"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: Office of Chief Immigration Judge (“OCIJ”)
Today AILA, the American Immigration Council, and 52 additional organizations sent a letter to members of Congress, urging them to establish an independent immigration court! This letter was sent in advance of tomorrow’s twitterstorm that aims to bring attention to the dysfunction in the immigration court system and call for reform.
Twitter: You can retweet AILANational’s tweet or use some of the sample tweets below.
· Click to tweet: Case-completion quotas force immigration judges to rush through cases, often at the expense of due process. This assembly-line justice is unacceptable. Read the letter @AILANational & others sent to Congress calling for independent courts. http://ow.ly/mV3730qiMW5
· Click to tweet: The Trump administration’s certification decisions have undermined due process and weakened protections for asylum seekers. Read more in this letter @AILANational and over 50 orgs sent to Congress. #JudicialIndependence http://ow.ly/mV3730qiMW5
· Click to tweet: Due process and #JudicialIndependence should never be sacrificed in the name of political expediency. Read the letter @AILANational sent with over 50 other orgs calling for the establishment of an independent immigration court. http://ow.ly/mV3730qiMW5
Sample LinkedIn/Facebook Post: Please share AILA’s Facebook post or use sample post below.
Due process and judicial independence should never be sacrificed in the name of political expediency. Read the letter AILA National sent with 50 other organizations calling for the establishment of an independent immigration court. http://ow.ly/mV3730qiMW5
You can share tweets from our social media toolkit or craft your own using the hashtag #JudicialIndependence. Looking forward to seeing you on Twitter!
It has been nearly 700 days since BakhodirMadjitov was taken to prison in the United States. He has never been charged with a crime.
Madjitov, a 38-year-old Uzbek national and father of three U.S. citizens, received a final deportation order after his applications to legally immigrate failed. He is one of the approximately 50,000 people jailed on any given day in the past year under the authority of U.S. Immigration and Customs Enforcement, the most foreigners held in immigration detention in U.S. history.
The majority of those detainees, like Madjitov, are people with no prior criminal records.
According to the latest snapshot of ICE’s prisoner population, from early November, nearly 70 percent of the inmates had no prior criminal conviction. More than 14,000 are people the U.S. government has determined have a reasonable fear of persecution or torture if deported.
Though President Trump has made cracking down on immigration a centerpiece of his first term, his administration lags far behind President Barack Obama’s pace of deportations. Obama — who immigrant advocates at one point called the “deporter in chief” — removed 409,849 people in 2012 alone. Trump, who has vowed to deport “millions” of immigrants, has yet to surpass 260,000 deportations in a single year.
And while Obama deported 1.18million people during his first three years in office, Trump has deported fewer than 800,000.
It is unclear why deportations have been happening relatively slowly.
Eager to portray Trump as successful in his first year in office, ICE’s 2017 operational report compared “interior removals” — those arrested by ICE away from the border zones — during the first eight months of Trump’s term with the same eight-month period from the previous year, reporting a 37percent increase from 44,512 to 61,094 people.
But the agency also acknowledged that overall deportation numbers had slipped, attributing the decline to fewer border apprehensions and suggesting that an “increased deterrent effect from ICE’s stronger interior enforcement efforts” had caused the change.
Administration officials this year have noted privately that Mexican nationals — who are easier to deport than Central Americans because of U.S. immigration laws — also made up a far greater proportion of the migrants apprehended along the U.S.-Mexico border during Obama’s presidency.
ICE officials say that the detainee population has swelled — often cresting at 5,000 people more than ICE is budgeted to hold — as a direct result of the influxes of migrants along the southern border, and that when ICE is compelled to release people into the United States, it creates “an additional pull factor to draw more aliens to the U.S. and risk public safety,” said ICE spokesman Bryan Cox.
“The increase in ICE’s detained population this year was directly tied to the border crisis,” Cox said. “About 75 percent of ICE’s detention book-ins in fiscal year 2019 came directly from the border.”
Immigrant advocates say the packed jail cells result from an administration obsessed with employing harsh immigration tactics as a means of deterrence. They say the Trump administration is keeping people like Madjitov locked up when they previously would have been released pending the outcomes of their cases.
ICE also is holding people longer: Non-criminals are currently spending an average of 60 days in immigrant jails, nearly twice the length of the average stay 10 years ago, and 11 days longer than convicted criminals, according to government statistics.
“ICE has sort of declared open season on immigrants,” said Michael Tan, a senior staff attorney at the American Civil Liberties Union’s Immigrants’ Rights Project. “So you’re seeing people who under the previous administration would have been eligible for bond and release being kept in custody.”
ICE officials say that they are enforcing a set of laws created by Congress and that the agency is working to take dangerous criminals off the streets. At a fiery White House briefing in October, acting ICE director Matthew Albence spoke of agents “unnecessarily putting themselves in harm’s way” on a daily basis to remove foreign nationals who might cause harm to U.S. citizens. ICE Assistant Director Barbara Gonzalez spoke of having to “hold the hand of too many mothers who have lost a child to a DUI, or somebody else who’s been raped by an illegal alien or someone with a nexus to immigration.”
Most of those in immigration detention are neither hardened criminals nor saints. They are people who overstayed their visas, or whose asylum claims failed. They are people who struggled to navigate a complex immigration system, or who never tried at all, or who made critical mistakes along the way. They tend to be poor, luckless and lawyerless, advocates and researchers say.
A November snapshot of ICE’s prisoner population showed that approximately 68percent had no prior criminal conviction. According to the agency’s deportation data, one of the most common criminal convictions is illegal reentry.
Cox said that all ICE detainees are “evaluated on a case-by-case basis based upon the totality of their circumstances” and that those kept in detention are “generally those with criminality or other public safety or flight-risk factors.”
With ICE’s release of 250,000 “family units” apprehended along the border, the agency released 50percent more people in fiscal 2019 than in the previous year, Cox said.
Low priority for deportation
Madjitov was born in 1981 into a family of musicians in Tashkent, Uzbekistan, which was then part of the Soviet Union. His father taught him to play the karnay, a long, hornlike instrument, and he joined an ensemble of traditional musicians.
The family was religious, and as a young man in 2005, Madjitovjoined thousands of others in a mass protest of the brutal regime of Uzbek President Islam Karimov, who was infamous for his persecution of political dissidents and the devout. Government forces opened fire on the crowds, killing hundreds, and they arrested scores of others, including Madjitov. After being released from prison weeks later, Madjitov resolved to leave Uzbekistan.
A music festival in Austin several months later provided the ticket out. Madjitov and a dozen other folk musicians landed there in 2006, on P-3 temporary visas for entertainers.
He traveled from the festival to live with friends — other Uzbek immigrants — in Kissimmee, Fla. He found a job working at a Disney hotel and applied for asylum.
His application was rejected, so he appealed it. And when the appeal was rejected, he appealed that, his case bumping along through the dense bureaucracy with hundreds of thousands of others.
Madjitov received a final order of removal in 2011. But with no criminal conduct on his record, he was deemed a low priority for deportation by the Obama administration.
Ten years after Madjitov’s arrival, President Trump came to office on a vow to deport “criminal illegal aliens,” the murderers, rapists and gang members who Trump claimed were gaming the immigration system, preying on U.S. citizens and their tax dollars.
Madjitov was taken into custody in 2017.
“My family, myself, we never did anything wrong,” Madjitov said in a phone interview from the Etowah County Detention Center in Alabama, where he is being held, a thousand miles from his family in Connecticut. “That’s why we chose to stay in this country, because of the freedom.”
After nearly three years in office, Trump has made good on part of his promise. Between Oct.1, 2018, and the end of September, the administration initiated more than 419,000 deportation proceedings, more than at any point in at least 25 years, according to government statistics compiled by Syracuse University’s Transactional Records Access Clearinghouse.
Unlike under Obama, deporting the migrants has proved more difficult. Many of those crossing the southern border have requested asylum, which entitles them to a certain amount of due process in the immigration court system — protections that the administration also is working to dismantle.
Immigrant advocates believe the system has become overwhelmed because of the administration’s zeal to deport, even though in many cases it lacks the resources or legal standing to do so.
“The Obama administration, because they had enforcement priorities, were able to streamline deportations,” said Sophia Genovese, an attorney with the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative. “The Trump administration is making it harder for people to obtain visas or legal status, and at the same time their deportation priority is everyone. So because of that, they clog the system.”
Most of the serious criminals slated for deportation come to ICE by way of the criminal justice system, according to ICE and defense lawyers. Convicted murderers or drug offenders finish their sentences in state or federal prisons and then are transferred into ICE’s custody.
In Georgia, lawyers say they have noticed a ballooning number of immigrants who have no criminal records but have been pulled into ICE detention because of violations such as driving without a license or without insurance. They include victims of domestic violence and speakers of Central American indigenous languages, Genovese said.
“It’s been really difficult to provide them with representation,” she said. “In court, their cases aren’t being translated. And a lot of them are just giving up.”
In 2018, a federal judge granted a preliminary injunction in a class-action lawsuit filed on behalf of AnslyDamus, a Haitian ethics professor who claimed asylum but was kept in ICE detention for two years afterward despite not having a criminal record or posing a flight risk. U.S. District Judge James E. Boasburg recognized that such people normally would have been “overwhelmingly released,” and prohibited five ICE field offices from denying parole without individual determinations that a person poses a flight risk or danger to the public. Tan said the ACLU is now monitoring ICE’s compliance with the injunction and is seeing mixed results.
‘All of them are fighting their cases’
The U.S. government might have valid reasons to be suspicious of Madjitov, but officials declined to say what they are.
According to federal court filings that do not name Madjitov, his wife’s brother, also an Uzbek immigrant, traveled to Syria in 2013 to join the al-Nusra Front, an extremist group with ties to al-Qaeda. SaidjonMamadjonov was killed shortly thereafter. And the FBI later accused Madjitov’s other brother-in-law, SidikjonMamadjonov, of hiding what he knew about Saidjon’s death during interviews with federal investigators.
But no one ever accused Madjitov or his wife, MadinaMamadjonova, of wrongdoing.
The couple settled in Windsor, Conn., where Madjitov worked as a home health aide and Mamadjonova gave birth to two boys.
Madjitov planted a garden of tomatoes, cucumbers, eggplant and apple trees in the family’s yard. On Fridays, they would go to the mosque together, and on weekends they would go to the park and out for pizza or Chinese food.
“I always worked with my lawyer wherever I lived — I always notified DHS where I lived, and they always gave me a work permit,” Madjitov said.
“We were a very happy couple,” said Mamadjonova, who said she has struggled to support the family since his arrest and has been battling depression. “He was very affectionate, a very kind and caring father.”
On Oct. 31, 2017, another Uzbek immigrant who claimed to have been inspired by the Islamic State terrorist group drove a rented truck onto a crowded bike path in Manhattan, killing eight people.
A few weeks later, law enforcement officials came to Madjitov’shouse searching for information about the brother-in-law who had died in Syria three years earlier. The couple said they told investigators they didn’t have anything. A month after that, on a cold December morning, ICE showed up and arrested Madjitovbecause hehad a final order of removal.
Mamadjonova said her husband was still in his pajamas when ICE asked her to go retrieve his identification documents from the bedroom. “When I came back, he was handcuffed,” said Mamadjonova, who was 39 weeks pregnant with the couple’s third child at the time. “He was crying.”
The Trump administration, which increased its removals of Uzbek nationals by 46percent in 2017, never again asked Madjitov about Saidjon or terrorism. ICE said Madjitov’s file contained no criminal record, nor was he marked as a “known or suspected terrorist.”
He is still in captivity.
ICE says that Madjitov’s crime is his failure to leave the United States after receiving a final order of removal, and that the agency is authorized to continue holding him because he refused to board a deportation flight in June 2019, when ICE tried to remove him.
The Etowah County Detention Center, where Madjitov is being held, is known among immigration attorneys as a facility that holds people ICE wants to put away for a long time. There, Madjitov is one of about 120 people in a unit, surrounded by immigrants with a shared sense of desperation.
“All of them are from different countries, from Africa, from Asia, from different religions. Most of them — like 90 percent — have families in this country. So all of them are fighting for their cases,” he said. “Every day I pray to God. Every day I’m scared they’re going to try to remove me. Every day, I have nightmares.”
Abigail Hauslohner covers immigrant communities and immigration policy on The Washington Post’s National desk. She covered the Middle East as a foreign correspondent from 2007 to 2014, and served as the Post’s Cairo bureau chief. She has also covered Muslim communities in the United States and D.C. politics and government.
As Abigail notes, the causes for the phenomenon of fewer removals under Trump are complex. But certainly, “malicious incompetence” and the screwed up “when everyone’s a priority nobody is a priority” policy of the Trump Administration, particularly the DHS, are key contributing factors.
The system is sick and dying. But,”Aimless Docket Reshuffling” is alive and well in our dysfunctional Immigration Courts.
We also should never underestimate the continuing pernicious effects of “Gonzo” Sessions’s unlawful and downright stupid decision in Matter of Castro-Tum to force more than 300,000 properly closed “low priority” cases back onto already overwhelmed dockets, thus disabling one of the few methods of rational docket control at the Immigraton Judges’ disposal.
And, last, but not least, are the feckless Federal Courts of Appeals who allow this clearly unconstitutional mess — bogus “courts” grossly mismanaged by biased, non-judicial prosecutors and politicos — to continue to violate the Fifth Amendment every day. They long ago should have put a stop to this unconstitutional travesty and forced the appointment of an independent “Special Master” to oversee the Immigration Courts and restore Due Process until Congress does its job and legislates to create an independent Immigration Court System that actually complies with the Fifth Amendment of our Constitution.
A Miami immigration judge with less than two years of experience on the bench was fast-tracked for a permanent position on the nation’s highest immigration court. The move has raised concerns about politicized hiring at the Justice Department.
Deborah Goodwin was one of six judges handpicked by Justice Department officials to fill vacancies on the Board of Immigration Appeals (BIA), a 21-member appellate court that sets binding legal precedents for more than 400 immigration judges serving in the nation’s 57 immigration courts. These six judges, who have little in common other than their markedly high rates of asylum denial, were permanently added to the board in August without undergoing any probationary period, according to documents obtained through Freedom of Information Act requests by the investigative website Muckrock.
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Memos sent to the office of Attorney General William Barr in July reveal that the Executive Office for Immigration Review (EOIR), which oversees the nation’s immigration courts, adopted new hiring procedures in March to evaluate candidates. It was “EOIR practice” to appoint a board member temporarily and require that person to complete a two-year probationary period, but the agency now believes that a sitting immigration judge has “the same or similar skills” as an appellate judge and should therefore be immediately installed permanently. The memos, obtained by Muckrock and shared with CQ Roll Call, were written by EOIR Director James McHenry.
“This is clearly a political move. There’s no question about it,” says Jason Dzubow, a D.C.-based immigration lawyer who runs the blog the Asylumist. “And there’s no way someone looking at the appearance of this can consider the hirings good for fairness in the immigration court system.”
Goodwin has a strong background in immigration enforcement: She worked as an associate legal adviser and assistant chief counsel for Immigration and Customs Enforcement. The judge, who presides over the court in Miami-Dade’s Krome migrant detention center, began hearing cases in 2017. As of the end of last year, she had an asylum denial rate of 89 percent, according to Syracuse University’s Transactional Records Access Clearinghouse. That’s far above the national average of 57 percent during the same period and almost 10 percentage points higher than the average for the Miami immigration court as a whole.
Of the six judges, Goodwin — who was appointed by former Attorney General Loretta Lynch — has received relatively little attention due to her limited time on the bench. Other appointees, such as Atlanta’s William Cassidy and Charlotte’s Stuart Couch, have been far more controversial. Cassidy, who had an asylum denial rate of 95 percent between 2013 and 2018, has been the subject of various complaints from immigration attorneys over the years. Couch, who had a rejection rate of 92 percent, issued ten rulings in 2017 that were found “clearly erroneous” by the Board of Immigration of Appeals. All ten of those of rulings involved the rejection of asylum claims by women who had been victims of domestic violence.
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In a recent interview with Dzubow, former U.S. Chief Immigration Judge MaryBeth Keller said the recent BIA hirings were “stunning.”
“I think [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,” Keller told Dzubow. “I find these recent hires to be very unusual.”
Immigration judges, and appellate judges in particular, can come from a wide range of legal and professional backgrounds, although scandals of politicized hiring have cropped up in the past. In 2008, a report by the Office of the Inspector General revealed the George W. Bush administration had engaged in illegal hiring practices for years by selecting immigration judges based on their political views. Perhaps unsurprisingly, immigration judges selected during that time were found to have disproportionately denied asylum claims.
Paul Wickham Schmidt, a former immigration judge and former head of the Board of Immigration Appeals, responded to the new appellate court appointments on his blog, immigrationcourtside.com: “The idea that six judges with asylum denial rates astronomically above the national average of 57.1% were the ‘best qualified’ for these appellate jobs is simply absurd… It seems that a Congressional investigation into the selection process would be well warranted, including a look at the qaualifications [sic] of candidates who were passed over.”
Manuel Madrid is a staff writer for Miami New Times. The child of Venezuelan immigrants, he grew up in Pompano Beach. He studied finance at Virginia Commonwealth University and worked as a writing fellow for the magazine The American Prospect in Washington, D.C., before moving back to South Florida.
OK, so I can’t spell or proofread. That’s why I’m a “gonzo journalist.” (I actually went back and corrected the spelling after seeing Manuel’s article. But, it definitely was in the original posting.)
Every time a Court of Appeals signs off on a “removal order” generated by these blatantly unconstitutional (not to mention unqualified) “courts” that violate Due Process every day in numerous ways, those Article III Judges are betraying their duties to uphold the Constitution.
Manuel’s article also sheds some light on the opaque hiring practices of the Obama Administration under AG Loretta Lynch. Not only did Lynch incompetently administer the mechanics of Immigration Judge hiring — approximately two years to fill an average IJ vacancy (ridiculous) & dozens of open positions negligently left “on the table” for Sessions — she consistently filled the courts with “go along to get along government insiders” to the exclusion of many better qualified candidates from the private bar who could have added to the dialogue much-needed scholarship (particularly in the asylum and Due Process areas) and a more practical understanding of the predicament of asylum seekers.
Of course, some Government attorneys make outstanding, fair, scholarly Immigration Judges. I recommended numerous well-qualified INS and DHS attorneys for such appointments over the years, along with many from private practice and academia. But, along the lines of what former Chief Judge Keller said, Government attorneys can’t essentially be the “sole source” of judicial appointments.
To a large extent, Sessions and Barr have “weaponized” and accelerated Lynch’s already one-sided exclusionary hiring practices. While Lynch apparently didn’t want to “rock the boat” with any possible “pushback” while she promoted some of the Obama Administration’s worst anti-asylum policies and practices, including family detention, “Aimless Docket Reshuffling,” and forcing toddlers to “litigate” in court, Sessions and Barr intend to “sink the boat” with all migrants on board!
Toxic as the GOP’s hiring practices and manipulation of the process have been under Bush and Trump, they at least understand the potential impact of who sits on the Immigration Courts and the BIA, and act accordingly. By contrast, the Democrats have been lackadaisical, at best, and inept at worst, in appointments to the Immigration Judiciary.
Under Obama, the Democrats. loved to complain that Mitch McConnell stood in the way of judicial appointments. But, given a chance to positively reshape an entire court system, perhaps the most important if least respected and appreciated courts in America, without any Congressional interference or roadblocks, they dropped the ball. And that explains lots of today’s atrocious dysfunction in the immigration justice system.
Assuming that we someday get much needed “regime change,” an independent U.S. Immigration Court must be the number one priority. The Dems could have gotten the job done in 2008. Their failure to do so has caused untold human suffering, including needless deaths, and a potentially fatal degradation of our entire justice system. Never again!
On August 16, 2019, the Executive Office for Immigration Review issued a memo limiting the types of cases that an immigration judge may place on a status docket while a noncitizen is waiting for some event to occur that will impact the removal proceedings. The policy may make it more difficult for some respondents to seek immigration relief while in removal proceedings, especially relief before U.S. Citizenship and Immigration Services. This practice advisory provides background on status dockets, describes the new policy, and provides tips for practitioners with clients whose cases are currently on a status docket or who would otherwise have pursued status docket placement but may now be found ineligible for status docket placement.
action to avoid increasing the Board’s backlog—it is critically important to make certain that all appeals are processed in a timely manner.
The Board Chairman is required to establish a case management system to manage the Board’s caseload. 8 C.F.R. 1003.1(e). The Chairman, under the supervision of the Director, is responsible for the success of the case management system. Id. The Director is further authorized, inter alia, “to ensure the efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases; to direct that the adjudication of certain cases be deferred; to regulate the assignment of adjudicators to cases; and otherwise to manage the docket of matters to be decided by the Board.” 8 C.F.R. § 1003.0(b)(1)(ii).
Although the Board has implemented a case management system pursuant to regulation, that system does not fully provide for clear internal deadlines for all phases of the pre-adjudicatory process.1 Similarly, although the regulations evince a clear directive for prompt processing and disposition by the Board, they do not provide specific deadlines for case processing prior to completion of the appellate record. Moreover, as the Department of Justice Office of the Inspector General has previously noted, the regulatory deadlines for the adjudication of appeals exclude a significant amount of pre-adjudicatory processing time, skewing the Board’s reported achievements of its goals for appeals and impeding the effective management of the appeals process. U.S. Dep’t of Justice, Office of the Inspector General, Management of Immigration Cases and Appeals by the Executive Office for Immigration Review (Oct. 2012), https://oig.justice.gov/reports/2012/e1301.pdf.
To ensure the success of the Board’s case management system and to
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network
better manage the appeals process so that cases are adjudicated promptly, it is appropriate to clearly state EOIR’s expectations regarding the timely processing of appeals. 2 To that end, it is important to have clear deadlines for the movement of cases throughout the entire appellate process, and not just for the adjudication at the end of the process. Accordingly, EOIR now issues the following guidance regarding the case management system for appellate adjudications by the Board.3
Case Processing
All case appeals are referred to the screening panel for review, and appeals subject to summary dismissal “should be promptly dismissed.” 8 C.F.R. § 1003.1(e)(1). To ensure prompt initial
1 The pre-adjudicatory process includes, inter alia, screening of notices of appeal, requesting Records of Proceedings (ROPs), ordering transcripts, serving a briefing schedule, and assigning a case for merits review once the record is complete.
2 Although the importance of timely adjudication applies to all types of appeals at the Board, the specific provisions of this PM do not apply to the processing of appeals of decisions involving administrative fines and penalties, decisions on visa petitions, decisions on the exercise of discretion by the Department of Homeland Security pursuant to INA § 212(d)(3), and decisions in practitioner discipline proceedings.
3 For timeframes that are not currently being met, EOIR understands that Board leadership recently changed and that it may take time to adjust Board practices. Nevertheless, the agency is also cognizant that the Board recently hired six new permanent Board members and is also hiring additional support staff. Consequently, EOIR expects that the Board will address inefficiencies in its appellate processing as soon as possible.
2
screening, all cases should be referred to the screening panel within 14 days of the filing of the notice of appeal to determine whether the appeal is subject to summary dismissal. Appeals subject to summary dismissal, particularly appeals subject to summary dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(G) for being untimely filed, should be dismissed within 30 days of referral to the screening panel.
In any case that has not been summarily dismissed, the Board “shall arrange for the prompt completion of the record of proceedings and transcript, and the issuance of a briefing schedule.” 8 C.F.R. § 1003.1(e)(3). Thus, to ensure prompt completion of the record for case appeals that have not been summarily dismissed, the Board should order the ROP4 if it was not previously ordered and, if appropriate, request a transcript within 14 days of referral to the screening panel.5 If a case does not require the preparation of a transcript and is not subject to summary dismissal, the Board should set and serve a briefing schedule within 14 days of referral to the screening panel. If a case requires neither the preparation of a transcript nor the service of a briefing schedule—e.g. a motion to reopen filed directly with the Board—the Board should forward the case for merits review within three days of the receipt of the ROP.
Every appeal that requires a transcript should be sent to a vendor for transcription within 14 days of referral to the screening panel. The only exceptions are situations in which there is no vendor with available capacity or if there is no available funding for further transcription.6
Upon receipt of the transcript, the Board should set and serve a briefing schedule within three days if the immigration judge’s decision was rendered in writing. If the immigration judge’s decision was rendered orally, the Board should provide the transcript of the oral decision to the immigration judge within three days of receipt of the transcript. The immigration judge “shall review the transcript and approve the decision within 14 days of receipt, or within seven days after the immigration judge returns to his or her duty station if the immigration judge was on leave or detailed to another location.” 8 C.F.R. § 1003.5(a). The Board should then set and serve a briefing schedule within three days of the immigration judge’s review and approval.
4 It is crucial that immigration courts promptly comply with requests for the ROP by the Board, and the Board may remand a case for recovery of the record if an immigration court does not forward the ROP promptly. The Board should decide whether such a remand is appropriate within 21 days of an immigration court’s failure to forward the ROP following the Board’s request. Such a remand will not be counted against an immigration judge for purposes of evaluating that judge’s performance. The Chairman shall promptly notify the Chief Immigration Judge and the Director of any immigration court that has not complied with a request for the ROP within 21 days of that request.
5 Unless the ROP contains cassette tapes requiring transcription, ordering the ROP and requesting transcription should occur concurrently within 14 days of referral to the screening panel. Transcripts are not normally prepared for the following types of appeals: bond determinations; denials of motions to reopen (including motions to reopen in absentia proceedings); denials of motions to reconsider; and interlocutory appeals. Board of Immigration Appeals Practice Manual, § 4.2(f)(ii).
6 The Chairman is directed to immediately notify the Director and the Assistant Director for the Office of Administration in any situation in which it appears that funding for transcription of all cases relative to vendor capacity is insufficient to meet the goals of this PM. Similarly, the Chairman is directed to notify the Director and the Assistant Director for the Office of Administration of any additional resource needs in order to meet the goals of this PM.
3
“In the interest of fairness and the efficient use of administrative resources, extension requests [of briefing schedules] are not favored.” Board of Immigration Appeals Practice Manual, § 4.7(c)(i). Because extension requests are not favored, they should not be granted as a matter of course, and there is no automatic entitlement to an extension of the briefing schedule by either party. Extension requests filed the same day as a brief is due are particularly disfavored and should be granted only in the most compelling of circumstances.
The case should be forwarded for merits review within three days after the expiration of the briefing schedule or the filing of briefs by both parties, whichever occurs earlier. A single Board member may summarily dismiss an appeal after completion of the record. 8 C.F.R. § 1003.1(e)(3). An appeal subject to summary dismissal because a party indicated that it would file a brief and failed to do so, 8 C.F.R. § 1003.1(d)(2)(i)(E), should be dismissed within 21 days of expiration of the briefing schedule.
The single Board member should determine the appeal on the merits as provided in paragraph 8 C.F.R. § 1003.1(e)(4) or (e)(5), unless the Board member determines that the case is appropriate for review and decision by a three-member panel under the standards of 8 C.F.R. § 1003.1(e)(6). The single Board member should determine whether the case should be referred to a three-member panel within 14 days of referral of the case for merits review, and the Board should assign the case to a three-member panel within three days of the single Board member’s determination.7 If a case is assigned to a three-member panel, a decision must be made within 180 days of assignment. 8 C.F.R. § 1003.1(e)(8)(i). If a case is not assigned to a three-member panel, the single Board member shall adjudicate the appeal within 90 days of completion of the record on appeal. Id.
The Chairman may grant an extension of the 90 and 180-day deadlines of up to 60 days in exigent circumstances. 8 C.F.R. § 1003.1(e)(8)(ii).8 “In rare circumstances,” the Chairman may hold a case or cases and suspend the 90 and 180-day deadlines to await an impending decision by the Supreme Court, a U.S. Court of Appeals, or an en banc Board decision or to await impending Department regulatory amendments. 8 C.F.R. § 1003.1(e)(8)(iii).9 The Chairman shall provide a monthly report of all cases in which an extension was granted due to exigent circumstances and all cases being held pursuant to 8 C.F.R. § 1003.1(e)(8)(iii).
Any appeal not adjudicated within the regulatory time frames shall be handled in accordance with 8 C.F.R. § 1003.1(e)(8)(ii). The Chairman shall provide a monthly report of all cases which have exceeded these time frames.
Overall, absent an exception or unique circumstance provided for by regulation or this PM, no appeal assigned to a single Board member should remain pending for longer than 230 days after
7 A single Board member retains the ability to later decide that a case should be assigned to a three-member panel if circumstances arise that were unknown at the time of the initial determination that such assignment was not warranted.
8 Additionally, the 90 and 180-day deadlines do not apply to cases in which the Board holds an adjudication of the appeal while awaiting the results of identity, law enforcement, or security investigations or examinations. 8 C.F.R. §§ 1003.1(d)(6) and (e)(8)(i).
9 As a matter of policy, the Chairman may also defer adjudication of appeals under 8 C.F.R. § 1003.1(a)(2)(i)(C) to await an impending decision by the Attorney General.
4
filing of the notice to appeal, and no appeal assigned to a three-member panel should remain pending for longer than 335 days after filing the notice of appeal. The Chairman shall track the progress of appellate adjudications and shall provide a monthly report of all cases which exceed those parameters.
Finally, EOIR does not have a policy restricting or prohibiting the use of summary dismissals of appeals, nor does it have a policy restricting or prohibiting the use of affirmances without opinion. Any appeals amenable to those procedures should be adjudicated consistent with the regulatory requirements for them, 8 C.F.R. §§ 1003.1(d)(2) and (e)(4), and this PM.
III. Interlocutory Appeals
The regulations do not expressly address interlocutory appeals. “The Board does not normally entertain interlocutory appeals and generally limits interlocutory appeals to instances involving either important jurisdictional questions regarding the administration of the immigration laws or recurring questions in the handling of cases by Immigration Judges.” Board of Immigration Appeals Practice Manual, § 4.14(c).
The Board does not normally issue briefing schedules for interlocutory appeals, nor do most interlocutory appeals require transcription. Board of Immigration Appeals Practice Manual, §§ 4.2(f)(ii), 4.14(e). Consequently, interlocutory appeals are not subject to the same processes as typical case appeals on the merits. Nevertheless, it is the policy of EOIR to adjudicate interlocutory appeals promptly and efficiently.
To that end, interlocutory appeals should be reviewed by the screening panel within 14 days of filing. The screening panel should then either decide the interlocutory appeal within 30 days of filing or forward it for merits review.
Assignment and Performance
Regulations authorize the Chairman to designate a screening panel and other merits panels as appropriate. It is the policy of EOIR that panel assignments shall occur no less frequently than the beginning of each fiscal year.
Finally, “[t]he Chairman shall notify the Director of EOIR and the Attorney General if a Board member consistently fails to meet the assigned deadlines for the disposition of appeals, or otherwise fails to adhere to the standards of the case management system. The Chairman shall also prepare a report assessing the timeliness of the disposition of cases by each Board member on an annual basis.” 8 C.F.R. § 1003.1(e)(8)(v). Notification pursuant to this regulation should occur no later than 30 days after the Chairman determines that a Board member has failed to meet these standards. The Chairman shall prepare the annual report required by this regulation at the conclusion of each fiscal year.
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V . Conclusion
In December 2017, Attorney General Sessions provided a list of principles to which EOIR is expected to adhere, including the principle that “[t]he timely and efficient conclusion of cases serves the national interest.” Memorandum to the Executive Office for Immigration Review, Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest (Dec. 6, 2017), https://www.justice.gov/eoir/file/1041196/download. That principle applies to cases at the Board no less than it applies to cases in immigration courts, and EOIR remains committed to ensuring that all immigration cases at both the immigration court and appellate levels are adjudicated efficiently and fairly consistent with due process.
Responsibility for the Board’s case management system and the duty to ensure the efficient disposition of pending cases fall on the Chairman, and Board members themselves are ultimately responsible for the adjudication of individual cases. Accordingly, nothing in this PM is intended to require—or should be construed as requiring—a change in the conditions of employment of any bargaining unit employees at the Board.
The Board maintains a goal developed under the Government Performance and Results Act (GPRA) of completing 90% of detained appeals within 150 days of filing. The instant PM does not alter that goal, and in all cases, it remains EOIR policy that the Board “shall issue a decision on the merits as soon as practicable, with a priority for cases or custody appeals involving detained aliens.” 8 C.F.R. § 1003.1(e)(8).
This PM supersedes any prior guidance issued by EOIR regarding the timely processing of cases on appeal.
This PM is not intended to, does not, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Further, nothing in this PM should be construed as mandating a particular outcome in any specific case.
Please contact your supervisor if you have any questions. _____________
WASHINGTON, DC – Today, the American Immigration Lawyers Association (AILA) reviewed and analyzed the recent policy memo impacting the workings of the Board of Immigration Appeals (BIA) which serves as the appellate arm of the immigration courts within the Department of Justice (DOJ).
Jeremy McKinney, Second Vice President of AILA noted, “This memo offers significant areas of concern. An earlier rule issued in August describing the reorganization of the Executive Office for Immigration Review (EOIR) at DOJ delegates authority from the Attorney General to the EOIR director to adjudicate cases ‘that cannot be completed in a timely fashion.’ As a political appointee and not an immigration judge, the director should not have that power. This memo goes even further and pressures BIA members to speed up adjudications without care for due process. Frankly, this latest memo only underscores the need for an independent immigration court to get these proceedings out from under the thumb of the nation’s prosecutor.”
Benjamin Johnson, AILA Executive Director stated, “The purported reasoning behind this memo is that BIA adjudication rates have stalled. What did they expect the appellate situation would look like when immigration enforcement was ramped up and targeted people with longstanding ties to their communities and potential equities in immigration cases? It was inevitable that the appeals caseload would increase. This memo actually urges BIA adjudicators to dismiss appeals, before a transcript of the original hearing is even reviewed. The result of this policy change will be even more federal court litigation as people seek to get their fair day in court. Everything about this system is incongruent with an independent decision-making body.”
It just keeps getting worse and worse, as Congress and the Article IIIs shirk their duties to intervene and enforce Due Process in our broken and “maliciously incompetently” managed Immigration “Courts.”
As one “Roundtable” member noted, in an amazing public ripoff, the Administration is raising the appeal fees by nearly 1000% so abused immigrants subjected to the EOIR “Kangaroo Court” will now “pay more for less justice!”
But, all is not lost! NDPA Lt. General and Roundtable stalwart Judge Lory D. Rosenberg has put out a timely format (below) for filling out a Notice of Appeal (“NOA”) that will be “McHenryproof” and will also highlight to the Article III Courts of Appeals the stunning denial of Due Process and encouragement of sloppy work, “worst practices,” and corner cutting at EOIR. Let’s see whether being flooded with inferior, biased work product by the BIAwill finally spur the Article IIIs to take some long overdue corrective action (as they did during the due process disaster at EOIR that followed the “Ashcroft Purge” at the BIA).
I understand the Dems reluctance to enable Trump’s “hostage taking” strategy. But, I doubt they can solve that with Trump and the GOP controlling two of the three political arms of Government.
Indeed, a better idea would be for Speaker Pelosi and Majority Leader McConnell to get together “when the smoke clears” and see what they can do jointly to take back and fix the bipartisan Congressional budget process and protect it from overreach by Executives of both parties. For two of the major legislative “gurus” of our age in the twilight of their careers, that would be a great “bipartisan legacy.”
But, for the time being, folks are suffering, and lives are in danger: Government employees, those that depend on Government, asylum applicants, Dreamers, TPSers, those in Immigration Court, and the families of all of the foregoing. So, I think the Dems should make a “robust” counterproposal that gives Trump at least part of his “Wall,” but also includes other important reforms and improvements that will diminish the impact of border migration issues in the future. Most important, almost everything in this proposal would save or improve some human lives and benefit America in the short and long run.
So, here’s my outline of the “SECURITY, MIGRATION ASSISTANCE RENEWAL, & TECHNICAL SYSTEMS ACT (“SMARTS ACT”) OF 2019”
SECURITY, MIGRATION ASSISTANCE RENEWAL, & TECHNICAL SYSTEMS ACT (“SMARTS ACT”) OF 2019
Federal Employees
Restart the Government
Retroactive pay raise
Enhanced Border Security
Fund half of “Trump’s Wall”
Triple the number of USCIS Asylum Officers
Double the number of U.S. Immigration Judges and Court Staff
Additional Port of Entry (“POE”) Inspectors
Improvements in POE infrastructure, technology, and technology between POEs
Additional Intelligence, Anti-Smuggling, and Undercover Agents for DHS
Anything else in the Senate Bill that both parties agree upon
Humanitarian Assistance
Road to citizenship for a Dreamers & TPSers
Prohibit family separation
Funding for alternatives to detention
Grants to NGOs for assisting arriving asylum applicants with temporary housing and resettlement issues
Require re-establishment of U.S. Refugee Program in the Northern Triangle
Asylum Process
Require Asylum Offices to consider in the first instance all asylum applications including those generated by the “credible fear” process as well as all so-called “defensive applications”
Immigration Court Improvements
Grants and requirements that DHS & EOIR work with NGOs and the private bar with a goal of achieving 100% representation of asylum applicants
Money to expand and encourage the training and certification of more non-attorneys as “accredited representatives” to represent asylum seekers pro bono before the Asylum Offices and the Immigration Courts on behalf of approved NGOs
Vacate Matter of A-B-and reinstate Matter of A-R-C-G-as the rule for domestic violence asylum applications
Vacate Matter of Castro-Tumand reinstate Matter of Avetisyan to allow Immigration Judges to control dockets by administratively closing certain “low priority” cases
Eliminate Attorney General’s authority to interfere in Immigration Court proceedings through “certification”
Re-establish weighing of interests of both parties consistent with Due Process as the standard for Immigration Court continuances
Bar AG & EOIR Director from promulgating substantive or procedural rules for Immigration Courts — grant authority to BIA to promulgate procedural rules for Immigration Courts
Authorize Immigration Courts to consider all Constitutional issues in proceedings
Authorize DHS to appeal rulings of the BIA to Circuit Courts of Appeal
Require EOIR to implement the statutory contempt authority of Immigration Judges, applicable equally to all parties before the courts, within 180 days
Bar “performance quotas” and “performance work plans” for Immigration Judges and BIA Members
Authorize the Immigration Court to set bonds in all cases coming within their jurisdiction
Fund and require EOIR to implement a nationwide electronic filing system within one year
Eliminate the annual 4,000 numerical cap on grants of “cancellation of removal” based on “exceptional and extremely unusual hardship”
Require the Asylum Office to adjudicate cancellation of removal applications with renewal in Immigration Court for those denied
Require EOIR to establish a credible, transparent judicial discipline and continued tenure system within one year that must include: opportunity for participation by the complainant (whether Government or private) and the Immigration Judge; representation permitted for both parties; peer input; public input; DHS input; referral to an impartial decision maker for final decision; a transparent and consistent system of sanctions incorporating principles of rehabilitation and progressive discipline; appeal rights to the MSPB
International Cooperation
Fund and require efforts to work with the UNHCR, Mexico, and other countries in the Hemisphere to improve asylum systems and encourage asylum seekers to exercise options besides the U.S.
Fund efforts to improve conditions and the rule of law in the Northern Triangle
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No, it wouldn’t solve all problems overnight. But, everything beyond “Trump’s Wall” would make a substantial improvement over our current situation that would benefit enforcement, border security, human rights, Due Process, humanitarian assistance, and America. Not a bad “deal” in my view!
In his last out of touch missive, McHenry said that one year was a “reasonable period” for adjudicating an asylum application in accordance with Due Process. Now it’s six months or less!
The “statutory limit” in section 208 never had any basis in fact. It was a number pulled out of thin air by Congress and has never been achievable.
In any event, Congress’s and EOIR’s attempt to place and enforce statutory limits on adjudication can never contravene Due Process.
Heck, when I was in Arlington, most “affirmative” asylum cases were more than six months from filing before they even got on my docket at Master Calendar.
For “defensive” filings (those asylum applications filed initially with the Immigration Court), there is no way that with 1.1 million cases already on the docket and scheduled, new cases could be fairly completed within six months without massive, massive “Aimless Docket Reshuffling” that will jack up the backlog even further.
Given the “docket overload” in the Immigration Courts, there simply aren’t enough qualified attorneys (particularly pro bono attorneys) available to represent asylum applicants with six months or less to prepare. Many pro bono organizations can’t even schedule “intake interviews” within six months!
In the Sessions mold, McHenry, who has never to my knowledge adjudicated an asylum application in his life, is attempting to “duress” judges into choosing between upholding Due Process and their oaths of office and following unreasonable agency directives aimed exclusively at screwing asylum seekers and promoting more denials.
The cases are more complex than ever. If anything, the DOJ should be promulgating a “blanket exemption” from the six month period given the current overall circumstances.
The obtuse “two standard” interpretation is completely new; although the statute has been in effect for approximately two decades, nobody has ever interpreted that way before!
This is an obvious, heavy handed attempt by non-judicial officials at EOIR and DOJ to interfere with and direct the independent decision making responsibilities of the Immigration Judges.
This system is heading down the tubes! It’s a farce! If the Article IIIs don’t put an end to it, it will go down as one of the most disgraceful mockeries of our Constitution and the rule of law since the days of Jim Crow! Not to mention a total and intentional perversion of international protection standards.
October 1st marked a new and dark era as Immigration Judges. The Agency is now subjecting us to quotas and deadlines as part of our individual performance evaluations, something that is inherently in conflict with our oath of office(which is the very reason why Congress explicitly excluded ANY individual performance measures for Administrative Law Judges). NAIJ has largely concluded the bargaining with the Agency on “impact and implementation” of these quotas and deadlines and continues to express (to the Agency and the public) our strenuous disagreement with the concept of quotas and deadlines as a matter of principle. However, to the extent that we remain a part of the Department of Justice and are treated as DOJ attorneys (in spite of being judges in our duties and responsibilities), our legal recourse of action is confined to labor laws, which are designed for traditional labor/management relationships and do not deal with issues of judicial independence. Thus, unless and until the Agency takes an adverse action against a particular judge (or Congress steps in with the durable solution of removing the Immigration Court from the Justice Department), we cannot file any grievance or complaints (including the suggestion of several of our judges to file for intentional infliction of emotional distress, which appears to be prohibited by the Federal Torts Claims Act). Thus, we have spent many hours in the past months in bargaining and informal discussions to minimize the impact of this ill-conceived program. We have been able to help craft more favorable interpretations of what will satisfy the metrics, improved the content and design of the Dashboard to make it more user friendly, and been able to point out shortcomings and flaws which we still seek to improve or eliminate. The MOU you will see shortly has been negotiated as an adjunct to Article 22 of the Collective Bargaining Agreement which provides protections for judges in the performance evaluation process. We entered into the MOU in the hopes of improving the position of judges by clarifying that the quotas and deadlines do not stand alone, but must be read in conjunction with specific consideration of each judge’s docket and consistent with Article 22.3.h. We expect the MOU will help provide judges with a measure of protection and help reconcile the quotas and deadlines with the individual demands of our individual dockets and courts. Additionally, the MOU provides for a continuing forum for the NAIJ to raise concerns with the Agency about the operation of the Dashboard or application of performance measures, both on a general level and on behalf of any individual judge. So your continued feedback to NAIJ is a critical part of this process.
Meanwhile I cannot emphasize enough that your oath of office should be your guiding principle throughout these challenging times. As I have said many times before, so long as you put in an honest day’s work and stay true to your oath of office, we will stand by you 100% of the time. “Due process” is the beginning and the end of the conversation. Period. Full Stop.
Thank you for those of you who have been sharing with us your experiences with the Dashboard and your ACIJs regarding the CBA Article 22.3.h. Please keep them coming as we want to make sure that any problematic patterns or practices of the Agency are noted and resolved early.
We also understand that many of you are seeking guidance on how to best navigate this new system. We do have some suggestions for you which we plan to share in our upcoming Q&A sessions on the implementation of the Quotas and Deadlines. I have included a couple of attachments that may also be of help to you in identifying the data entry error or track the 22.3.h factors that your ACIJs should be considering. So please mark your calendars, and plan on joining us for at least one of the sessions.
DISCLAIMER: The author is the President of the National Association of Immigration Judges. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
P.S. Please let your fellow NAIJ members know about these call-in session. Should you hear of any NAIJ member who may not have received this email, please let me knowasap and feel free to forward to them as well. Thank you.
Today, the new performance measures, as incorporated in Element 3 of your Performance Work Plan, become effective. The new Element 3 is attached to this e-mail and will be appended to each of your PWPs. The implementation of these new performance measures is part of a larger effort to make changes across the Agency to better enable us to meet our mission, to fairly and expeditiously adjudicate immigration cases. You are and always have been a dedicated and professional corps, with the competence and integrity to render decisions that are both “timely and impartial,” as required by the regulations. Historically, IJs have been held accountable in performance Element 3 to make timely rulings and decisions as well as to manage calendars efficiently. These measures simply define these goals more specifically in the present day.
I wanted to emphasize a few important points that you also may have heard from your ACIJ during your court meetings:
-Decisions should not be made on individual matters based solely on the performance measures. We remain committed to ensuring due process in each case.
– I hope that each of you has taken an opportunity to review the IJ Performance Data Dashboard (“Dashboard”), which is linked to the OCIJ intranet page under “Quick Links.” Please keep in mind that the Dashboard is not your performance rating. It displays data from CASE as it relates to your progress towards meeting the established goals and benchmarks in Element 3 of the PWP. The new measures apply to your performance for the second year of this cycle, from Oct. 1, 2018 to September 30, 2019. Your overall performance rating will be determined at the end of the two-year rating cycle (ending September 30, 2019), considering your performance in all three elements of the PWP.
– The Dashboard is one day behind. Therefore today it shows data as of September 30, 2018. Tomorrow, it will “zero out,” and show data as of October 1. As of tomorrow, only actions you take from October 1 forward should appear on the Dashboard.
– In addition to the Definitions document that I circulated on September 10 (and attached again here), with the input of NAIJ, we have developed a Frequently Asked Questions (“FAQ”) document, which I have attached here as well. We continue to tweak the data captured in the Dashboard to ensure that it accurately reflects the Definitions document and the FAQ document. We encourage you to bring data issues to the attention of your ACIJ.
– Please carefully review not only the new PWP Element 3, but also Article 22 of the Collective Bargaining Agreement between the Agency and NAIJ. In particular, in Article 22.3.h., the Agency has agreed to take into account a number of factors that may affect an IJ’s ability to meet the performance standards, including factors not in control of the IJ.
– We have concluded our discussions with NAIJ, and in the near future, we will publish on the intranet the Memorandum of Understanding that both parties agreed to at the conclusion of bargaining. Please review this document carefully when it becomes available.
– We welcome your input throughout the year. We want to hear about the circumstances you feel are hindering your efforts to reach the goals and benchmarks. We also want to hear your suggestions for making the courts and our processes more efficient, and more generally how the courts can better meet our mission.
– If there is something systemic or frequently recurring that you believe is interfering with your ability to meet the measures, please raise your concern with your ACIJ.
– Please be patient, especially during the rollout and at the end of the first quarter, when numbers are likely to be low due to holidays and leave.
Thank you.
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So, Chief Immigration Judge Marybeth Keller says decisions shouldn’t be made based “solely on the performance measures.” In other words, performance measures can be a basis for decisions so long as the IJ doesn’t identify them as the “sole” basis.
There would be no need for “performance measures” at all unless those imposing them intended that they influence or control results. What kind of “performance measure” isn’t geared at influencing or shaping the “end product” of the “performance.” Or, perhaps the theory of DOJ/EOIR management is that IJs as a group are a bunch of lazy work shirkers who won’t put in a full day’s effort unless watched and threatened at all times with sophomoric “big brother type performance dashboards.”
Maybe that is the purpose of the “IJ Performance Data Dashboard.” This “Dashboard” is a remarkable achievement for an agency that still hasn’t been able to roll out a finalized version of an e-filing system. Clearly it’s a matter of “priorities;” fair adjudication and service to the public obviously aren’t among them!
The purpose of the Dashboard is appparently to insure that the stress levels build and that “judges” remain focused on achieving their “performance goals” (and hence keeping their jobs) rather than on the merits or justice in a particular case. Indeed, in a “real” court system judges would be encouraged to focus solely on providing fair and impartial adjudications in accordance with Due Process and the technology would be devoted exclusively to that end. “Production data,” while perhaps interesting from an intellectual or self-evaluation standpoint, actually has little or nothing to do with justice in a particular case.
Everyone who loses a case in this amazingly depressing “kangaroo court” system should file a petition for review citing the inherent Due Process flaw in having a “judge” who can’t possibly function as an “impartial” adjudicator as required both by the Constitution and by DOJ regulations. Maybe at some point the Article IIIs will fully understand the judicial farce in which they are complicit and act accordingly.
It now appears the Department of Justice has chosen not to comply with the Supreme Court’s decision in Pereira v. Sessions solely because doing so would conflict with the agency’s self-imposed deportation quotas it is placing on Immigration Judges, which go into effect October 1, 2018. The story unfolds in a series of e-mail messages obtained through FOIA and involve the interplay of two federal agencies tasked with separate responsibilities in the process of deciding whether to deport a person charged with being removable.
Much Ado About Scheduling Hearings
The basic issue raised by Pereirais that the immigration statute requires an immigration court charging document to list the date and time of the hearing. The Supreme Court said in Pereirathat a Notice to Appear (commonly known by its acronym: “NTA”) that doesn’t contain the date and time “is not a notice to appear” at all, which means arguably the proceedings were invalid and unlawful from the beginning.
Imagine having to go to traffic court even though the police officer wrote your ticket on a napkin, didn’t sign it, and it didn’t tell you when and where your court would be (or what you were being charged with). You or your attorney would march into court arguing this isn’t really a ticket, so why on earth am I even here? You would easily get the proceedings thrown out, because they were started improperly.
The difference here is that unlike traffic court, immigration court can result in lifetime expulsion from the United States, for individuals who may have a good reason to fear being harmed or killed if deported. And not showing up to court means an automatic order of removal.
Solving this problem would be simple. As the Supreme Court observed in Pereira:
As the Government concedes, ‘a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.’ Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before sending notices to appear.
If the system already exists, why weren’t they already using it?
The problem results from the decision by Congress in 2003 to separate of INS into two separate agencies: (1) the immigration courts (under the umbrella of the Department of Justice; and (2) the Department of Homeland Security, which is the prosecutor in immigration court cases.
The system for scheduling hearings (called “Interactive Scheduling System” or “ISS”) is owned by the Department of Justice, so it has sole decision-making power on whether the DHS, a separate agency, can access it and schedule hearings on its own. The DOJ ended that access at some point and has never restored it. Without access to that system, DHS has decided to fudge the date and time – issue NTAs with a line for the date and time but simply write “to be determined” on the line. And they have done that on most charging documents filed for the last 20 or so years.
This disconnect has resulted in a number of problems, the most serious of which is that immigrants don’t know when their hearing date is, so they miss the date and get ordered removed in in absentia (as happened to the immigrant in Pereira).
The Pereira decision left the DOJ with a pretty clear command from the Supreme Court: turn your system back on so DHS can schedule hearings. Most who practice in this area thought the Department of Justice would comply. Unfortunately, they haven’t.
Despite Pereira, EOIR Vacillates on Whether to Turn on ISS
The Pereira decision was issued on June 21, 2018. Early on June 22, 2018 Rene Cervantes, the court administrator for the San Diego Immigration Court, e-mailed Rico Bartolomei Jr, the Assistant Chief Immigration Judge for that area, asking if the court should keep accepting the filing of NTAs by DHS without the date and time, despite what the Supreme court had just quite plainly said.
Bartolome responded that there had been no guidance from the DOJ, so for now they would keep accepting deficient NTAs for filing. By mid-afternoon on the 22nd, the discussion turned to whether the Department of Justice would “turn on ISS ASAP,” meaning enabling the DHS to access its scheduling system so it could file compliant notices to appear.
By June 25, 2018 it looked like the DOJ had decided to turn the ISS system back on. In an e-mail Christopher Santoro, Principal Deputy Chief Immigration Judge, wrote that the only problem was timing, writing:
“[W]e were also told that, consistent with the benchmarks that went out with the new court performance measures, we need to get detained NTAs their first MC within 10 days of filing and non-detained NTAs their first MC within 90 days of filing. We also cannot be “full” – in other words, if DHS wants to file an NTA, there must be a slot for them to schedule it in within 10/90 days.”
In response, the Attorney General has ordered draconian benchmarks which will require, among other things, that every judge in the country enter at least 700 orders per year. These measures are designed turn immigration courts into deportation machines – multipleAttorney Generalopinions have stripped judges of decision-making power while the agency orders more and more decisions to be made.
Relevant here, the new IJ quotas require detained hearings to be scheduled within 10 days of the prosecutor, DHS, filing the NTA with the court.
A June 25, 2018 e-mail from Mark Pasierb, chief clerk to the Immigration Court, explained that the ISS schedule system only has a certain number of slots for hearings with each judge each day. Thus, if the next ten days are “full,” allowing the DHS to access the ISS system will require it to pick a day that is beyond the DOJ’s self-imposed deportation quotas.
On June 27, 2018, Chief Immigration Judge Mary-Beth Keller sent out a timetable for when ISS would be turned on. She wrote that “effective immediately, NTAs filed at the window that do not specify the time and place of the hearing should be rejected.” She added that by July 2, 2018, the DOJ would turn the ISS system back on for non-detained cases and by July 16, 2018 for detained cases. However, that advice did not last long.
By July 11, 2018, the EOIR had decided officially to continue accepting non-compliant NTAs. Santoro e-mailed all court staff writing:
The Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs.
The DOJ Chooses Self-Imposed Deportation Quotas Over Complying With the Supreme Court.
What the June 25 Christopher Santoro e-mail reveals is that while the DOJ definitely has the power to turn on its scheduling system to comply with the Pereira decision, it does not want to, because it does not want that process (essentially ordered by the Supreme Court) to affect its new mega-deportation benchmarks that start on October 1, 2018.
The results are already being felt in Immigration Courts around the country. Without being able to access ISS, the prosecutors whose job it is to file these charging documents are just writing made-up dates or “dummy dates” on the charging documents. It’s hard to envision how the agency can get away with that; attorneys who file documents they know to be false (including having a pretend hearing date) are subject to discipline by their state bar.
More urgently, the people who receive these documents are showing up in court, sometimes within days, scheduling to travel across the country at times to attend a court hearing that was never even scheduled and is not going to take place.
Until the EOIR chooses to comply with the Supreme Court’s decision in Pereira (likely after parties are forced to litigate these issues in federal court) it is not clear there is any solution to this problem on the horizon.
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Four obvious “take-aways:”
Solving this problem isn’t “rocket science,” but it does exceed the collective abilities of the perpetuators of “Clown Court” (as the great Yogi Berra said, “Can’t anybody here play this game?”);
Sessions’s scofflaw, “haste makes waste,” attitude is now the “order of the day” at EOIR, which once purported to be a court system, not an ICE deportation office;
The DOJ & EOIR lack the competence to fairly and effectively administer a court system;
EOIR needs to go and be replaced with an independent court system outside the Executive’s control.
I will be fascinated to see how the DOJ attorneys defend this one before the Article IIIs with a “straight face” (or not).
Another day, another abuse of our justice system by Jeff Sessions and the “go alongs to get alongs” who are unwilling to stand up to him.
Many thanks to Matthew for shedding some much-needed light on the shady practices within EOIR & DOJ.
It would all be funny if people’s lives weren’t at stake.
Go on over to ImmigrationProf Blog at the above link for all of the links necessary to get the abstract as well as the full article. Among the many current and former Immigration Judges quoted or cited in the article are Jeffrey Chase, Ashley Tabaddor, Dana Marks, Lory Rosenberg, Robert Vinikoor, and me. (I’m sure I’m missing some of our other colleagues; it’s a very long article, but well worth the read.)
In an article full of memorable passages, here is one of my favorites:
Full enforcement of the law requires full enforcement of provisions that grant protection as well as provisions that restrict border entry. This is the part of “enforcement” that the Department of Justice is not equipped to fully understand. The agency’s fundamental commitment to controlling unauthorized immigration does not allow it a neutral, open position on asylum questions. The foundational separation and balance of powers concerns at the heart of Chevron require courts to recognize that inherent conflict of interest as a reason Congress is unlikely to have delegated unchecked power on refugee protection to the prosecuting agency. In our constitutional structure, the courts stand as an essential check on the executive power to deport and must provide robust review to fully enforce the congressional mandate to protect refugees. If the courts abdicate this vital function, they will be abdicating their distinctive role in ensuring the full enforcement of all of our immigration law—including those provisions that seek to ensure compliance with our international obligations to protect individuals facing the danger of persecution.
This is a point that my friend and colleague Judge Lory Rosenberg made often during our tenure together on the BIA. All too often, her pleas fell on deaf ears.
The now abandoned pre-2001 “vision statement” of EOIR was “to be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Nothing in there about “partnering” with DHS to remove more individuals, fulfilling quotas, “sending messages to stay home,” securing the border, jacking up volume, deterring migration, or advancing other politically motivated enforcement goals. Indeed, the proper role of EOIR is to insure fair and impartial adjudication and Due Process for individuals even in the face of constant pressures to “just go along to get along” with a particular Administration’s desires to favor the expedient over the just.
Under all Administrations, the duty to insure Due Process, fairness, full protections, and the granting to benefits to migrants under the law is somewhat shortchanged at EOIR in relation to the pressure to promote Executive enforcement objectives. But, the situation under the xenophobic, disingenuous, self-proclaimed “Immigration Enforcement Czar” Jeff Sessions is a true national disgrace and a blot on our entire legal system. If Congress won’t do its job by removing the Immigration Courts from the DOJ forthwith, the Article III courts must step in, as Maureen suggests.
WASHINGTON, DC – On August 16, the Attorney General of the United States issued a precedent-setting decision, Matter of L-A-B-R, that limits the discretion of immigration judges to grant continuances. By restricting the court’s use of a vital docketing tool, the decision further erodes judicial independence and will pressure judges to deny more continuances at the expense of due process.
AILA President Anastasia Tonello responded, “With yesterday’s decision, the Attorney General has tightened the vise on immigration judges even further by interfering with an important case management tool that judges use to ensure cases are resolved fairly and justly. Every day, people who are eligible for relief must come before the immigration court and request a continuance until U.S. Citizenship and Immigration Services (USCIS) is able to make a decision. People who are eligible for permanent residence based on marriage to a U.S. citizen, or for protection as cooperating victims of a serious crime, may be deported unjustly if the judge is blocked from granting them a continuance. Justice cannot be dispensed on an assembly line, but Matter of L-A-B-R- seeks to do just that by pressuring judges to deny continuances and move cases rapidly through the system without due regard for potential relief.”
AILA Executive Director Benjamin Johnson stated, “While playing the role of both prosecutor and judge, the Attorney General continues to perpetuate the false narrative that immigrants are to blame for the long-standing inefficiencies that plague the immigration court system while rewriting our nation’s immigration laws. This decision is especially troubling because it will penalize people for something they simply cannot control: the notoriously lengthy USCIS processing times. Matter of L-A-B-R- is yet another reason why Congress must pass legislation establishing the immigration court as an Article I court separate from the Justice Department. Until Congress acts, the Attorney General will continue to encroach upon the independence of the courts, forcing judges to order people removed without a fair process. Congress must stop the administration from turning immigration courts into yet another enforcement agency.”
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
Cite as AILA Doc. No. 18081736.
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Where and when will the “deconstruction” of Constitutional Due Process End?
Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to AG’s Decision in Matter of L-A-B-R-
August 17, 2018
As former Immigration Judges and Members of the BIA with many decades of combined experience on thebench, we must expose the Attorney General’s latest blow to judicial independence in his decision in Matter of L-A-B-R-.
There is no question that the Immigration Courts are currently overwhelmed by a backlog of more than 700,000 pending cases. Facing the imposition of unreasonable case completion quotas, many Immigration Judges presently feel forced to double-book hearings. One of our members who recently left the bench states that judges at present may receive ten to fifteen motions for continuance a day. Sessions’s latest decision would force each judge to write lengthy, highly detailed decisions for each of these while still trying to complete three or more full hearings a day. Of course, the implementation of this latest decision is entirely unrealistic. Furthermore, the decision imposes no such requirements in instances where DHS seeks a continuance (often for avoidable reasons such as its inability to locate the file or to have adjudicated a petition in time).
It should be remembered that many of the cases before the Immigration Courts involve individuals whose lives are at risk in their home countries. As the President Emeritus of the group’s union has said,Immigration Judges hear death penalty cases under traffic court conditions. In his decision, Sessions usesthe words “efficient,” “efficiency,” or “inefficient” 12 times. The word “justice” (other than in the name ofthe agency he heads, or as a job title) appears only once.
Immigration Judges should be treated as judges, and should be afforded the independent judgment that their position requires, including the basic power to control and prioritize their own case dockets. While judges share the administration’s concern over the high volume of cases, they should be allowed a say inproposing solutions that will not infringe on their independent judgment or their ability to afford due process.
Sincerely,
Hon. Steven Abrams Hon. Jeffrey S. Chase Hon. Bruce J. Einhorn Hon. John F. Gossart, Jr. Hon. Rebecca Jamil Hon. William P. Joyce Hon. Carol King
Hon. Margaret McManus Hon. Charles Pazar Hon. Lory D. Rosenberg Hon. Susan Roy
Hon. Paul W. Schmidt Hon. Polly A. Webber
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AILA Doc. No. 18081776. (Posted 8/17/18)
List of Retired Immigration Judges and Former BIA Members
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration LawyersAssociation’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.
The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.
Honorable Rebecca Jamil
The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a
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The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.
AILA Doc. No. 18081776. (Posted 8/17/18)
Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.
Judge Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.
Honorable Charles Pazar
The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blogimmigrationcourtside.com.
The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served
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AILA Doc. No. 18081776. (Posted 8/17/18)
as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.
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It’s an honor to be part of this group of my distinguished colleagues and to stand in opposition to Sessions’s “deconstruction” of Due Process and fundamental fairness in our United States Immigration Courts. Court systems work best when we allow judges to function as judges, without this type of political interference by non-judges. The latter is a responsible for “Aimless Docket Reshuffling” — one of the key causes of the backlog which has developed and increased over the last three Administrations.
The union for the nation’s immigration judges is fighting a government decision to strip a Philadelphia judge of his authority over 87 cases, arguing that the move sidelines judicial independence as President Trump seeks to ramp up deportations.
Immigration judges work under the Justice Department’s Executive Office for Immigration Review, though they have independent authority to determine whether the thousands of undocumented immigrants who come before them every year can remain in the United States through asylum or some other form of relief.
In a labor grievance filed this week, the National Association of Immigration Judges says the office undercut that authority when it removed Judge Steven A. Morley from overseeing juvenile cases that he had either continued or placed on temporary hold amid questions over whether federal prosecutors had adequately notified the subjects to appear in court.
The Justice Department said in a statement Thursday that “there is reason to believe” Morley violated federal law and department policy in those cases, but it did not offer any specifics. The statement said an investigation is ongoing.
Trump alarmed immigration judges in June by tweeting that anyone caught at the border, presumably including those seeking asylum, should be deported without a trial.
“When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” the president wrote.
In its grievance, the judges’ union focused on a case involving Reynaldo Castro-Tum, a Guatemalan national who arrived in 2014 as a 17-year-old unaccompanied minor.
Castro-Tum’s current whereabouts are unknown, and he had not responded to recent court summonses. Morley temporarily closed his case in 2016, ordering the Justice Department to ensure that Castro-Tum was receiving the notices. He did the same with other similar cases.
Prosecutors appealed Morley’s decision, and the case eventually came to the attention of Attorney General Jeff Sessions, who chose to review it in January.
Sessions concluded that Morley was wrong to close Castro-Tum’s case and ordered it resolved within two weeks.
Amiena Khan, a New York-based immigration judge who is the union’s vice president, said the intervention further raised suspicions that the administration is looking to circumvent the judicial process and move to deport people faster amid a backlog of some 600,000 cases.
“This is another transparent way, surprisingly transparent in this instance, for the agency to come in and re-create the ideology of this whole process more towards a law enforcement ideology,” Khan said.
The system “is based on our ability to look at the facts and adjudicate the claim before us to our best ability and then render a decision,” Khan said. “Not being told by someone else how to rule.”
The union, which represents 350 judges, argues that Morely should get his caseload back. It is asking the Justice Department to assure all immigration judges that their independent authority won’t be undermined.
Immigrant advocates say the dispute highlights a fundamental flaw in immigration courts, where the judges work under the same department that is tasked with prosecuting cases. Several legal groups have renewed a push for federal legislation to overhaul the system so judges can operate more independently, either through a different branch of the Justice Department or as a separate tribunal court.
“We’re very concerned the immigration judges are simply being turned into law enforcement officers,” said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, which launched a national campaign this month to lobby members of Congress to support such legislation.
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When he isn’t busy praising hate groups, covering for police violence against the African-American community, disenfranchising minority voters, promoting the establishment of religion, using bogus stats to fabricate a connection between immigrants and violent crime, abusing brown-skinned children, forcing transgender kids to pee in their pants, thumbing his nose at Federal Judges and their orders, briefing his attorneys on how to mislead courts, mounting unconstitutional attacks on cities, ignoring environmental laws, dissing Dreamers, shilling for racist legislation, deconstructing our refugee, asylum, and legal immigration systems, filling court dockets with minor misdemeanants to the exclusion of felons, imposing deportation quotas, shafting brown-skinned refugee victims of domestic violence, huddling with fellow neo-Nazi Stephen Miller, blocking migrants from getting abortions, or hiding under his desk from Trump, one of Jeff “Gonzo Apocalypto” Sessions’s favorite pastimes is interfering with the independence of U.S. Immigration Judges while purposely jacking up the backlog in the U.S. Immigration Courts.
It remains to be seen whether our country can survive this one-man Constitutional wrecking crew and his reign of indecency and intellectual dishonesty.
It is difficult not to cry (as I did) while listening to the recording of a recent immigration court hearing at a detention facility near the border. The immigration judge addresses a rape victim who fled to this country seeking asylum. She indicates that she does not feel well enough to proceed. When asked by the judge if she had been seen by the jail’s medical unit, the woman responds that she just wants to see her child (who had been forcibly separated from her by ICE), and breaks down crying. The judge is heard telling a lawyer to sit down before he can speak. The woman, still crying, repeats that she just wants to see her child. The immigration judge proceeds to matter-of-factly affirm the finding of DHS denying her the right to apply for asylum. The judge then allows the attorney to speak; he points out for the record that the woman was unable to participate in her own hearing. The judge replies “so noted.” He wishes the woman a safe trip back to the country in which she was raped, and directs her to be brought to the medical unit. He then moves on to the next case on his docket. Neither DHS (in its initial denial) nor the immigration judge (in his affirmance) provided any explanation or reasoning whatsoever for their decisions. According to immigration attorneys who have recently represented asylum seekers near the border, this is the new normal.
Under legislation passed in 1996, most non-citizens seeking entry to the U.S. at airports or borders who are not deemed admissible are subjected to summary removal by DHS without a hearing. However, those who express a fear of harm if returned to their country are detained and subjected to a “credible fear interview” by a USCIS asylum officer. This interview is designed as a screening, not a full-blown application for asylum. The noncitizen being interviewed has just arrived, is detained, often has not yet had the opportunity to consult with a lawyer, probably does not yet know the legal standard for asylum, and has not had the opportunity to compile documentation in support of the claim. Therefore, the law sets what is intended to be a very low standard: the asylum officer need only find that there is a significant possibility that the noncitizen could establish in a full hearing before an immigration judge eligibility for asylum.1
If the asylum officer does not find credible fear to exist, the noncitizen has one chance for review, at a credible fear review hearing before an immigration judge. This is an unusual hearing. Normally, immigration judges are trial-level judges, creating the record of testimony and other evidence, and then entering the initial rulings on deportability and eligibility for relief. But in a credible fear review hearing, the immigration judge also functions as an appellate judge, reviewing the decision of the asylum officer not to vacate an already entered order of removal. The immigration judge either affirms the DHS determination (meaning that the respondent has no right to a hearing, or to file applications for relief, including asylum), or vacates the DHS removal order. There is no further appeal from an immigration judge’s decision regarding credible fear.
Appeal courts do not hear testimony. At the appellate level, it is the lawyers who do all of the talking, arguing why the decision below was or was not correct. The question being considered by the immigration judge in a credible fear review hearing – whether the asylum officer reasonably concluded that there is not a significant possibility that the applicant could establish eligibility for asylum at a full hearing before an immigration judge – is clearly a lawyer question. The noncitizen applicant would not be expected to understand the legal standard.
At the present time, determining the legal standard is especially complicated. In light of the Attorney General’s recent decision in Matter of A-B-, all claims involving members of a particular social group fearing what the A.G. refers to as “private criminal actors” must clearly delineate the particular social group, explain how such group satisfies the requirements of immutability, particularity, and social distinction, meet a heightened standard of showing the government’s inability or unwillingness to protect, and show that internal relocation within the country of nationality is not reasonable.
An experienced immigration lawyer could make these arguments in a matter of minutes, by delineating the group, and explaining what evidence the applicant expects to present to the immigration judge to meet the required criteria.
However, the Office of the Chief Immigration Judge’s Practice Manual states the following:
(C) Representation. — Prior to the credible fear review, the alien may consult with a person or persons of the alien’s choosing. In the discretion of the Immigration Judge, persons consulted may be present during the credible fear review. However, the alien is not represented at the credible fear review. Accordingly, persons acting on the alien’s behalf are not entitled to make opening statements, call and question witnesses, conduct cross examinations, object to evidence, or make closing arguments. (emphasis added).
Therefore, at best, a credible fear review hearing consists of the immigration judge asking the respondent an abbreviated version of the questions already asked and answered by the asylum officer. Often, the judge merely asks if the information told to the asylum officer was true (without necessarily mentioning what the asylum officer notes contain), and if there is anything else they wish to add. If the issue was whether the respondent was believable, this might make sense.2 However, the issue is more often whether the facts will qualify for asylum under current case law.
I have canvassed retired immigration judges, as well as attorneys whose clients have been through such hearings. The good news is that it is the practice of a number of judges (past and present) to allow attorney participation. And in some cases, it is making a difference. One lawyer who recently spent a week in south Texas was allowed by the judge there to make summary arguments on behalf of the respondents; the judge ended up reversing DHS and finding credible fear in all but one case. In Fiscal Year 2016 (the last year for which EOIR has posted such statistics), immigration judges nationally reversed the DHS decision and found credible fear less than 28 percent of the time (i.e. in 2,086 out of 7,488 total cases).
However, other judges rely on the wording of the practice advisory to deny attorneys the right to participate. According to a July 14 CNN article, one lawyer recently had a judge deny 29 out of 29 separated parents claiming credible fear. Another lawyer was quoted in the same article citing a significant increase in credible fear denials since the Attorney General’s decision in A-B- last month. https://www.cnn.com/2018/07/14/politics/sessions-asylum-impact-border/index.html This demonstrates why it is now even more important to allow attorney participation to assist judges in analyzing the facts of the respondent’s case in light of this confusing new decision that many judges are still struggling to interpret. And as I recently reported in a separate blog post, USCIS just recently issued guidelines to its asylum officers to deny credible fear to victims of domestic violence and gang violence under a very wrong interpretation of Sessions’ A-B- decision.
It is hoped that, considering the stakes involved, the Office of the Chief Judge will consider amending its guidelines to ensure the right to meaningful representation in credible fear review hearings.
Notes:
1. It should be noted that when legislation created the “well-founded fear” standard for asylum in 1980, both INS and the BIA seriously misapplied the standard until the Supreme Court corrected them seven years later. Although when it created the “credible fear” standard in the 1990s, INS assured that it would be a low standard, as credible fear determinations may not be appealed, there can be no similar correction by the federal courts.
2. Although credibility is not usually an issue, attorneys point out that while they are merely notes which contain inaccuracies and are generally not read back to the asylum-seeker to allow for correction, the notes are nevertheless often treated as verbatim transcripts by immigration judges.
Copyright Jeffrey S. Chase 2018. All rights reserved.
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Amen, Jeffrey, my friend, colleague, and fellow fighter for Due Process and human rights! Jeffrey[s article was also republished by our good friend and colleague Dan Kowalski in BIBDaily here http://www.bibdaily.com/
Not that the EOIR OCIJ is going to do anything to change the process and further Due Process in the “Age of Sessions.” After all, they all want to hold onto their jobs, at any cost to the unfortunate human beings whose lives are caught up in this charade of a “court system.”
In what kind of “court system” don’t lawyers have a right to represent their clients? The Star Chamber? Kangaroo Court? Clown Court? And, to be fair, this outrageous “advice” from OCIJ on how to deny Due Process and fundamental fairness preceded even Sessions. The well had already been well-poisoned!
But, let’s not forget the real culprits here. First, the spineless Article III Courts who have shirked their duty to intervene and require U.S. Immigration Judges to comply with Due Process, respect human rights and dignity, and use at least a minimum of common sense.
And, the greatest culprit is, of course, Congress, which created this monstrosity and has failed for decades to take the necessary corrective action to comply with our Constitution!
EOIR recently announced its intent to subject immigration judges to tiered performance reviews. Most notably, EOIR plans to impose case completion quotas on the individual judges. The American Bar Association, American Immigration Lawyers Association (AILA) and the National Association of Immigration Judges (NAIJ) were among the many organizations to express their strong objection to the proposal.
Immigration judges have always been exempt from the tiered reviews that other Department of Justice attorneys undergo each year. The Office of the Chief Immigration Judge deserves credit for understanding that it is not possible to impose any type of review criteria without impeding on judges’ neutrality and independence. To begin with, how many cases should a judge complete in a given period of time? Are the judges with the most completions affording due process to the respondents? Are they identifying all of the issues, spending enough time reviewing the records, and giving proper consideration and analysis to the facts and the law? Do their decisions provide sufficient detail for meaningful review? Are those at the other end of the scale completing less cases because they are working less hard, or to the contrary, because they are delving deeper into the issues and crafting more detailed and sophisticated decisions? Or is it because they are granting more continuances out of a sense of fairness to the parties, or to allow further development of the record in order to allow for a more informed decision? And regardless of the reasons, might they be prejudicing some respondents by delaying their day in court? How would management turn all of these factors into an objective grade?
In terms of completion quotas, all cases are not equal. A respondent who has no relief and simply wants to depart can have his or her case completed in minutes, whereas a respondent seeking relief in New York will presently be scheduled for a merits hearing in the Spring of 2020, at which time the lengthy testimony of multiple witnesses, disputes over the admissibility of evidence, the need to wait for DHS to adjudicate pending petitions for relief, etc. might result in months or even years of additional continuances. Decisions in some cases are delivered orally in just a few sentences; others require 25 written pages. Yet all count the same in EOIR’s completion ledger.
I am pretty certain that the move for tiered review is not coming from the Office of the Chief Immigration Judge, but from higher up – either the new Acting Director of EOIR, or Main Justice. Even under more liberal administrations, the Department of Justice never really understood the IJs, who are the only judges within a predominantly enforcement-minded department. The need for neutrality and fairness is further lost on the present Attorney General, who has made his anti-immigrant agenda clear. IJs are in an interesting position: they represent the Attorney General (i.e. are acting as the AG’s surrogates, where the statute delegates authority to make determinations or grant relief to the AG). Yet in spite of such posture, IJs often reach decisions that are at odds with the AG’s own views. For example, does Jeff Sessions, who last month issued a memo allowing discrimination against LGBTQ individuals under the guise of protecting the discriminators’ “religious liberty,”, approve of his immigration judges granting asylum claims based on sexual orientation or sexual identity? In light of Sessions’ recent charges of widespread asylum fraud, does he agree with his judges’ high asylum grant rates?
It is probably this tension that provides the impetus for the Department’s present proposal. The tiered criteria and completion quotas are likely designed to pressure judges with more liberal approaches into issuing more removal orders. They would also provide the department with a basis to take punitive action against judges who resist such pressures. Given the high percentage of immigration judges who are retirement eligible, the department might be counting on judges targeted under the new review criteria to simply retire, allowing them to be replaced with more enforcement-minded jurists.
It should be noted that the changes are at this point proposals. The immigration judge corps is represented by a very effective union. As the present leadership within the Office of the Chief Immigration Judge is fair minded, there is hope that reason will prevail. However, in a worst-case scenario in which the plan is implemented, what should immigration judges do?
Having worked both as an IJ and a BIA staff attorney subjected to both quotas and tiered review, I can state that there are big differences. BIA staff attorneys draft decisions that Board members then have to approve, whereas immigration judges are in complete control of the case outcome. Furthermore, unlike BIA attorneys who are dealing with records of completed decisions, immigration judges are conducting proceedings in which the protection of due process must be safeguarded above all, as the Chief Immigration Judge pointed out in her July 31, 2017 memo on continuances. Circuit courts are not going to excuse due process violations because immigration judges have to meet arbitrary completion goals.
Although the intent may be to create more removal orders, completion quotas can prove to be a two-edged sword. Should the ICE attorney not have the file at the first Master Calendar hearing, or should they lack a certified copy of the conviction record or proof of service of the NTA, will the IJ feel compelled to terminate proceedings (which constitutes a completion) rather than grant the government a continuance? Many hearings turn on credibility findings, but credibility findings take time to get right. The Second Circuit, for example, has held that an immigration judge should probe for additional details to clear up doubts about credibility.1 As Deborah Anker has pointed out in her Law of Asylum in the United States, “Federal courts have overturned adverse credibility findings where an immigration judge has interrupted an applicant repeatedly, rushed the hearing, and then criticized an applicant’s testimony for lacking specificity.”2 But won’t completion quotas likely encourage exactly such prohibited behavior? In order to avoid reversal on appeal, judges who are forced to rush or curtail hearings will may need to give the benefit of the doubt to respondents and find them credible. Additionally, judges may no longer be able to continue cases to allow DHS to subject documents to forensic examination, or to conduct consular investigations in the applicants’ home countries. Under pressure to complete cases, judges may be forced to credit witness affidavits as opposed to allowing DHS to subject those witnesses to cross-examination.
For the above reasons, it is not impossible that completion quotas might actually result in more grants of relief and terminations of proceedings, resulting in fewer removal orders. Like so many of the poorly thought out policies of the current administration seeking to erode individual protections, completion quotas (if implemented) may just be the latest that will fail to achieve its intended result. The proposal provides further evidence of the need for a truly independent immigration court.
Copyright 2017 Jeffrey S. Chase. All rights reserved.
Notes
1. Yang v. Board of Immigration Appeals, 440 F.3d 72, 74 (2d Cir. 2006).
2. Anker, Law of Asylum in the United States (2017 Edition) at 199.
Thanks, Jeffrey! Performance standards for Immigration Judges are a complete waste of time, an improper intrusion into judicial independence, and a diversion of time and energy from solving the many real problems facing this system — most of which relate to the DOJ and the untenable administrative structure of the U.S. Immigration Courts, not the individual IJs.
Mica Rosenberg, Read Levinson, & Ryan McNeill report:
“They fled danger at home to make a high-stakes bet on U.S. immigration courts
Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.
OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.
They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.
Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.
Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.
That’s when their fates diverged.
Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.
The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.
Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.
The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.
SAFE AT HOME: Sandra Gutierrez fled from Honduras with her children after receiving death threats from gangs and was granted asylum by Judge Dalin Holyoak in 2016. She now lives in Oakland, California, where she takes English classes and works as a janitor. REUTERS/Stephen Lam
Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.
Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.
In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.
Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.
Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.
The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.
The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.
About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.
“GROSS DISPARITIES”
Of course, other factors influence outcomes in immigration court. For example, U.S. government policy is more lenient toward people from some countries, less so for others.
Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.
Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.
The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors. The longer a judge has been serving, the more likely that judge is to grant asylum.
“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.
“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.
Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.
Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.
Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.
The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.
The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.
Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)
In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”
Video: High-stakes game of chance in U.S. immigration courts
CRISIS AT THE BORDER
In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.
Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.
Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.
Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.
The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.
Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.
The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.
“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”
The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.
One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.
“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.
“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”
She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.
“NO POLICE HERE”
Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.
Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”
Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”
The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”
Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.
There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.
After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.
Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.
“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”
Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.
Volunteer lawyers helped the women prepare and submit their applications for asylum.
In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.
“ASYLUM FREE ZONES”
Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.
People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.
The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.
The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”
Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.
The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.
In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.
In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.
From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.
The agency does not identify judges who were the subjects of complaints.
Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”
HEADING NORTH: Many Central Americans who sought safety in the United States during the 2014 migrant crisis caught a ride through Mexico on the freight train nicknamed “The Beast,” shown here chugging through Oaxaca state. REUTERS/Jose de Jesus Cortes
DAY IN COURT
Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.
In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.
Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.
In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.
After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.
Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.
Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness. As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.
Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”
The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.
Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”
“SOMEONE WANTS TO KILL THEM”
Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”
Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.
Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”
Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.
Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.
In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.
Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.
Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.
“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”
Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.
The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.
MEAN STREETS: Gang graffiti covers buildings in Tegucigalpa, the Honduran capital, where rampant violence has prompted thousands of people in recent years to seek asylum in the United States. REUTERS/Jorge Cabrera
Additional reporting by Gustavo Palencia and Kristina Cooke
A not-quite-independent judiciary
U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.
More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.
The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.
The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.
Reade Levinson
Heavy Odds
By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco
Data: Reade Levinson and Ryan McNeill
Graphics: Ashlyn Still
Photo editing: Steve McKinley and Barbara Adhiya
Video: Zachary Goelman
Design: Jeff Magness
Edited by Sue Horton, Janet Roberts and John Blanton”
Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.
Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:
Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”
It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.
