and puts enforcement ahead of due process and civil rights.'” – Complicit Article III Appellate Courts Are Likely To End Up With The Absolute Disaster They Enabled!

https://apple.news/AbprF_RZWSBmtsn5WT35I_w

By DANAE KING, THE COLUMBUS DISPATCH

Immigration court backlog has nearly doubled under Trump

November 25, 2019 05:00 PM EST

The nation’s backlog of active immigration court cases has surpassed the 1 million mark and has nearly doubled since President Donald Trump took office, a new analysis shows. In Ohio, 12,851 cases are pending in Cleveland’s immigration court, which includes Columbus-area cases. That’s up from 3,295 in 2009.

While most people might look a few weeks into the future when scheduling appointments for work, Amy Bittner has put court dates on her calendar for 2022.

The Columbus-based immigration lawyer already knows she’ll have to make the 280-mile round trip to Cleveland to represent a client at a hearing in three years.

“The backlog is a victim of this administration’s priorities. There did not used to be this backlog,” Bittner said.

Nationwide, the backlog has almost doubled, from 542,411 pending cases when President Donald Trump took office in January 2017 to just over 1 million as of Sept. 30, according to an October report by TRAC, a Syracuse Universityclearinghouse that gathers and analyzes immigration data from government agencies.

In Ohio, 12,851 cases are pending in Cleveland Immigration Court, the state’s only such court. That is up significantly from 3,295 in 2009. It’s also double the 6,184 in 2016.

Hearings are scheduled in the Cleveland court through Dec. 30, 2022.

Trump administration policies have not helped temper the rise in the country’s immigration court backlog, the TRAC report says.

Austin Kocher, a faculty fellow at TRAC and an Ohio State alumnus , said such backlogs result when “the government focuses concern on immigrants and puts enforcement ahead of due process and civil rights.”

“Very little resources actually go to the immigration court system and judges” compared with enforcement efforts, Kocher said.

Although the judges in northeastern Ohio stay busy, the backlog at Cleveland’s immigration court isn’t the worst in the country. In areas such as New York, Chicago and Philadelphia, immigrants are waiting an average of 1,450 days, or just under four years, to see a judge.

Part of the reason for the backlog, TRAC says, is that then-U.S. Attorney General Jeff Sessions in May 2018 ordered the nation’s immigration judges to end their practice of removing cases from their dockets without issuing decisions. That resulted in formerly closed cases being reopened, according to TRAC.

“The decision to reopen previously closed cases has single-handedly exacerbated the immigration court crisis, yet it has not received sufficient attention,” the TRAC report states. “This single policy decision has caused a much greater increase in the court’s backlog than have all currently pending cases from families and individuals arrested along the southwest border seeking asylum.”

Others blamed the delays in part on one of Trump’s earliest executive orders, from January 2017, when he made every immigrant who was in the country illegally a priority for deportation. The norm had been to prioritize those who had committed crimes.

“It is a senseless waste of taxpayer money to attempt to remove people who are not criminals and who are well-integrated into our community,” Bittner, the Columbus immigration lawyer, told The Dispatch in an email.

She said U.S. Immigration and Customs Enforcement should close deportation cases involving long-term U.S. residents who are not dangerous.

The Executive Office for Immigration Review, the Department of Justicebranch that supervises the federal immigration court system, did not respond to requests by The Dispatch for comment.

The backlog has grown despite the Trump administration having given the immigration courts “the greatest amount of resources,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, a union.

The nation has 442 immigration judges, according to TRAC. Although about 220 judges have been hired in the past three years, about 100 others have left, Tabaddor said. She said that many of those who have left have expressed feeling like the Trump administration doesn’t allow them to do their jobs properly while adding quotas and micromanaging their work.

Each judge has about 2,000 cases, according to TRAC.

In 2016, when Cleveland’s immigration court had three judges, Bittner went to the court only twice. Now it has six judges, and she goes more than once a month.

Hiring more judges hasn’t fixed the backlog, Bittner said.

“It is very frustrating because justice delayed is justice denied, and while foreign nationals wait years for the adjudication of their cases, they are putting down roots here and having families, which makes removal from the United States even crueler if their case is ultimately denied,” Bittner wrote in the email.

She said some of her clients are grateful for the wait because they have more time to build a life here. Others, however, are frustrated, Bittner said, because they feel that they are constantly in limbo, and once they’ve built a life, it could all come crashing down when their day in court finally arrives.

A few of her clients who had waited years to make their asylum case in the U.S. court left for Canada instead, hoping things would go more smoothly up north.

“It just seems to be getting worse,” Bittner said.

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

Actually, this article significantly understates the true scope of the backlog. Because, as noted in the article, in Castro-Tum, Sessions unethically, mindlessly, and unlawfully created a situation that, if not halted by the Congress or the Appellate Courts (note the 4^th Circuit Court of Appeals has “just said no” to Session’s bogus ruling), will require that over 300,000 low priority, properly “administratively closed” cases be restored to the docket. They vast majority of these are (absurdly) themselves backlogged, “awaiting re-docketing” (more than a clerical process in the antiquated, non-automated, paper heavy Immigration Courts). That makes the total backlog well over 1.4 million and still growing every day.” “Aimless Docket Reshuffling” at its worst!

And, because of the almost guaranteed legal and quality control problems with the Regime’s “cutting corners to deny due process” approach, many of these will end up in the Circuit Courts of Appeals in a condition that requires “return to sender.”

It doesn’t take a legal scholar or much of a judge to recognize that today’s Immigration “Courts” being run by biased, maliciously incompetent DOJ prosecutors don’t satisfy the basic requirement for “fair and impartial adjudications” to conform to Fifth Amendment Due Process. Moreover, the incompetent, “bad faith” mis-management of the Immigration Courts basically “throws garbage” into the higher courts and precludes effective, timely judicial review.

The solution: recognize that this travesty is unconstitutional and require a court-approved “special master” to run the Immigration Courts in place of the DOJ until Congress fixes the glaring Due Process and court management problems with an independent Article I U.S. Immigration Court as recommended by almost all experts!

We also must remember the DOJ’s & EOIR’s concerted White Nationalist attacks on foreign nationals and their legal and Due Process rights in the Immigration Courts is also a vicious, unprovoked assault on the courageous attorneys representing the most vulnerable among us and trying, against the odds, to make the system function for everyone’s good. By failing to aid and support “officers of the court” in this dire situation, the Federal Judiciary basically undermines our entire justice system and brings it into disrepute!

Constantly Confront Complicit Courts 4 Change!

Due Process Forever; Complicit Courts Never!

PWS

11-26-19

“JUDICIAL” FARCE: In 1983, The Reagan Administration Created EOIR To Enhance Judicial Independence – Hon. Ashley Tabaddor Tells Us How The Trump Administration & Billy Barr Are Rewriting That History To Weaponize EOIR As The Servant Of DHS Enforcement!

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Dear Colleagues,

As you may be aware, on August 26, 2019, the Agency announced drastic organizational changes to EOIR, via interim regulations effective immediately. Among a number of troubling changes, the Agency collapsed the role of the Director with that of the Chairperson of the Board. Attached please find NAIJ’s comment, filed on October 25, 2019, in response to this interim rule. You may also visit the following link to see other comments by additional organizations in response to the EOIR’s interim rule.

https://www.regulations.gov

I personally would like to take this opportunity to thank Judge Khan and Judge Marks for leading the laborious effort in finalizing this Comment for publication.

Additionally as we have just concluded our rating period, IJs should be receiving their formal performance evaluations. Please contact us with any questions or concerns if you believe (or have been notified) that you will receive a rating of less than Satisfactory on all of your PWP elements.

Many IJs have inquired about ways that they may register their protest against the imposition of the quotas and deadlines. If you are inclined, you may use the proposed language below in your cover email returning the electronically signed PWP to your ACIJ.

● Protest Language – “I do not agree that the numerical metrics/quotas constitute an accurate measure of my performance. Nor do I agree that the numbers produced by EOIR are accurate within the designated metric categories.”

As always, we welcome any questions, comments and concerns. Hope you have a great weekend,
Ashley Tabaddor
President, NAIJ

Here’s the complete NAIJ comment:

NAIJ Comment re Organization of EOIR 84 Fed.Reg. 44537 , RIN 1125-AA85- Final

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

Outrageous!

One of the “under the radar” aspects of this “deconstruction of justice in America” is the arrogant confidence of Sessions, Barr, and their minions at DOJ and EOIR that Congress and the Article III Courts will turn a “blind eye” to their blatantly “in your face” unconstitutional behavior. So far, they have been right.

Article III Courts have recognized the Immigration Judges’ “duty to remain neutral and impartial when they conduct immigration hearings.” See, e.g., Wang v. Att’y Gen., 423 F.3d 260, 267–68 (3d Cir. 2005). Yet, they have basically ignored their own rules and pronouncements by continuing to approve decisions from a “fake” court system. One where the “judges” are selected, supervised, and can be removed by the “Chief Prosecutor” and are told that they owe their first duty of obedience to that prosecutor rather than to the Constitution or the rule of law that they are sworn to uphold. Even when they do rule in favor of the individual, the prosecutor can and does simply reach in, change the result, and then designate his prosecutorial decision as a “precedent.”

What kind of “Due Process” and “fundamental fairness” is that? What Article III Judge would submit him or herself to such a parody of “justice?”

EOIR as “redesigned, politicized, and weaponized” against migrants and their courageous representatives by the Trump DOJ mocks the stated criteria and standards of the Article IIIs. Why are the Article IIIs afraid to follow up their legal rhetoric with the actions that logically should flow from it?

Under Trump, the Attorney General and his toadies have disingenuously disparaged the motives and character of the individuals coming before the “courts” and their attorneys. Many are actually forced to appear “unrepresented” and have no idea what is happening and the intentionally arcane, hyper technical, and confusing “rules” being applied to extinguish their rights and claims.

DOJ officials have also demeaned, disparaged, and denigrated the work ethic and character of their own “judges” with limitations on their authority, “Mickey Mouse” quotas and timeframes, and giving away judicial authority to non-judicial officials at EOIR, as Judge Tabaddor cogently points out.

Article III Courts compound that error when they improperly “defer” to Executive Branch adjudicators who are neither “fair and impartial” nor in many cases “expert.” The whole system is intentionally put under pressure to “produce and deport,” with scholarship, independent judicial decision making, and Due Process being shoved to the “back of the bus.”

By accepting contemptuous unlawful actions from Barr and the DOJ, the Article III Judiciary basically diminishes itself and demeans its Constitutional role. Perhaps that doesn’t make any difference to most of them; life tenure guarantees that they get paid every day just for waking up regardless of what they do afterwards. But, as Congress is finding out, once you establish yourselves as feckless in the face of a tyrannical and overbearing Executive, respect and proper Constitutional roles might prove difficult or impossible to regain.

Since the NAIJ leadership seem to be the only ones courageous enough to speak out against the travesty occurring in the Immigration Courts, no wonder the DOJ is trying to illegally disband the NAIJ. I wonder why these very overt actions to suppress the First Amendment and subvert the Fifth Amendment are going “over the heads” of the Article III Judiciary. What’s the purpose of an “independent judiciary” that is afraid or unwilling to stand up for judicial independence when it matters most!

As the late Dr. Martin Luther King, Jr., said:

“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

I think he would be totally disgusted with the overall performance of the Article III Appellate Judiciary in failing to stand up for and protect the legal rights and very lives of the most vulnerable among us: migrants, including asylum seekers.

FULL DISCLOSURE: I am a proud retired member of the National Association of Immigration Judges.

PWS
11-03-19

TRAC DOCUMENTS “MALICIOUIS INCOMPETENCE” IN EOIR‘S STATISTICS: “Of greatest concern is the lack of commitment from EOIR to ensuring the public is provided with accurate and reliable data about the Court’s operations.”

Incomplete and Garbled Immigration Court Data Suggest Lack of Commitment to Accuracy

TRAC recently discovered gross irregularities in recent data releases from the Executive Office for Immigration Review (EOIR), the agency that oversees the US immigration court system. After attempting – unsuccessfully – to work with the EOIR to fix these problems, TRAC decided to make public our observations of the quality of the agency’s public data releases as well as express our concerns about the lack of commitment within the agency to responsible data management.

Policymakers and the public routinely put their faith in federal agencies to provide complete and accurate information about their work. The value of government transparency is even higher in the area of immigration law and the Immigration Courts, which have become topics of considerable concern for Americans from all walks of life and for all three branches of government. In the present context, TRAC views concerns about EOIR’s data inconsistencies – outlined below – as substantive, ongoing, and in need of prompt attention. Of greatest concern is the lack of commitment from EOIR to ensuring the public is provided with accurate and reliable data about the Court’s operations.

“Significant Errors” in Past EOIR Data

This is not the first time the public has identified significant inaccuracies in EOIR’s reported data. For instance, the Supreme Court of the United States relied upon figures provided by the EOIR as the basis for a major ruling affecting ICE detention practices. After the Supreme Court decided the case, the public discovered that the figures provided by the EOIR were fundamentally wrong. The EOIR did not uncover the data irregularities on its own. The EOIR’s mistakes were only recognized because the public obtained the underlying data through a Freedom of Information Act (FOIA) request and identified the relevant discrepancies.

After the public alerted the government to its inaccuracies, in 2016 the U.S. Solicitor General was compelled to issue a formal letter to the Supreme Court apologizing for providing inaccurate data. The following excerpt of the Solicitor General’s letter on August 26, 2016 attests to this error:

“This letter is submitted in order to correct and clarify statements the government made in its submissions. … EOIR made several significant errors in calculating those figures. … This Court’s opinion cites figures that ‘EOIR ha[d] calculated,’ …, and those are, in fact, the figures EOIR had calculated, albeit incorrectly. … The Court therefore may wish to amend its opinion…” (emphasis added)

This example illustrates the very real danger posed by the EOIR’s mishandling of data, as well as the value to society – and the government itself – of ongoing oversight through Freedom of Information Act (FOIA) requests. Despite the EOIR’s past data mistakes, however, the quality of the agency’s data releases has recently declined to unacceptable levels, as we discuss in the following section.

Recent Data Trouble at the EOIR

As a result of TRAC’s ongoing FOIA requests, the Executive Office for Immigration Review releases a large batch of anonymized data about Immigration Court cases every month. Statistics on the operation of the Immigration Courts largely rely on information kept in a massive database maintained by the EOIR. The EOIR records information on each matter filed with the court and tracks subsequent events as the Court processes each case. This data is central to the Court’s ability to efficiently and effectively manage its workload.

Although this data is highly valuable to policymakers and the public, the EOIR’s mishandling of the data undermines its accuracy and public value. These data problems have been occurring with increasing regularity. Severe irregularities with the September 2019 data release set a new low.

On October 9, 2019, the EOIR responded to TRAC’s FOIA request for updated case-by-case data through September 2019. TRAC promptly began processing the data in order to update TRAC’s online tools and reports, and discovered serious inconsistencies that made the data unusable. TRAC alerted the EOIR to the problems we uncovered. The chronology below summarizes the cycle of data mishandling for the September data release, and TRAC’s attempts to work with the EOIR to obtain complete and corrected data.

Data Release, Batch 1. The initial release of the EOIR’s September data included 11 separate files of records on Immigration Court proceedings that were incorrectly formatted. The garbled data resulted in substantial confusion over the relationship between certain variables and values, with some values appearing to apply to the wrong variables in the file. If potential users were even able to read the garbled data, one could reach entirely erroneous conclusions about court events. As soon as TRAC discovered these issues, it alerted the EOIR directly. EOIR promised to look into the matter.

Data Release, Batch 2. In response to TRAC’s notification, the EOIR replaced the first release with a second release and informed TRAC that the problems had been fixed. However, when TRAC processed the second release, it found that while the first set of problems had been fixed, an entirely new set of problems had occurred. In Batch 2, thousands of records of court proceedings and 2.8 million records on scheduled hearings – hearings and proceedings which were included in the first release – had entirely disappeared. TRAC alerted the EOIR directly to the new set of data inconsistencies. EOIR promised once again to look into the matter.

Data Release, Batch 3. The EOIR informed TRAC that it had fixed these new problems, and that TRAC could trust Batch 3 of the EOIR’s data release. Note that EOIR doesn’t change the labels it uses for each release; the file name remains the same and hence on its face indistinguishable from any previous release. After processing millions of records contained in the series of separate tables that made up the new release, TRAC found that problems in batch three were identical to problems in batch two. We again notified EOIR that the problems remained. At first EOIR insisted that TRAC was wrong and that the problems had been fixed. It later emerged that while the General Counsel’s office of EOIR (TRAC’s point of contact) believed a third and corrected release was being supplied, the files had not been changed but were actually the same files that TRAC had received in Batch 2.

Data Release, Batch 3 (cont.) TRAC was finally provided access to what was again billed as the corrected September release. TRAC again processed these files. This time, based on total record counts it appeared that the missing 2.8 million records on scheduled hearings had reappeared. However, some court proceedings that had been contained in Batch 1 were still missing. And there were still other puzzling omissions which we describe in more detail below.

After this series of mistakes, TRAC urged the agency to implement basic quality control procedures to ensure that the EOIR’s data releases to the public were not inadvertently garbled or incomplete. Moreover, TRAC expressed concern about the EOIR’s underlying data management practices which posed a risk to both the public and the government if left unaddressed. We conveyed these concerns to EOIR noting specifically:

“There are standard procedures that anyone in charge of maintaining databases use. The pattern of repeatedly releasing files which are either unreadable or incomplete demonstrates the agency’s standard operating procedures are woefully inadequate.

This really needs to be taken seriously. Without answers to our questions that get to the bottom of what occurred, identifying what went wrong, and implementing a plan to catch mistakes before the agency publicly distributes bad data, means that history will keep repeating itself.”

On Friday, October 25, 2019, while admitting mistakes had been made, the EOIR dug in its heels. The agency responded to TRAC’s entreaties by sidestepping the underlying issue and avoiding responsibility for its routine inaccuracies:

“[T]he FOIA [Freedom of Information Act] does not require the Agency to create records in response to your specific questions, nor to certify the accuracy of data contained in responsive documents.”

TRAC was forced to take note of the EOIR’s unwillingness to fully correct their mistakes and to work with the public to resolve the declining quality in their data releases.

The Case of the EOIR’s Disappearing Data

After recognizing the seeming inability of EOIR to produce a correct and complete data release for September 2019, TRAC began digging deeper into the problem.

Our concern about EOIR’s data was already heightened. We recently discovered that some months ago the EOIR had begun silently deleting swaths of records in their entirety from the data releases that we and other members of the public received. EOIR belatedly told us that withholding of entire records was necessary to protect immigrants’ privacy. This rationale was perplexing since these records were already anonymized and all identifying details deleted. Regardless of the EOIR’s justification for withholding the records, the agency had started making these deletions without alerting us that it was doing so, and failed to mark the data in any way to indicate the magnitude of the deletions or indicate in which files the deletions occurred.

TRAC is in a fairly unique position to examine this problem. For many years, TRAC has been regularly requesting snapshots of anonymized data from EOIR’s database as part of our mission to provide the public (and often other government agencies themselves) with access to reliable, accurate data about the Immigration Courts. Because we receive and retain these monthly snapshots, we are able to monitor changes in these releases over time and assess whether releases are incomplete or inaccurate in some other way.

Therefore, TRAC undertook a careful comparison by matching the records received in the September 2019 release against the EOIR’s release for the previous month, August 2019, and with the release we received a year ago for September 2018. This time we matched records based on unique identification numbers rather than simply comparing total record counts. This allowed us to identify records which the EOIR released in the past but were missing entirely from the current shipment.

The results of this comparison were sobering. Compared to the August 2019 release, the (allegedly-accurate) final September 2019 release was inexplicably missing more than 1,500 applications for relief that were present the previous month. We further found that 896,906 applications for relief which were present in the September 2018 release from a year ago were missing from the September 2019 files we received. This discrepancy of nearly a million records largely occurred because the EOIR appears to have started silently but systematically deleting records.

Compared to the data from August 2019, the EOIR’s files for September were also missing records on over 600 charges DHS had filed. Also missing were over 700 case and/or court proceeding records, and over 900 records on scheduled hearings. An additional 1,200 records flagging various specific types of cases were also missing. For context, this flagging system is used to identify juveniles, recently arrived families seeking asylum, and immigrants required to remain in Mexico under the Migration Protection Protocols, and other special cases.

When the records in the September 2019 release TRAC received were matched with those from the September 2018 release a year earlier, the problems we uncovered multiplied. It was clear that the problem of missing records grew by leaps and bounds with the passage of time.

EOIR Data Management: Problems and Solutions

Based on the investigation above, TRAC identified key gaps in the EOIR’s data verification procedures that lead to unreliable and inaccurate data releases.

Unintentional data removal. The EOIR’s data is inconsistent because the agency apparently does not perform a simple yet essential data verification step: it does not compare the number of records in its source database and the number of records in its released files to ensure that no records have been lost along the way. This is not merely a best practice. It is an industry standard for agencies managing large databases, and it is a routine practice in many of the EOIR’s peer agencies that provide large data releases to TRAC.

Intentional data removal. The EOIR also does not appear to be keeping track of intentionally deleted records. If the EOIR is screening out records for specific reasons, then the number withheld for each reason in a file should be counted and these counts provided. The number withheld plus the number released should match the total number of records read in to ensure reliability.

Garbled data releases. The EOIR is paying insufficient attention to how data releases are produced and formatted. Columns and rows in each table need to properly line up; otherwise information becomes garbled. And since EOIR’s database consists of many closely interconnected tables, copying data in individual tables at widely separated points in time inherently means the information will be out of sync.

Possible data deletion in master database. Deletions of the EOIR’s original source records need to be carefully tracked and procedures in place to prevent unauthorized deletions from occurring. If applied systematically, such a verification process would also pinpoint whether there were deletions made in EOIR’s original source records. Any suspicious deletions need to be investigated to ensure the integrity and completeness of this master database is maintained.

If the EOIR does not implement basic data verification procedures, the public cannot tell if records were intentionally withheld and why they were withheld, or if records were accidentally omitted during the data copying process. The failure to address these problems also means that the public has no way to test for potential problem areas in EOIR’s underlying master data files.

Accuracy, Reliability, Cooperation

Under any circumstance, maintaining a massive database of this nature is challenging. Clearly it requires the resources necessary for day-to-day operations. More fundamentally, however, it requires a commitment on behalf of the agency to provide the public with complete, accurate, and reliable data about the agency’s operations. When TRAC uncovered unexplained data issues in the past, we have brought them to the attention of the EOIR and generally found the agency to be fairly responsive and committed to ensuring accurate reporting. The recent change in posture is therefore concerning. Moreover, because EOIR’s data are relied upon as part of the official record of court filings and proceedings that have taken place, one should not expect official records to simply go missing without explanation.

It is deeply troubling that rather than working cooperatively with TRAC to clear up the reasons for these unexplained disappearances, the agency has decided to dig in its heels and insist the public is not entitled to have answers to why records are missing from the data EOIR releases to the public. TRAC urges the EOIR to take the basic steps necessary for managing any large database, especially a database of as inestimable value and relevance as the one EOIR maintains for the Immigration Courts.

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.

Report date: October 31, 2019

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

Without accurate data, there can be no effective oversight, by Congress, the Judiciary, or the public (which contrary to their nasty attitude, is whom EOIR actually serves). TRAC’s experience with “malicious incompetence” is typical of the Trump Administration’s “stonewalling” and disregard of honesty and public service. They are too busy denying Due Process and evading the law to bother with facts.

Quality is simply not a factor, or even an objective, at the “New EOIR!” Unfortunately, that’s true not only in record keeping, but also in making life or death adjudications.

The only thing that makes any difference in this Administration is a preconceived White Nationalist agenda that has absolutely nothing to do with facts or public service and everything to do with racism, xenophobia, and political pandering. Obviously, because facts and data don’t support, and typically directly refute, this Administration’s draconian anti-immigrant initiatives, they have no interest in the truth or accuracy. Indeed, as in most things, facts and truth are quite damaging to the Trump Administration’s programs.

There is absolutely no excuse for EOIR’s continued existence. Much of the information that EOIR feeds to the Judiciary, through DOJ attorneys, is misleading, inaccurate, or perhaps even fabricated. By not putting a stop to EOIR’s nonsense and non-responsiveness, both Congress and the Article III Courts are demeaning themselves and shirking their Constitutional responsibilities.

PWS

11-01-19

HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

https://www.rollcall.com/news/congress/doj-changed-hiring-promote-restrictive-immigration-judges?fbclid=IwAR2VfI3AKcttNoXlc_MX0sa-6X94bsOWF4btxb7tWDBz7Es4bvqB63oZA-0

Tanvi Misra reports for Roll Call:

DOJ changed hiring to promote restrictive immigration judges

New practice permanently placed judges on powerful appellate board, documents show

Posted Oct 29, 2019 2:51 PM

Tanvi Misra

@Tanvim

More non-Spanish speaking migrants are crossing the border DHS advances plan to get DNA samples from immigrant detainees White House plans to cut refugee admittance to all-time low

Error! Filename not specified.

James McHenry, director of the Justice Department’s Executive Office for Immigration Review, testifies before a Senate panel in 2018. Memos from McHenry detail changes in hiring practices for six restrictive judges placed permanently on the Board of Immigration Appeals. (Chip Somodevilla/Getty Images)

The Department of Justice has quietly changed hiring procedures to permanently place immigration judges repeatedly accused of bias to a powerful appellate board, adding to growing worries about the politicization of the immigration court system.

Documents obtained through Freedom of Information Act requests describe how an already opaque hiring procedure was tweaked for the six newest hires to the 21-member Board of Immigration Appeals. All six board members, added in August, were immigration judges with some of the highest asylum denial rates. Some also had the highest number of decisions in 2017 that the same appellate body sent back to them for reconsideration. All six members were immediately appointed to the board without a yearslong probationary period.

[More non-Spanish speaking migrants are crossing the border]

“They’re high-level deniers who’ve done some pretty outrageous things [in the courtroom] that would make you believe they’re anti-immigrant,” said Jeffrey Chase, a former immigration judge and past senior legal adviser at the board. “It’s a terrifying prospect … They have power over thousands of lives.”

Among the hiring documents are four recommendation memos to the Attorney General’s office from James McHenry, director of the Executive Office for Immigration Review, which oversees the nation’s immigration court system.

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The memos, dated July 18, recommend immigration judges William A. Cassidy, V. Stuart Couch, Earle B. Wilson, and Keith E. Hunsucker to positions on the appellate board. McHenry’s memos note new hiring procedures had been established on March 8, to vet “multiple candidates” expressing interest in the open board positions.

A footnote in the memos states that applicants who are immigration judges would be hired through a special procedure: Instead of going through the typical two-year probationary period, they would be appointed to the board on a permanent basis, immediately. This was because a position on the appellate board “requires the same or similar skills” as that of an immigration judge, according to the memo.

Appellate board members, traditionally hired from a variety of professional backgrounds, are tasked with reviewing judicial decisions appealed by the government or plaintiff. Their decisions, made as part of a three-member panel, can set binding precedents that adjudicators and immigration judges rely on for future cases related to asylum, stays of deportation, protections for unaccompanied minors and other areas.

McHenry, appointed in 2018 by then-Attorney General Jeff Sessions, concludes his recommendation memos by noting that the judge’s “current federal service was vetted and no negative information that would preclude his appointment” was reported. He does not mention any past or pending grievances, although public complaints have been filed against at least three of the judges.

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These documents, obtained through FOIA via Muckrock, a nonprofit, collaborative that pushes for government transparency, and shared with CQ Roll Call, reflect “the secrecy with which these rules are changing,” said Matthew Hoppock, a Kansas City-based immigration attorney. “It’s very hard to remove or discipline a judge that’s permanent than when it’s probationary, so this has long term implications.”

‘If I had known, I wouldn’t have left’: Migrant laments ‘Remain in Mexico’ policy

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The Department of Justice declined to answer a series of questions asked by CQ Roll Call regarding the new hiring practices, why exemptions were made in the case of these immigration judges and whether complaints against any of the judges were considered.

“Board members, like immigration judges, are selected through an open, competitive, and merit-based process involving an initial review by the Office of Personnel Management and subsequent, multiple levels of review by the Department of Justice,” a DOJ official wrote via email. “This process includes review by several career officials. The elevation of trial judges to appellate bodies is common in almost every judicial system, and EOIR is no different.”

Homestead: On the front lines of the migrant children debate

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Opaque hiring process

When the department posted the six board vacancies in March, the openings reflected the first time that board members would be allowed to serve from immigration courts throughout the country. Previously, the entire appellate board worked out of its suburban Virginia headquarters.

In addition, the job posts suggested that new hires would be acting in a dual capacity: They may be asked to adjudicate cases at the trial court level and then also review the court decisions appealed to the board. Previously, board members stuck to reviewing appeals cases, a process that could take more than a year.

Ultimately, all six hires were immigration judges, although past board candidates have come from government service, private sector, academia and nonprofits.

“This was stunning,” MaryBeth Keller, chief immigration judge until she stepped down this summer, said in a recent interview with The Asylumist, a blog about asylum issues. “I can’t imagine that the pool of applicants was such that only [immigration judges] would be hired, including two from the same city.”

Keller said immigration judges are “generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that.”

Paul Wickham Schmidt, a retired immigration judge who headed the board under President Bill Clinton, said the panel always had arbitrary hiring procedures that changed with each administration and suffered from “quality control” issues. But the Trump administration has “pushed the envelope the furthest,” he said.

“This administration has weaponized the process,” he told CQ Roll Call. “They have taken a system that has some notable weaknesses in it and exploited those weaknesses for their own ends.”

The reputation and track record of the newest immigration judges has also raised eyebrows.

According to an analysis of EOIR data by the Transactional Records Access Clearinghouse at Syracuse University, each of these newest six judges had an asylum denial rate over 80 percent, with Couch, Cassidy, and Wilson at 92, 96, and 98 percent, respectively. Nationally, the denial rate for asylum cases is around 57 percent. Previous to their work as immigration judges, all six had worked on behalf of government entities, including the Department of Homeland Security, Department of Justice and the military.

“It mirrors a lot of the concerns at the trial level,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association (AILA). She said several new hires at the trial level have been Immigration and Customs Enforcement attorneys.

“Every day across the country, people’s lives hang in the balance waiting for immigration judges to decide their fate,” she said. “Asylum grant rates for immigration court cases vary widely depending on the judge, suggesting that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.”

Immigration experts note that denial rates depend on a variety of factors, including the number and types of cases that appear on a judge’s docket. Perhaps a better measure of an immigration judge’s decision-making may be the rate that rulings get returned by the appeals board.

For 2017, the last full year for which data is available, Couch and Wilson had the third and fourth highest number of board-remanded cases — at 50 and 47 respectively, according to federal documents obtained by Bryan Johnson, a New York-based immigration lawyer. The total number of cases on their dockets that year were 176 and 416, respectively.

Some of the behavior by the newer judges also have earned them a reputation. In 2018, AILA obtained 11 complaints against Cassidy that alleged prejudice against immigrant respondents. In a public letter the Southern Poverty Law Center sent last year to McHenry, the group complained that Cassidy bullied migrants in his court. He also asked questions that “exceeded his judicial authority,” Center lawyers wrote.

Another letter, sent in 2017 by SPLC lawyers and an Emory University law professor whose students observed Cassidy’s court proceedings, noted the judge “analogized an immigrant to ‘a person coming to your home in a Halloween mask, waving a knife dripping with blood’ and asked the attorney if he would let that person in.”

SPLC also has documented issues with Wilson, noting how he “routinely leaned back in his chair, placed his head in his hands and closed his eyes” during one hearing. “He held this position for more than 20 minutes as a woman seeking asylum described the murders of her parents and siblings.”

Couch’s behavior and his cases have made news. According to Mother Jones, he once lost his temper with a 2-year-old Guatemalan child, threatening to unleash a dog on the boy if he didn’t stop making noise. But he is perhaps better known as the judge who denied asylum to “Ms. A.B.,” a Salvadoran domestic violence survivor, even after the appellate board asked him to reconsider. Sessions, the attorney general at the time, ultimately intervened and made the final precedent-setting ruling in the case.

Couch has a pattern of denying asylum to women who have fled domestic violence, “despite clear instructions to the contrary” from the appellate board, according to Johnson, the immigration lawyer who said Couch “has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum.”

Jeremy McKinney, a Charlotte-based immigration lawyer and second vice president at AILA, went to law school with Couch and called him “complex.” While he was reluctant to characterize the judge as “anti-immigrant,” he acknowledged “concerning” stories about the Couch’s court demeanor.

“In our conversations, he’s held the view that asylum is not the right vehicle for some individuals to immigrate to the U.S. — it’s one I disagree with,” McKinney said. “But I feel quite certain that that’s exactly why he was hired.”

Politicizing court system

Increasingly, political appointees are “micromanaging” the dockets of immigration judges, said Ashley Tabaddor, head of the union National Association of Immigration Judges. Appointees also are making moves that jeopardize their judicial independence, she said. Among them: requiring judges to meet a quota of 700 completed cases per year; referring cases even if they are still in the midst of adjudication to political leadership, including the Attorney General, for the final decision; and seeking to decertify the immigration judges’ union.

These are “symptoms of a bigger problem,” said Tabaddor. “If you have a court that’s situated in the law enforcement agency … that is the fundamental flaw that needs to be corrected.”

In March, the American Bar Association echoed calls by congressional Democrats to investigate DOJ hiring practices in a report that warned the department’s “current approach will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring.”

“Moreover, until the allegations of politically motivated hiring can be resolved, doubt will remain about the perceived and perhaps actual fairness of immigration proceedings,” the organization wrote. “The most direct route to resolving these reasonable and important concerns would be for DOJ to publicize its hiring criteria, and for the inspector general to conduct an investigation into recent hiring practices.”

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One of the most disgusting developments, that the media sometimes misses, is that having skewed and biased the system specifically against Central American asylum seekers, particularly women and children, the Administration uses their “cooked” and “bogus” statistics to make a totally disingenuous case that the high denial rates show the system is being abused by asylum seekers and their lawyers. That, along with the “fiction of the asylum no show” been one of “Big Mac’s” most egregious and oft repeated lies! There certainly is systemic abuse taking place here — but it is by the Trump Administration, not asylum seekers and their courageous lawyers.

This system is a national disgrace operating under the auspices of a feckless Congress and complicit Article III courts whose life-tenured judges are failing in their collective duty to put an end to this blatantly unconstitutional system: one that also violates statutory provisions intended to give migrants access to counsel, an opportunity to fully present and document their cases to an unbiased decision maker, and a fair opportunity to seek asylum regardless of status or manner of entry. Basically, judges at all levels who are complicit in this mockery of justice are “robed killers.”

Just a few years ago, asylum seekers were winning the majority of individual rulings on asylum in Immigration Court. Others were getting lesser forms of protection, so that more than 60 percent of asylum applicants who got final decisions in Immigration Court were receiving much-needed, life-saving protection. That’s exactly what one would expect given the Supreme Court’s pronouncements in 1987 about the generous standards applicable to asylum seekers in INS v. Cardoza-Fonseca.

Today, conditions have not improved materially in most “refugee sending countries.” Indeed, this Administration’s bogus designation of the Northern Triangle “failed states” as “Safe Third Countries” is absurd and shows their outright contempt for the system and their steadfast belief that the Federal Judiciary will “tank” on their responsibility to hold this Executive accountable.

As a result of this reprehensible conduct, the favorable trend in asylum adjudication has been sharply reversed. Now, approximately two-thirds of asylum cases are being denied, many based on specious “adverse credibility” findings, illegal “nexus” findings that intentionally violate the doctrine of “mixed motives”enshrined in the statute, absurdly unethical and illegal rewriting of asylum precedents by Sessions and Barr, intentional denial of the statutory right to counsel, and overt coercion through misuse of DHS detention authority to improperly “punish” and “deter” legal asylum seekers.

Right under the noses of complicit Article III Judges and Congress, the Trump Administration has “weaponized” the Immigration “Courts” and made them an intentionally hostile environment for asylum seekers and their, often pro bono or low bono, lawyers. How is this acceptable in 21^st Century America?

That’s why it’s important for members of the “New Due Process Army” to remember my “5 Cs Formula” – Constantly Confront Complicit Courts 4 Change. Make these folks with “no skin the game” feel the pain and be morally accountable for those human lives they are destroying by inaction in the face of Executive illegality and tyranny from their “ivory tower perches.”

We’re in a war for the survival of our democracy and the future of humanity. There is only one “right side” in this battle. History will remember who stood tall and who went small when individual rights, particularly the rights to Due Process and fair treatment for the most vulnerable among us, were under attack by the lawless forces of White Nationalism and their enablers!

PWS

10-31-19

TRAC: TRUMP DOJ’S “MALICIOUSLY INCOMPETENT POLICIES” SIGNIFICANTLY CONTRIBUTED TO ASTOUNDING 1,346,302 BACKLOG AND 4+ YEAR WAITS FOR HEARINGS — Don’t Let The Villains Blame The Victims & Their Lawyers For This Largely Self-Created Mess!

Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times

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Transactional Records Access Clearinghouse

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FOR IMMEDIATE RELEASE

The current policies of the Trump Administration have been unsuccessful in stemming the rise in the Immigration Court’s backlog. Overcrowded dockets create lengthening wait times for hearings. At some locations, immigrants with pending cases now wait on average 1,450 days or more – over four years! – before their hearing is scheduled.

Despite promises to reduce the backlog, the latest case-by-case records show that the growth in the backlog has actually accelerated each year since President Trump assumed office. At the start of this administration, 542,411 cases were pending before immigration judges. By September 30, 2019, the backlog had grown to 1,023,767 “active” cases. This rises to 1,346,302 when cases that have not yet been calendared are added. Year-by-year the pace of increase has quickened. The active backlog grew 16.0 percent from January 2017 to the end of that fiscal year, climbed an additional 22.1 percent during FY 2018, and this past year jumped by a further 33.3 percent.

While many sources for this rise are outside the court’s control, policy decisions and practices by the Department of Justice which oversees the Immigration Court have significantly contributed to growing caseloads. For example, the decision to reopen previously closed cases has caused a much greater increase in the court’s backlog than have all currently pending cases from families and individuals arrested along the southwest border seeking asylum.

Despite accelerated hiring of new judges and the imposed production quotas implemented last year, the average caseload Immigration Court judges face has continued to grow. On average each judge currently has an active pending caseload of over two thousand cases (2,316) and over three thousand cases when the additional un-calendared cases are added (3,046). Even if the Immigration Court stopped accepting any new cases, it would still take an estimated 4.4 years to work through this accumulated backlog.

In the New York City Immigration Court which has the largest backlog in the country, hearings are currently being scheduled five years out – all the way into December of 2024. Four other courts are scheduling hearings as far out as December 2023. These include courts in Chicago, Illinois; Houston, Texas; Philadelphia, Pennsylvania; and Arlington, Virginia.

For full details, including the average wait times and pending cases at each hearing location, go to:

https://trac.syr.edu/immigration/reports/579/

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

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

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https://twitter.com/tracreports

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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:

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

David Burnham and Susan B. Long, co-directors

Transactional Records Access Clearinghouse

Syracuse University

Suite 360, Newhouse II

Syracuse, NY 13244-2100

315-443-3563

trac@syr.edu

http://trac.syr.edu

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

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Obviously, “Aimless Docket Reshuffling” (“ADR”), stripping Immigration Judges of all authority to manage their individual dockets, the war on Attorney representation, and the complete absence of the type of prosecutorial discretion that all other enforcement systems in America, save for the DHS, use to make reasonable use of the available judicial time are taking a big toll here! A court run by maliciously incompetent political clowns is inevitably going to become “Clown Court.”

Congress and the Article III Courts are heading for an existential crisis in our justice system if they don’t step in and force some Due Process, judicial independence, and normal professional unbiased judicial administration into this corrupt and intentionally broken system that spews out illegal and unconstitutional “removal orders” every day.

Whatever happened to accountability and the supposedly independent role of the Article III Federal Judiciary? Why is a national disgrace like the “Trumped-Up” Immigration Courts operating within the rogue DOJ allowed to continue its daily abuses?

History will judge these failing institutions and those who ignored their sworn duties harshly!

PWS

10-25-19

“THE ASYLUMIST” INTERVIEWS RETIRED CHIEF IMMIGRATION JUDGE MARYBETH T. KELLER – Chronicling The Rise & Sad Demise Of EOIR: From Protector To Abuser Of Due Process: “Under Director McHenry, the advice of the agency’s career executives was often not even solicited, and did not appear to be valued. His approach caused many to question the soundness of his operational decisions, and his commitment to the mission of the court, as opposed to accommodating the prosecutorial goals of DHS.”

http://www.asylumist.com/2019/10/15/an-interview-with-marybeth-keller-former-chief-immigration-judge-of-the-united-states/

MaryBeth Keller was the Chief Immigration Judge of the United States from September 2016 until July 2019. She was the first woman to hold that position. The Asylumist sat down with her to discuss her career, her tenure as CIJ, and her hope for the future of the Immigration Courts.

Asylumist: Tell us about your career. How did you get to be the Chief Immigration Judge of the United States?

Judge Keller: I was appointed to the position by Attorney General Loretta Lynch in 2016. By that time, I had been at EOIR (the Executive Office for Immigration Review) for 28 years, and had a lot of experience with and knowledge of the entire organization, especially the Office of the Chief Immigration Judge (“OCIJ”) and the Board of Immigration Appeals (“BIA”).

After law school at the University of Virginia, I clerked for state court judges in Iowa. I wanted to return to DC, and in those days – the late 1980s – there were a lot of options. I submitted my resume to a federal government database and was selected to interview at the BIA for a staff attorney position (they liked the fact that I had taken an immigration law class with Professor David Martin at UVA). At the interview, I knew it would be an incredible job. The BIA is the highest level administrative body in immigration law, and the people I met seemed happy to be there. I thought I would stay maybe two years and then move on, but I ended up remaining with EOIR for 31 years.

MaryBeth Keller

I was at the BIA for about 15 years, nine of those as a manager. In my early days as a staff attorney, I helped revitalize the BIA union, which was basically defunct when I arrived. Some employees had wanted to simply decertify the union, but a colleague and I convinced the majority of attorneys and staff that it could be a useful organization, so they voted to keep it. I was the union president for several years. After I later became a manager, my colleagues joked that my penance for having led the BIA union was to have to deal with the union from the other side. I helped then-Chairman Paul Schmidt revamp and restructure the BIA in the mid-1990s.

From there, I served as EOIR’s General Counsel and was involved with many reforms, including the institution of the first fraud program and a program to address complaints about the conduct of Immigration Judges. This ultimately led to my appointment as the first Assistant Chief Immigration Judge (“ACIJ”) for Conduct and Professionalism (“C&P”). At the time, David Neal was the Chief Immigration Judge, and we built the C&P program from whole cloth. In addition to responsibility for judge conduct, performance, and disciplinary issues, I supervised courts from headquarters and was the management representative to the judges’ union. All of this experience led to me to the position of Chief Judge.

Asylumist: What does the CIJ do? How is that position different from the EOIR Director or General Counsel?

Judge Keller: I view the CIJ’s job as leading the trial level immigration courts to execute the mission of EOIR, including, most importantly, managing the dockets to best deliver due process. In practical terms, this involved hiring and training judges and staff, determining the supervisory structure of the courts, directing the management team of Deputies, ACIJs, and Court Administrators, overseeing the Headquarters team that supports the field, including an administrative office, a business development team, legal advisers, an organizational results unit, and an interpreters unit. The CIJ also collaborates with the other senior executives such as the Chairman of the BIA, the General Counsel, and the Director of Administration to coordinate agency activities on a broader scale. In years past, the CIJ acted as a high-level liaison with counterparts in DHS, the private bar, and other governmental and nongovernmental groups.

The regulations–specifically 8 C.F.R. 1003.9–describe the function of the CIJ. I kept a copy of that regulation on my wall. The regulations set forth the CIJ’s authority to issue operational instructions and policy, provide for training of the immigration judges and other staff, set priorities or time frames for the resolution of cases, and manage the docket of matters to be decided by the immigration judges.

Despite the regulation, under the current Administration, much of the CIJ’s, authority has been assumed by the Director’s Office or the newly created Office of Policy. Court operational instructions, court policy, the provision of training, setting priorities and time frames for case disposition, and many other matters are now being performed by the EOIR Director’s Office, with minimal input from the CIJ and OCIJ management. I do recognize the regulation setting forth the authority of the Director, as well as the fact that the CIJ’s authority is subject to the Director’s supervision. However, reliance on career employees and specifically the career senior executives (Senior Executive Service or SES) at the head of each EOIR component is significantly diminished now. I believe that is compromising the effectiveness of EOIR as a whole. Senior Executives have leadership skills and incredible institutional knowledge and experience that should bridge that gap between policy and operations. They should be a part of developing the direction of the agency and its structure to most effectively accomplish its functions, but are instead largely sidelined and relegated to much more perfunctory tasks. I worry that people with valuable skills will not be satisfied with decreased levels of responsibility, and will leave the agency. This will make it more difficult for EOIR to meet the challenges it is facing.

To answer the question as to how the CIJ position is different from the Director and General Counsel, the EOIR Director manages all the components of the Agency (BIA, OCIJ, Administration, and OGC) and reports to the Deputy Attorney General. The EOIR General Counsel provides legal and other advice to the EOIR component heads and the Director.

Asylumist: What were your goals and accomplishments as CIJ? Is there anything you wanted to do but could not get done?

Judge Keller: I was fortunate to serve as the CIJ at a time of many changes: Hiring an unprecedented number of IJs, finally beginning to implement electronic filing, and creating new ways to effectively complete cases. At the same time, we faced challenges, such as the ever-changing prioritization of certain types of cases, an increased focus on speed of adjudication, and the creation of the new Office of Policy within the agency, which was given far-reaching authority.

Amid these changes, one of my goals was to use my experience at the agency and my credibility to reassure judges and staff that, despite any changes, our mission of delivering fair hearings and fair decisions would remain unchanged. I always told new classes of judges that their primary responsibility was to conduct fair hearings and make fair decisions. Due process is what we do. And if we don’t get that right, we are not fulfilling the mission of the immigration court. I had the sense that my presence as CIJ gave people some level of security that we were holding on to that mission during all of the change.

Another goal was to hire more staff. I thought I would have more control over hiring and court management than I ultimately did. In terms of hiring, while we greatly increased the number of IJs, it is important to remember that IJs cannot function without support staff: Court administrators, legal assistants, clerks, interpreters, and others. The ratio is about 1-5, judges to support staff. Our hope was also to have one law clerk per IJ and we made some major progress in that regard. It might be wiser for EOIR to take a breather from hiring more judges and focus on hiring support staff, because that is imperative for the court to function. Overall, I was not able to prioritize staff hiring as I would have liked, nor was I confident that my office’s input had much impact on hiring decisions.

Aside from hiring many more judges, some of the positive changes we made while I was there included implementing shortened oral decisions–we do not need a 45-page decision in every case. Shorter decisions, where appropriate, are vital to increasing efficiency. We also encouraged more written decisions. It seems counterintuitive, but written decisions can actually be more efficient than oral decisions. If you have the written material available, as well as law clerks, and the administrative time to review the decision, written decisions save the time that would be spent delivering the oral decision and that time can be used for additional hearings. For this purpose, we greatly increased the accessibility of legal resources for both judges and staff through the development of a highly detailed and searchable user-friendly electronic database of caselaw, decisions, and other reference material.

Importantly, we were also working on ways to replace the standard scheduling based on Individual and Master Calendar Hearings. Instead, in a manner more like other courts, we would schedule cases according to the particular needs of the case, including creating, for example, a motions docket, a bond docket, a short-matters docket. Cases would be sent to certain dockets depending on what issues needed to be addressed, and then move through the process as appropriate from there. Different judges might work on one case, depending on what was needed. During the course of this process, many cases would resolve at the earliest possible point, and some would fall out–people leave the country, they obtain other relief, etc. But in the meantime, such cases would not have taken up a normally-allotted four hour Individual Calendar hearing block in the IJ’s schedule. We were looking to do at least three things: Secure a certain trial date at the start of proceedings, allot time judiciously to each matter, and reduce the time between hearings. If the immigration courts could successfully transition to this model, it would improve the timeliness and rate of completion of final decisions.

While I was CIJ, we also looked to see how other courts dealt with issues such as technology. For example, we went to see the electronic systems at the Fairfax County, Virginia court. That system is more advanced than EOIR’s, and it would, for example, allow a judge to give advisals that are simultaneously translated into different languages for different listeners. This would eliminate the time it takes to do individual advisals, without sacrificing the face-to-face time with the judge. We also investigated video remote interpreting, which is having the interpreter in the courtroom via video, so everyone can see and hear each other as if they were in the same place. IT infrastructure to properly support such initiatives is very expensive, but is obviously currently available and used by other court systems. Changes like improving the interpretation system and implementing e-filing and a user friendly electronic processing system would make a profound difference in how the courts operate.

I believe that some of these ideas are still being considered, but the problem is that there does not seem to be much patience for changes that are not a quick fix. I had hoped to move things further than we were able to, but we did make progress as I discussed.

As another example of a positive accomplishment, EOIR is now very effectively using more contractors for administrative support. This was started by Juan Osuna when he was Director of EOIR, and it has been highly successful. Because our growth has been so rapid, contract employees allow us to get top-notch people quickly, and gives us the flexibility to easily replace someone whose performance is not up to speed. Contractors are not a substitute for permanent employees, but can bridge the gap between a vacancy and a new hire. Once contractors have some experience, they can apply for permanent positions and by then, we have good knowledge of their skills and can hire experienced workers.

Finally, a major accomplishment was that I was the first female Chief Immigration Judge. Even though my experience was extensive, I still had to fight to get the job, including nine hours of interviews. At the time, I think I underestimated how much the workplace was still unaccustomed to women in particular positions. The emails I received after I left the job were astounding. Men and women alike wrote to tell me how much it meant to them to have a female CIJ.

Asylumist: How did things at EOIR change between the Obama Administration and the Trump Administration?

Judge Keller: Things now are unlike any time in the past. As I think we have been seeing throughout government during this Administration, the difference seems to be that there is now a fundamental distrust of people and organizations in the federal government. Over three decades, I have worked through a variety of administrations at all points on the political spectrum. Long-time federal employees are very accustomed to altering course when new administrations come in, whether or not the political parties change. Many employees and executives like me welcomed change as an opportunity to move their organizations forward and make the delivery of their services better. But if those in political power do not trust their subordinates and the functions of the agencies they run, it’s a very different and difficult scenario.

Some of the “small p” political pressure was happening by the end of the Obama Administration. For example, we saw this with children’s cases and the instruction we received from Justice Department leaders in political positions to prioritize those cases on our dockets. Still, in that instance, once the political goal was set, the best way to accomplish the goal, and even its ongoing feasibility, was largely left to senior staff in the agency with operational expertise to implement or to ultimately advise superiors that a different course of action might be needed. Now, very often both the political and the operational decisions down to the smallest details are dictated from above. For example, even my emails and communications to staff were edited from above. Aside from the very questionable advisability of having operational determinations made by persons with no operational expertise, this approach subjects the court process to claims that it is not neutrally deciding cases but instead deciding cases in the manner that political leaders would like.

Until recently, I had never really thought very hard about an Article I court for immigration cases. I thought that the line between politics and neutral adjudication was being walked. There was no major concern from my perspective about EOIR managers navigating that line. Now, the level of impact of political decisions is so extraordinary that I wonder whether we do need to remove the immigration courts from the Department of Justice. I’ve just started to seriously consider the validity of this idea and I need to do more research and thinking about it. The American Bar Association’s recommendations are very persuasive and of significant interest to me. Before, I would not have thought it necessary.

Of course, moving the Immigration Courts to Article I status would not solve all our problems, but it could free us from some of the questions that have been raised over the years about politicized hiring, how cases are being politically prioritized, and whether that is appropriate for a court.

Another large change came in our ability to talk to those we serve. To best function, you have to talk to stakeholders on both sides: The Department of Homeland Security (DHS) and the private bar/respondents. This used to be standard procedure in past administrations, and it was done at both the upper and ground levels. Recently, such conversations were much more limited, and took place primarily at higher levels, often above my position and that of my Deputies. This change was touted as a way to streamline the Agency’s messaging system, but cutting off other forms of communication is detrimental, and I think EOIR has been hampered by our inability to talk at different levels to stakeholders.

We previously had a great relationship with the American Immigration Lawyers Association (“AILA”). For example, when I was working on conduct and professionalism for Immigration Judges, AILA was a great help. At the time, AILA’s message was the same as our message (poor conduct of adjudicators and representatives should be addressed), and we successfully partnered for a long time. Similarly, the CIJ previously had regular interactions with DHS’s Principal Legal Advisor and others in the DHS management chain, but that is no longer the case. Another change to the management structure that I believe was ill-advised was abolishing the “portfolio” ACIJs who bore targeted responsibility for several very important subjects to immigration court management: Judge conduct and professionalism, training, and vulnerable populations. In my experience, having officials whose specialized function was to oversee programs in these areas increased the integrity, accessibility, credibility, and efficiency of the court.

Asylumist: While you were CIJ, EOIR implemented quotas. IJs are now supposed to complete 700 cases per year. Can you comment on this?

Judge Keller: Many different court systems have performance goals and I am generally in favor of those. But the question is, How do you establish and implement them? Are you consulting the managers and IJs about it? How do you come up with the goals? Should they be uniform across the courts? The current requirements were not developed by me or my management team. Numeric expectations alone are not going to fix things. Timeliness is more important in my view than specific numbers. Moreover, the way that the emphasis is being placed on these numbers now sends the wrong message to both the parties and our judges and court staff. Also, court staff and stakeholders would more likely buy into such a change if they understood how the goal was developed, and why. My experience is that IJs are generally over-achievers and they want to do well and will meet or exceed any goals you set. In my view, completing 700 cases may be an appropriate expectation for some judges and dockets, and might be too high or even too low for others. Courts, dockets, and cases are vastly different from the southern border to the Pacific Northwest to the bigger cities, so I’m not sure about a one-size-fits-all approach.

Asylumist: What about the Migrant Protection Protocols (“MPP”), also known as the Remain in Mexico policy. Can you comment on the effectiveness or efficacy of this program?

Judge Keller: The MPP began right before I left EOIR. In the MPP, as with all dockets, the role of the immigration court is simply to hear and resolve the cases that DHS files, but there were and still are, many legal and procedural concerns about the program. For example, what is the status of a person when they come across the border for their hearing, are they detained or not? Also, there were significant practical considerations. If you bring people across the border and plan to use trailers or tents for hearings, you need lines for IT equipment, air conditioning, water, bathrooms, etc. All that needs to be taken care of well in advance and is a huge undertaking. My impression of the MPP was that it was a political policy decision, which, even if an appropriate DHS exercise, is evidence of how asking the court to prioritize political desires impacts the overall efficiency of the court. The resources it required us to commit in terms of planning, and the resources it took away from the remaining existing caseload will likely contribute to further delay in other cases.

Asylumist: According to press reports, you and two other senior EOIR officials–all three of you women–were forced out in June 2019. What happened? Why did you leave?

Judge Keller: Unless there is something I don’t know about my two colleagues, none of us was forced out. I was not. We could have stayed in our same roles if we had chosen to do so. At the same time, I would not necessarily say that our departures were completely coincidental. I do know that the nature of our jobs had changed considerably.

For me, the previous level of responsibility was no longer there, and I did not have the latitude to lead the OCIJ workforce. My experience and management skills were not being used and I was mostly implementing directives. Any time three experienced, high-level executives depart an agency, there should be cause for concern. The fact that we were all women certainly raises a question, but EOIR has always been pretty progressive in that regard. Nevertheless, appropriate equal respect for women in the workplace is something that unfortunately still needs attention everywhere.

Leaving EOIR was a hard decision for me to make, and I think it was a big loss for EOIR that all three of us chose to exit.

The politicization of the court was also a concern for me. Historically, the Director of EOIR was always a career SES appointee, not a political SES. I viewed that as critically important, symbolically and practically, for a court system, especially one like the immigration court within the Executive Branch. Director James McHenry is in a career Senior Executive position. However, his path to the position was through the new Administration, which had detailed him from his position as a relatively new Administrative Law Judge to Main DOJ as a Deputy Assistant Attorney General for a while before he became the Director. It appears that the large majority of his career otherwise was at DHS in non-managerial positions.

Successfully overseeing or managing an organization the size of EOIR with all of its challenges today would be difficult even for a seasoned executive with a lot of management experience.

The question at this time for EOIR is, How does your mission of fair adjudication of immigration cases fit within the broader immigration goals of the government? It takes deft and nuanced management to ensure the integrity of a court of independent decision-makers while maintaining responsiveness to political leaders. A good manager listens to people with expertise and is skilled at motivating others, getting the most from each employee, developing well-thought-out operational plans to reach policy goals, and even changing course if necessary. Under Director McHenry, the advice of the agency’s career executives was often not even solicited, and did not appear to be valued. His approach caused many to question the soundness of his operational decisions, and his commitment to the mission of the court, as opposed to accommodating the prosecutorial goals of DHS. I didn’t think there was as much focus on improving how we heard cases, as there was on meeting numeric goals and adjusting to the priorities of the DHS.

Asylumist: The BIA recently added six new members. All are sitting IJs and all had lower than average asylum approval rates. Do you know how these IJs were selected? What was the process?

Judge Keller: This was stunning. I can’t imagine that the pool of applicants was such that only IJs would be hired, including two from the same city. I think IJs are generally eminently qualified to be Board Members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that. At both the courts and the BIA, we used to get applicants for judge positions from academia, the private sector, BIA, and other governmental entities. More recently, we also had experienced judges and adjudicators from various other administrative systems, the military, and state and local courts applying to be IJs. I find these recent BIA hires to be very unusual.

I do not know the process for selection, but suspect that Board Chairman David Neal* had minimal input into these hires. I find this scenario very odd.

* Note: Since this interview took place, the Chairman of the BIA, David Neal, left his position and retired from the federal government. Before serving as Chairman of the BIA, David Neal held many other leadership positions at EOIR over many years, including the Vice-Chairman of the BIA and Chief Immigration Judge.

Asylumist: EOIR has made some moves to decertify the IJ union. Do you know why? What do you think about this?

Judge Keller: This happened after I left, but of course, it is easier to run an organization without people questioning you. Good managers recognize that you want opposing viewpoints. Maybe I am biased because I was a union officer, but I was also a manager longer than I was a union leader, and I’ve seen both sides. When I first learned that attorneys and judges were unionized, I was surprised, but I have seen the value of that. As a manager, the union is a great source of information. There are inherent conflicts between management and any union, but the union often has goals similar to those of management. The relationship between a union and management must be carefully developed, managed, and maintained. In the end, I felt it was worth the extra effort.

Now, I think management is more comfortable without public questions. I think decertifying is a mistake, particularly now when there are so many other changes that demand focus.

Asylumist: When he was Attorney General, Jeff Sessions gave a speech to EOIR where he claimed that most asylum cases were fake. This is also a line we frequently hear from the Trump Administration. What was your opinion of that speech?

Judge Keller: I think you may be referring to a press conference the Attorney General held at EOIR in October 2017. In a speech that day, the Attorney General said that the asylum system was “subject to rampant abuse and fraud.” That was disheartening. Fraud is not a factor in the large majority of cases. We know about fraud and we have been dealing with it probably since the inception of the immigration court. But it is not true that overwhelming numbers of asylum seekers are coming to immigration court trying to fraudulently obtain benefits. Whether the majority of their claims ultimately lack merit is a different question. But it is the very fact that we have a robust system to examine and decide asylum claims that makes our country a role model to others. I do not think statements like that made by the Attorney General are helpful to the court’s credibility. If IJs had that speech in mind in court, they would be labeled as biased, and bias is not a good thing for a judge or a court.

For the current Administration, I think there is an underlying skepticism about the extent to which the system is being manipulated. The process is indeed imperfect. But if you think that there are inappropriate “loopholes,” then we need to fix the law or the process. That is why comprehensive, or at least extensive, immigration reform has been discussed for so long. The Attorney General articulated some potential improvements he wanted to make, but also unfortunately focused in that speech on fraud and abuse, as if it was a problem greater than I believe it is.

When I would give my speech to new IJs, I would tell them that they would see the best and the worst of human nature in immigration court. As an IJ, you see persecutors and those who were persecuted; courageous individuals and liars. It is a huge responsibility. Therefore, you can’t go into court as an IJ and be thinking either that everyone is telling the truth, or that everyone is manipulating the process. You have to have an open, yet critical mind. It seems to me that Attorney General Sessions did not have a full appreciation for our particular role. This again brings us back to the idea of an Article I court, or some other solution to solidify the independence of immigration court adjudicators.

Asylumist: What do you think should be done about asylum-decision disparities? Does something need to be done?

Judge Keller: Yes. I think that asylum decision disparities should be evaluated by immigration court managers as they may be a sign of an underlying problem that may need to be addressed. However, I do not believe that they can or should be entirely eliminated.

If a judge is significantly out of line with his or her colleagues in the local court, it might be a red flag. Sometimes, simple things impact grant rates. For example, did the IJ miss some training in a particular area and is that affecting the grant rate? Is the judge assigned or does a court have a docket that by its nature (detained, criminal) will result in a higher or lower grant rate? Court managers should be alert to and manage those issues.

We’ve been looking at this issue for a long time. I remember talking about it with many EOIR leaders and judges over the last 10 years. But each case is different from the next and you don’t want decisions on asylum made according to mathematical formulas as if by computers. Decisions on such important human matters should be made by people who know the legal requirements, and can exercise sound judgment.

One way we thought about addressing seemingly significant disparities was temporarily assigning IJs with high or low grant rates to courts where the grant rates are different. Sometimes, the best way to evaluate your own opinions is to think through them with people who have different views. The hope was that judges would have the time and opportunity to reflect on their approach to asylum.

Once, former Director Osuna and I went to Chicago to visit the judges of the Seventh Circuit, which was at the time highly critical of our judges. We met with several of the Circuit Judges and talked about many things, including disparities in immigration court. We explained our approach to disparities, namely, addressing training needs, addressing any inappropriate conduct via discipline, and improving resources. One of the Circuit Judges mentioned that he was appreciative of our approach, and suspected that if anyone looked at it, there are probably similar disparities at the circuit court level too. As long as human beings are deciding immigration cases, there will always be some disparities. However, significant disparities should be evaluated and action taken only if the disparity is the result of something inappropriate, that is, something other than the proper exercise of independent legal judgment.

Asylumist: What is your hope for the future of EOIR?

Judge Keller: I hope EOIR can hold onto its core focus of hearing and deciding cases fairly and impartially. I also hope that the parties in the process know that we are listening to them. Parties in any court should feel that they’ve received a fair shake and a fair decision. They should understand the reasons why their cases were decided a certain way, and should not have to wait for years to get resolution. That is our reason for being – to deliver that service.

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

Sorry, MaryBeth, but for many of the reasons you so cogently point out, the “EOIR we once knew” is gone forever. You have accurately described the “maliciously incompetent” politicized mis-management that has put EOIR “at war” with its sole Due Process mission, with migrants, particularly targeting the most vulnerable asylum applicants, and with the courageous lawyers trying to represent them in an intentionally hostile environment.

The good news is that the New Due Process Army will eventually win this war, and that EOIR will be abolished and replaced by an independent court system focused on Due Process and incorporating the values of fairness, scholarship, timeliness, respect, and teamwork.

PWS

10-16-19

WELCOME TO A NEW BRIGADE OF THE NEW DUE PROCESS ARMY: Justice Action Center! — Litigate, Litigate, Litigate — Constantly Confront Complicit Courts 4 Change!

Karen Tumlin
Founder
Justice Action Center

Karen Tumlin, Founder

Karen Tumlin is a nationally recognized impact litigator focusing on immigrants’ rights. She successfully litigated numerous cases of national significance, including a challenge to the Trump Administration’s effort to end the DACA program and the Muslim Ban, as well as the constitutional challenge to Arizona’s notorious anti-immigrant law, SB 1070. She formerly served as the Director of Legal Strategy and Legal Director for the National Immigration Law Center, where she built a legal department of over 15 staff who developed and led cases of national impact.

Contact Karen: karen.tumlin@justiceactioncenter.org

https://justiceactioncenter.org/

A Brief Description of JAC

Justice Action Center is a new nonprofit organization dedicated to fighting for greater justice for immigrant communities by combining litigation and storytelling. There is tremendous unmet need in the litigation landscape for immigrant communities. JAC is committed to bringing additional litigation resources to bear to address unmet needs in currently underserved areas. There is also untapped potential in how litigation can be combined with digital strategies to empower clients and change the corrosive narrative around immigrants. Communications content around litigation that focuses primarily on putting forward legal voices to talk about immigrants does not have the same authentic voice as putting forward immigrants as the protagonists. JAC will focus on the creation of original content that amplifies immigrant voices. We believe that real change will come only when a larger base of supporters are activated on immigration issues—only then will courthouse wins pave the way for lasting change. JAC will partner with direct service providers and organizers to leverage the power of the existing landscape of immigrants’ rights organizations and also to fill in holes where impact litigation should be brought (but currently isn’t), or where communications and digital expertise could help reshape the narrative around immigration and immigrants.

The Problem

Urgent, Unmet Legal Need in the Immigrants’ Rights Field

Impact litigation has been an essential tool in blunting the Trump administration’s abuses against immigrants—but capacities are stretched thin and deployed unevenly. As a result, important civil rights abuses are going unchallenged.

Lawsuits attract media attention at key moments, but little planning is done to drive the narrative. Deliberate, client-driven communications plans are needed to maximize these moments to engage new audiences on immigration

Unequal Treatment

Precious impact litigation resources are currently being spread unevenly. While there is a deep bench of attorneys ready to take on high-profile issues, such as the termination of DACA or the latest asylum ban, other issues appear to have no legal advocacy. Examples include the massive worksite raids in underserved states such as Ohio and Texas or the severe abuses immigrants face in the nation’s vast detention system.

Underrepresented in Digital Media

There is a paucity of original, immigrant-centered digital content. The nation’s narrative no longer has to be set only by policymakers—it can be shaped by everyday people, including immigrants. We have not harnessed the power of the current digital landscape to promote pro-immigrant messages and engage new audiences.

JAC’s Solutions

1. Litigate on topics and in locations of unmet need.

2. Create original, immigrant-centered content designed to activate new audiences

3. Partner with direct services providers and organizers to elevate movement impact.

Get Involved

You can be part of helping build Justice Action Center.

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Welcome Karen and the JAC to the fight for Due Process, fundamental fairness, and human decency! Nothing less than the survival of our nation, and perhaps civilization, is at stake here!

The litigation angle is so critically important to this all-out war! The Federal Appellate Courts, and particularly the Supremes, have been largely complicit in Trump’s White Nationalist attack on the Rule of Law. There is no excuse whatsoever for the continuing unconstitutional outrages against individuals being committed by a biased Immigration Court System unlawfully controlled by biased and corrupt politicos.

Would a Federal Appellate Court Judge or a Supreme Court Justice agree to be tried for his or her life in a “court” before “judges” controlled by their prosecutor? Of course not! So why is it “Constitutionally OK” for asylum seekers and other vulnerable individuals to be “tried” (often without lawyers or even “in absentia”) by “judges” controlled by Trump, Barr, and indirectly McAleenan? Why it “Constitutionally OK” for individuals whose only “crime” is asserting their legal rights to be detained indefinitely (sometimes until death) in conditions that would be held unconstitutional in an eyeblink if applied to convicted criminals?

Think I’m making this up? Check out he dissent by Justice Sotomayor (joined by Justice Ginsburg) in Barr v. East Side Sanctuary Covenant. There, seven of her spineless colleagues didn’t even bother to justify their decision lifting a lower court stay of a grotesque attack by the Trump Administration on the legal rights (and lives) of asylum seekers that violated the Constitution, a host of statutes and regulations, and international standards. Not only that, but it also enables a lawless Solicitor General to continue to cynically “short-circuit” the legal system and go directly to what Trump and his followers (contemptuously, but apparently correctly) believe to be a thoroughly compromised Supreme Court. https://immigrationcourtside.com/2019/09/11/supreme-tank-complicit-court-ends-u-s-asylum-protections-by-7-2-vote-endorses-trumps-white-nationalist-racist-attack-on-human-rights-eradication-of-refugee-act-of-1980/

These consequences aren’t “academic.” Innocent individuals, including children, will die, be tortured, or have their lives ruined by the Supremes’ abdication of duty and abandonment of human decency. https://immigrationcourtside.com/2019/09/20/profile-in-judicial-cowardice-article-iiis-dereliction-of-duty-leaves-brave-asylum-applicants-and-their-courageous-attorneys-defenseless-against-racist-onslaught-by-trump-administration/.

Undoubtedly energized by this exercise in “Supreme Complicity,” the Trump Administration has released a dizzying barrage of new attacks on the legal rights and humanity of migrants of all types, from asylum seekers to green card holders and immigrant visa applicants, in the weeks following East Side Sanctuary.

Or, check out this dissenting statement of Eleventh Circuit Judge Adelberto Jose Jordan in Diaz-Rivas v. U.S. Att’y Gen.:

In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. See City of Miami, 614 F.2d at 1339. If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.

So what’s the result of the Eleventh Circuit majority’s cowardly abandonment of the Fifth Amendment? In a spectacular “in your face” move undoubtedly meant to play on the spineless response of the Eleventh Circuit to the “Asylum Free Zone” created in the Atlanta Immigration Court, Billy Barr actually promoted two of the Atlanta judges with the highest asylum denial rates, renowned for their rude and disrespectful treatment of asylum applicants and their lawyers, to the Board of Immigration Appeals as part of his “court packing scheme” to promote worst practices and anti-asylum bias.

In other words, as a consequence of the Eleventh Circuit’s spineless complicity in the face of clear Due Process violations, these unqualified judges have now been empowered to abuse and refuse asylum applicants from coast to coast. Judicial corruption and complicity has real human life consequences for those trying to just survive below the “radar screen” of exalted overprivileged Ivory Tower Federal Appellate Judges.

The Ninth Circuit’s illegal “greenlighting” of the deadly “Let ‘Em Die in Mexico” program in Innovation Law Lab v. McAleenan is another egregious example of U.S. Court of Appeals Judges abandoning their oaths of office (and writing complete legal gibberish, to boot).https://immigrationcourtside.com/2019/05/07/fractured-9th-gives-go-ahead-to-remain-in-mexico-program-immigration-law-lab-v-mcaleenan/.

Every time an Appellate Judge signs off on a removal order produced without a fair and impartial adjudication in the unconstitutional Immigration Courts he or she is violating their oath of office. We’ve had enough! Why have life-tenured judges if they won’t stand up for our individual rights? It’s time to put an end to this cowardly judicial complicity in violation of our fundamental Constitutional rights (not to mention a host of statutory and regulatory violations that go unchecked in Immigration Courts every day).

That’s where the “5 C’s” come into play: Constantly Confront Complicit Courts 4 Change!

At the same time, make an historical record of those judges who “stood small” in the face of Trump’s vicious and corrupt assault on our Constitution and our democratic institutions, not to mention the lives and well-being of vulnerable migrants!

PWS

10-05-19

MEET THE PRESS: NAIJ President Hon. A. Ashley Tabaddor & Others Appear @ National Press Club To Explain Need For Independent Article I U.S. Immigration Court In Light Of Trump Administration’s All-Out Assault On Due Process!

Dear NAIJ Members,

On Friday, September 27, 2019, the National Press Club (NPC) convened a Headliners “Newsmaker” Press Conference entitled “Immigration Courts in Crisis.” Moderated by NPC President and award-winning AP Washington Investigations Editor journalist Alison Fitzgerald Kodjak, the panel presentation explored sweeping and controversial changes in the nation’s Immigration Courts. The presentations were led by NAIJ President Ashley Tabaddor, followed by the ABA President Judy Perry Martinez, and the American Immigration Lawyers Association (AILA) Second Vice President Jeremy McKinney. The trio expressed broad consensus around key concerns undermining the independent decision making authority of Immigration Judges and compromising the integrity of the court.

Judge Tabaddor honed in on the specifics of how the decisional independence of judges and the independence of the court is under attack by the Department of Justice through their actions ranging from the imposition of unrealistic and unreasonable quotas and deadlines to the recent announced DOJ regulation, effective immediately, which collapsed into a single individual the role of the chief policy director with the role of the chief appellate judge. The EOIR Director was previously prohibited from engaging in any judicial role over cases because of the political nature of the position, but has now been given authority to interfere in individual cases, direct the result of cases, and to sit as an appellate judge over immigration judge decisions. Judge Tabaddor also reported on Friday’s filing of two unfair labor practice petitions against the Department of Justice with the Federal Labor Relations Authority. The ULPs stem from the Agency’s efforts to decertify the Association under the guise of reclassifying the Immigration Judges as managers and policy-makers and its subsequent personal attacks on the Association leadership from the podium of the Department of Justice.

ABA President Perry Martinez (Judy) was a powerful voice on a number of important issues ranging from support for fair proceedings and the rule of law to the importance of effective representation for individuals in removal proceedings.

Finally, AILA Vice President McKinney (Jeremy) reported on the impact of the “tent” courts that have been shrouded in secrecy with wholly inadequate operational logistics related to attorney access. He said, “DHS not only has complete control over access to these facilities, but DHS also has complete control over attorney/client representation when migrants are on the U.S. side of the border.” He explained that the program creates insurmountable hurdles to attorney representation, and as a result, as of the end of June, only 1.2% of asylum seekers had been able to obtain counsel.

The three speakers were aligned in the NAIJ’s call for a lasting solution to these and other problems plaguing the Immigration Court system — legislative action to restructure the courts in a manner offering independence from the Department of Justice, and the creation of an independent Article I Immigration Court.

Several national and local news outlets, including the Wall Street Journal, the New York Times, CNN, and others, were present and have reported on the event. To watch the press conference, see:

https://spaces.hightail.com/receive/RRowcRdtrK

For a sampling of the articles, please check out the NAIJ website at:

https://www.naij-usa.org/news

If you have any questions or comments, or if you would like to have copies of the ULPs or Judge Tabaddor’s remarks, please feel free to reach out to Judge Tabaddor directly atashleytabaddor@gmail.com.

Sincerely,

Your NAIJ Executive Board

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

Keep up the fight!

Every day, the Trump Administration is further reducing the Immigration Courts to “Kangaroo Courts” while Congress and the Article IIIs shirk their respective duties to protect Due Process!

PWS

10-03-19

WHILE IMPOTENT CONGRESS & FECKLESS ARTICLE IIIs TURN THEIR COLLECTIVE BACKS: THINK THAT U.S. IMMIGRATION COURT HASN’T BECOME “CLOWN COURT” WITH POTENTIALLY DEADLY CONSEQUENCES? – Try This Out For Size: “Border Patrol Agents Are Writing ‘Facebook’ As A Street Address For Asylum-Seekers Forced To Wait In Mexico: ‘It’s wild…People are having to make things up as they go along.’”

https://www.buzzfeednews.com/article/adolfoflores/asylum-notice-border-appear-facebook-mexico

Adolfo Flores reports for BuzzFeed News:

An asylum-seeker from Honduras who presented himself at the southern border this summer seeking protection was forced to wait in Mexico until his court date in the United States. In case the government needed to contact him, a Border Patrol officer listed an address on his forms: “Facebook.”

The man, who asked to only be identified by his last name Gutierrez, told BuzzFeed News that shortly before he was sent back to Mexico along with his family, a Border Patrol agent asked him to confirm that a shortened version of his name was indeed the one he used on Facebook.

“I said ‘Yes, why?'” Gutierrez recalled. “The agent told me ‘Because that’s how we’re going to send you information about your court case.’ I thought that was strange, but what could I do?”

The form Gutierrez was given, called a Notice to Appear (NTA), is a charging document issued by the Department of Homeland Security that includes information on where an immigrant must present themselves for their first court hearing, and critically, should include an address where the applicant can be contacted if the time, date, or location of the hearing is changed.

If an immigrant fails to appear at court hearings they run the risk of being ordered deported in absentia by an immigration judge, which makes having accurate and detailed information on the forms crucial for asylum-seekers.

Gutierrez said he was never contacted about his case via Facebook and it’s unclear how DHS officials would contact an immigrant via social media.

A US Customs and Border Protection (CBP) spokesperson did not respond to questions about why an agent would write “Facebook” as a known address, or whether the agency was using immigrants’ social media accounts as a way to inform them of any changes or updates to their hearings.

Attorneys and advocates working with asylum-seekers at the border, including those forced to wait in Mexico under the Trump administration’s Migrant Protection Protocols (MPP) said they’ve seen other notices with “Facebook” addresses, or no address at all.

“‘Facebook’ is the most egregious example of the Department of Homeland Security doing away with the aspect of proper notice,” Leidy Perez-Davis, policy counsel at the American Immigration Lawyers Association told BuzzFeed News. “Facebook is not an adequate way to serve an NTA.”

Perez-Davis said she’s heard from other attorneys who had viewed documents from immigrants with improper or inadequate addresses such as shelters, which are often already full or only allow immigrants to remain there for a few days. Asylum-seekers are often given initial US court dates months in the future.

“This is procedurally incorrect, but DHS has been doing it anyway because there hasn’t been oversight on insufficient NTAs,” Perez-Davis said.

An immigrant in Migrant Protection Protocols (MPP), shows documents to a US border agent at Paso del Norte border bridge to attend a court hearing for asylum seekers.In June 2018, the Supreme Court ruled that an immigrant’s notice to appear was invalid because it didn’t have the date or location of his scheduled court appearance. Attorneys have pointed to the ruling to argue that NTAs with inadequate information should also be invalid.

The Trump administration policy, also known as “Remain in Mexico,” has seen more than 47,000 asylum-seekers sent back to the country, straining local resources that help immigrants in the border communities. In addition to facing violence, kidnappings, and discrimination, some immigrants live on the streets and rely on donations to feed themselves.

If an immigrant receives an improperly addressed notice to appear, they can challenge whether it was legally serviced in court, Perez-Davis said, giving an immigrant the chance to reopen their case if they do not appear at their scheduled hearing and are ordered removed in their absence.

“It goes back to the issue of due process,” Perez-Davis said. “They can’t initiate proceedings without telling someone the details of the proceedings.”

Zoe Bowman, a law student who interned with Al Otro Lado, a binational border rights project and legal service provider, said she saw at least five immigrant NTAs that had “Facebook” listed as the known address. The first of which she saw in May or June of this year.

“It’s wild,” Bowman told BuzzFeed News. “Some wouldn’t have any addresses listed at all.”

The US asylum process is not set up for cases to be fought from Mexico, making the issue uncharted territory for the US government, immigrants, and attorneys, Bowman said.

“The issues with the NTAs is just one branch of that,” Bowman said. “People are having to make things up as they go along.”

Many of the other asylum-seekers returned to Mexico along with Gutierrez left for their home countries almost immediately. Gutierrez tried to wait for his court date, but only lasted three weeks in Tijuana. Facing a months-long wait for their first court hearing without money or space in a shelter, Gutierrez said he decided to go back to Honduras with his family.

“Tijuana is dangerous, I can’t be traveling with my family to the bridge at 4 a.m.,” Gutierrez said of the early hour he was expected to appear at a border crossing for his hearing. “We were in Mexico without money or a place to stay, I couldn’t make my daughter suffer through that.”

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

Yup! This won’t go down as one the finest moments for America, the Executive, the Article III Courts, or any of the folks involved in implementing what can only be termed a program of blatantly illegal and overt human rights abuses.

Those of us fighting for our Constitution, human life, and the true rule of law appear to be losing the battle for the time being, given the cowardly and inept performances of those few institutions like Congress, the Supremes, and Article III Appellate Courts who could put an end to these travesties and require reform and compliance with the Constitution and the rule of law respecting treatment of refugee applicants.

But, we are making a legal and historical record of who stood up for human rights and who planned, executed, and enabled what can only be termed “crimes against humanity.”

This week’s coveted “Five Clown Award” goes jointly to the Supremes and Congress for their joint catastrophic failure to put an end to this illegal nonsense and reestablish Due Process and the Rule of Law.

🤡🤡🤡🤡🤡

PWS

09-27-19

MICHELLE HACKMAN @ WSJ: Immigration Judges’ Union Fights Back Against DOJ’s Heavy-Handed Attempt To Quash It! – Like The “Whistleblower,” The NAIJ Has Been Outspoken In Exposing Bias, Denial Of Due Process, & Improper Politization Of U.S. Immigration Courts By Corrupt DOJ!

https://apple.news/APq7A4ihtTZ280UVWJnfkNg

From the WSJ:

By Michelle Hackman

September 27, 2019, 10:00 a.m. EDT

WASHINGTON—The union representing the nation’s more than 400 immigration judges filed a labor complaint against the Justice Department, escalating an already tense situation between the Trump administration and the judges carrying out its immigration policy.

The judges—who unlike most other jurists work for the Justice Department—based their complaint on two recent incidents.

The most recent occurred in late August, when the Executive Office of immigration Review, which oversees the judges, included a link to a blog post on a white nationalist website in its daily news briefing emailed to all employees. The blog post in question described immigration judges using several racial and ethnic slurs, angering judges around the country and prompting a formal letter to the office’s director.

The other incident came in April, when the union sought clarification from the Justice Department on whether the judges’ positions made them regular employees or managers in the course of contract negotiations. The Justice Department didn’t respond to the query but later filed a petition with the Federal Labor Relations Authority to decertify the union, on the basis it considered the judges managers.

The union’s complaint was filed with the Federal Labor Relations Authority, and could slow the Justice Department’s attempts to disband the union.

The judges’ union, known formally at the National Association of Immigration Judges, allows its leadership to fill a unique role as government employees empowered to criticize their employer and, by extension, the administration’s immigration policies.

The union has been outspoken about the government’s efforts to exert increasing political control over the nation’s immigration court system, narrowing the judges’ discretion around who can qualify for asylum.

Attorney General William Barr, for example, overruled the Board of Immigration Appeals in deciding people with family ties to gang targets or others with domestic violence claims couldn’t qualify for asylum. More recently, the administration has been temporarily allowed to enforce a rule disqualifying anyone for asylum if they traveled through a third country en route to the U.S. The rule faces further court challenges.

In its effort to move more quickly through a backlog of pending cases that has grown to more than one million, the Justice Department has also placed new quota requirements on the judges. It has pressed individual judges to move through cases faster, giving judges a one-year deadline to decide each case and setting a 700-case annual quota. Only about a third of judges are on track to meet that goal, according to A. Ashley Tabaddor, the union’s president.

The administration has also begun shifting cases to judges known to work quickly, sometimes handing cases to courts located far from where an immigrant is living. More recently, it has also begun diverting some judges from their normal duties to hear cases of the government’s “remain in Mexico” program, under which migrants who have claimed asylum must wait in Mexican cities while their cases make their way through the courts.

The government has set up makeshift tent courts at ports of entry to process these cases more quickly, and judges have been hearing cases using a videoconferencing tool. These courts, unlike most others in the country, aren’t open to the public or to journalists.

The union rebuked the tent courts’ closed conditions as “another glaring reason why the immigration courts have been deprived of key characteristics of what it means to be a court in the United States.”

The union has also argued that immigration courts should be given judicial independence, rather than answering to the Justice Department’s political leadership.

Write to Michelle Hackman at Michelle.Hackman@wsj.com

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Thanks, Michelle, for bringing into the national spotlight this important story about the DOJ’s improper influence over the U.S. Immigration Courts and their outrageous attempts to suppress and punish truth and dissent.

We need an independent Article I U.S. Immigration court enacted by Congress. Until that happens, vulnerable individuals will continue to have their most important rights denied by this unconstitutional parody of a fair and impartial court system. In the meantime, the Article III Courts continue to ignore the glaring constitutional defects that must be addressed before approving any more defective “removal orders” and denials of asylum and other relief emanating from these fatally defective “captive courts” that have been “redesigned” to function as part of the DHS enforcement apparatus.

PWS

09-27-19

CELEBRATE A “MALICIOUS INCOMPETENCE” MILESTONE! — Under Trump, Sessions, & Barr, Immigration “Courts’” “Active Backlog” Hits Million Case Mark! — 1,007,005 As Of August 31, 2019, Per TRAC, With Another 322,055 “Gonzo Specials” In Waiting! — Congress Take Note: More Judges = More Backlog Under Trump’s DOJ!

https://trac.syr.edu/immigration/reports/574/

==========================================
Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

The Immigration Court’s active backlog of cases just passed the million case mark. The latest case-by-case court records through the end of August 2019 show the court’s active case backlog was 1,007,155. If the additional 322,535 cases which the court says are pending but have not been placed on the active caseload rolls are added, then the backlog now tops 1.3 million.

During the first eleven months of FY 2019, court records reveal a total of 384,977 new cases reached the court. If the pace of filings continues through the final month of this fiscal year, FY 2019 will also mark a new filing record.

While much in the news, new cases where individuals have been required to “Remain in Mexico” during their court processing currently make up just under 10 percent (9.9%) of these new filings. These MPP cases comprise an even smaller share – only 3.3 percent — of the court’s active backlog.

As of the end of August, a total of 38,291 MPP cases had reached the court, of which 33,564 were still pending.

For the full report – including links to online query tools where readers can drill into countless additional details covering all 4.5 million court filings since FY 2001, the recent MPP component of these filings, and the court’s over 1 million active case backlog – go to:

https://trac.syr.edu/immigration/reports/574/

Additional free web query tools which track Immigration Court proceedings have also been updated through August 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:

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

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

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

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

http://facebook.com/tracreports

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

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

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

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

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The futility of throwing more money into this badly broken system has become obvious. Without an independent, Article I U.S. Immigration Court, run by judges who direct the activities of the administrators rather than being run by politicos, there simply will not be any semblance of competent professional management of this system, certainly not under this Administration.

The Administration stubbornly refuses to take the necessary step of responsibly exercising “prosecutorial discretion” to reduce the backlog to a manageable size without “gimmicks.”

It’s equally obvious that Congress needs to enact some type of realistic legalization program that will remove cases of individuals with a period of productive residency and their families from the “active” docket and forestall the further mess that would be created by the absolute insanity of the “Gonzo plan” of restoring properly “administratively closed” cases to the active dockets.

The system is calling out for help. Unfortunately, those cries are being ignored by both Congress and the Article III Courts who are the only ones currently capable of fixing the system.

PWS

09-18-19

Due Process Forever; Complicit (& Corrupt) Courts Never!

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At the same time, make an historical record of those judges who “stood small” in the face of Trump’s vicious and corrupt assault on our Constitution and our democratic institutions, not to mention the lives and well-being of vulnerable migrants!

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