Immigration Courts – Page 195 – immigrationcourtside.com

Family Detention, Raids, Expediting Cases Fail To Deter Scared Central Americans!

https://www.washingtonpost.com/world/national-security/central-americans-continue-to-surge-across-us-border-new-dhs-figures-show/2016/12/30/ed28c0aa-cec7-11e6-b8a2-8c2a61b0436f_story.html?utm_term=.077ef694fd73

“Immigration advocates have repeatedly criticized the Obama administration for its increased reliance on detention facilities, particularly for Central American families, who they argue should be treated as refugees fleeing violent home countries rather than as priorities for deportation.

They also say that the growing number of apprehended migrants on the border, as reflected in the new Homeland Security figures, indicate that home raids and detentions of families from Central America isn’t working as a deterrent.”

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The “enforcement only” approach to forced migration from Central America has been an extraordinarily expensive total failure. But, the misguided attempt to “prioritize” cases of families seeking refuge from violence has been a major contributing factor in creating docket disfunction (“Aimless Docket Reshuffling”) in the United States Immigration Courts. And, as a result, cases ready for trial that should have been heard as scheduled in Immigration Court have been “orbited” to the end of the docket where it is doubtful they ever will be reached. When political officials, who don’t understand the Immigration Court and are not committed to its due process mission, order the rearrangement of existing dockets without input from the trial judges, lawyers, court administrators, and members of the public who are most affected, only bad things can happen. And, they have!

PWS

12/31/16

As Federal Hiring Freeze Looms, The Chickens Might Be Coming Home To Roost At The Beleaguered U.S. Immigration Court System — More than 20% Of Judicial Vacancies Unfilled!

https://www.washingtonpost.com/powerpost/federal-agencies-rush-to-fill-job-openings-before-trump-takes-office-jan-20/2016/12/30/de0c1030-cdd8-11e6-a747-d03044780a02_story.html?hpid=hp_local-news_trumphiring-940pm%3Ahomepage%2Fstory&utm_term=.81ad4681c3c9

“Leaders at these agencies are filling open positions with transfers and outside hires and are making internal promotions before Trump takes office Jan. 20, according to internal documents and interviews.

The hiring could increase tensions between the Trump transition team and the Obama administration — a relationship that has grown worse in recent days due to disagreements over how the United States should handle its relationship with Israel and the issuance of new sanctions against Russia over its role in hacking incidents tied to the election.

Sean Spicer, the incoming White House press secretary, said in an interview late Friday that an agreement was struck in November that no new hires would be made after Dec. 1.

“After the election, the current administration notified us there would be a hiring freeze as of Dec. 1,” he said. “The understanding was that there would be a full accounting of anyone put on the payroll after then.”

White House Office of Management and Budget spokeswoman Shannon Buckingham said in an email early Saturday, “On Dec. 7, the administration imposed a moratorium on the hiring of senior executives within the civil service, known as the Senior Executive Service or SES.”

“This policy is consistent with previous transitions and is intended to ensure that incoming agency heads have the opportunity to make or approve executive hiring decisions that will impact the agency’s performance in the next administration,” she added.”

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As I have mentioned before, the U.S. Department of Justice’s (“DOJ’s”) Executive Office for Immigration Review (“EOIR”), which administers the U.S. Immigration Court System, is on the verge of leaving at least 78 U.S. Immigration Judge positions unfilled at the end of the Obama Administration. As of November 8, 2016, EOIR had filled just 296 of its authorized and funded 374 Immigration Judge vacancies. However, with a number of year-end retirements among the Immigration Judge Corps, the actual number of vacancies is almost certainly exceeds that previously announced.

Given that the U.S. Immigration Courts are struggling with a backlog of well over 500,000 cases — more than two years of work for 296 Immigration Judges, even assuming that they were all trained and fully productive, and that no new cases were filed — the lack of urgency in filling these judicial positions seems unusual, to say the least.

Over the past two Administrations, the DOJ has turned a Civil Service hiring system into a multi-tiered bureaucratic quagmire resulting in a hiring cycle that in too many cases substantially exceeds the much-criticized Senate confirmation process for Article III Federal Judges. But, the multiple layers of bureaucracy haven’t actually improved hiring quality.

Conspicuously absent from the process is meaningful input from anyone who actually practices in, appears before, sits on, or “consumes” the “judicial product” of the Immigration Courts (like judges of the U.S. Courts of Appeals who review final decisions from the Immigration Courts). Not surprisingly, the results of this opaque bureaucratic exercise have been heavily weighted toward new Immigration Judges from government backgrounds, to the disadvantage of those with private practice, academic, or non-governmental organization experience.

While the claimed “complexity” of Federal background checks and security clearances sometimes is blamed for the delays, that is, in plain terms, “poppycock.” The clearance process goes exactly as fast as the Attorney General tells it to go. Those of us who are familiar with the process, and have actually participated in it, know that it is a series of largely ministerial tasks, which with proper “motivation” can be accomplished in a matter of days, rather than months. The idea that any cabinet officer normally would wait a year or more to bring on needed talent from the private sector to fill a critical senior position is simply preposterous. In the past, senior level positions at EOIR and the DOJ, including Immigration Judges and Appellate Immigration Judges who serve on the Board of Immigration Appeals, were filled with candidates from outside the government in a fraction of the time IJ hiring currently takes.

As noted in the Washington Post article, the Trump Administration has announced an intention to impose an immediate hiring freeze. Immigration Judge vacancies might, or might not, be exempted as “public safety positions.” Nobody knows for sure.

U.S. Immigration Judges are senior Civil Service officials, with their own senior pay scale established by Congress. Immigration Judges certainly are equivalent to the Senior Executive Service positions that the Obama Administration appears to have agreed to informally freeze as of December 1, 2016, according to the article. Even if DOJ belatedly tries to rush new appointments through prior to January 20, it is far from clear that the incoming Administration would be legally bound to honor such last minute appointments, let alone outstanding offers.

The chickens might be coming home to roost for the DOJ’s and EOIR’s lackadaisical administration of the U.S. Immigration Courts. And, at this point, it could be too late to solve this self-created disaster. If so, in addition to those who might reasonably have expected to receive Immigration Judge appointments, the real losers will be due process and the American people.

PWS

12/31/16

In Case You Missed It: It’s A Rainy Night In Georgia, Particularly If You Are An Asylum Applicant!

https://www.themarshallproject.org/2016/12/12/america-s-toughest-immigration-court?utm_medium=email&utm_campaign=newsletter&utm_source=opening-statement&utm_term=newsletter-20161212-654#.bKZwzlP91

Some of you have seen this before. But, my good friend and former Georgetown Law colleague Heidi Altman of the National Immigrant Justice Center sent me this article by Christie Thompson of The Marshall Project which describes the dismal atmosphere for asylum applicants and their attorneys at the U.S. Immigration Court located at the Stewart County Detention Center in Lumpkin, Georgia. Christie interviewed me for the article. Here an excerpt:

“‘When people aren’t represented, how can you do a fair job?’ says Paul Wickham Schmidt, a former immigration judge and former chairman of the Board of Immigration Appeals. Isolating a few judges to see only detained cases, Schmidt says, also creates a culture where granting relief is the exception, not the rule. Locating detention centers in rural areas ‘seems more or less designed to discourage people from getting meaningful representation and fighting to stay in the U.S.’”

More on the tough situation for asylum seekers in the U.S. Immigration Courts located in Georgia in the preceding post.

“‘Rainy Night in Georgia’ is a song written by Tony Joe White in 1967 and popularized by R&B vocalist Brook Benton in 1970.” See Wikipedia link below:

https://en.wikipedia.org/wiki/Rainy_Night_in_Georgia

PWS

12/29/16

Asylum Free Zones in the U.S. Examined by Inter-American Commission — Ignites Dialogue Pro and Con

http://immigrationimpact.com/2016/12/20/asylum-free-zones/

This article by Katie Shepard in Immigration Impact fueled a “spirited dialogue” among my long-time Lawrence University friend Thomas “The Mink” Felhofer, a retired Postmaster and U.S. Navy Veteran from Sturgeon Bay, WI; my former BIA colleague Hon. Lory D. Rosenberg; my former colleague, Retired U.S. Immigration Judge Bruce Einhorn, of Los Angeles, CA; and me. For those interested, I’ve tried my best to recreate the back and forth (most of which occurred before the birth of immigrationcourtside.com) in the “Comments” section below. Further dialogue is always welcome!

PWS

12/29/16

More From Nolan Rappaport in “The Hill” on How the Trump Administration and Congress Could Agree on Immigration Reform

http://thehill.com/blogs/pundits-blog/immigration/310078-to-control-immigration-trump-needs-to-think-outside-the-wall

http://thehill.com/blogs/pundits-blog/immigration/311243-gop-immigration-bill-gives-dreamers-a-break-hardliners-a-bone

I found some common themes:

The Trump Administration needs to “Think Outside the Wall.” Without some fundamental changes from Obama Administration policies and Trump rhetoric, nothing is going to change.
There must be some type of legalization for “Dreamers” and others to get Immigration Court dockets back under control.
Interior enforcement must be reinstated and employer sanctions enforced to cut off the “magnet” for undocumented immigration.
Everyone involved must work together and compromise for our immigration system to be credible.

PWS

12/29/16

Former Chief Immigration Judge Brian M. O’Leary Wraps Up Distinguished Three-Decade Career in Public Service

Judge Brian M. O’Leary will be retiring from the U.S. Immigration Court in Arlington, Virginia at the end of this year, thus closing out an exceptional three-decades of public service in the field of immigration.

Judge O’Leary served as the Chief Judge of the United States Immigration Court from 2009 until 2015. After stepping down as the Chief Immigration Judge, he worked temporarily as an Appellate Immigration Judge (“Temporary Board Member”) at the Board of Immigration Appeals, in Falls Church, Virginia, the Appellate Branch of the U.S. Immigration Court. Judge O’Leary returned to the U.S. Immigration Court in Arlington in July 2016. He previously sat at the Arlington Court from 2007 until his appointment as Chief Judge in 2009.

Judge O’Leary graduated from the Georgetown School of Foreign Service and the New England School of Law. He joined the U.S. Department of Justice under the Attorney General’s Honors Program as a Trial Attorney in the Miami Office of the Legacy INS (during my tenure as the INS Deputy General Counsel). He also served as a Special Assistant U.S. Attorney in the Southern District of Florida and the Eastern District of Virginia and was rapidly promoted to the Office of General Counsel at INS Headquarters. There, he served as an Assistant General Counsel, Deputy Associate General Counsel, and Associate General Counsel before his appointment as an Immigration Judge with the Executive Office for Immigration Review.

Judge O’Leary held executive positions as an Assistant Chief Immigration Judge and a Deputy Chief Immigration Judge, as well doing a previous stint as a Temporary Board Member. He was Chief Immigration Judge during a most challenging period in the history of the Immigration Court. At all times, Judge O’Leary had an unwavering commitment to the due process vision of the Immigration Court, to the individuals coming before the Immigration Court, and to the Immigration Judges and support staff who worked for the Court.

At the Arlington Court, Judge O’Leary was known for his fairness, scholarly opinions, hard work, organization, and unfailing courtesy too all who entered his courtroom. Behind the scenes, “Mickey,” as he was sometimes known to his colleagues, demonstrated collegiality, a subtle sense of humor, and consistent kindness to the Court staff. Can’t ask for a better judicial legacy.

On a personal note, I appreciate all of the friendship, camaraderie, good humor, and support that Judge O’Leary gave me over his long career. I congratulate him on his contributions to the American justice system and his retirement. I hope that he will have more opportunities to watch his beloved Red Sox in person at Fenway this summer.

Best wishes, always, to a great Judge and a wonderful colleague.

PWS

12/28/16

Writing In “The Hill,” BIA and Congressional Staff Vet Nolan Rappaport Says Trump Must Combine Legalization With Interior Enforcement to Succeed

http://thehill.com/blogs/pundits-blog/immigration/311994-thanks-to-obamas-immigration-legacy-trump-inherits-our-home

“As of the end of Nov. 2016, the average wait time for a hearing was 678 days. President-elect Trump will have to reduce the population of undocumented immigrants to a manageable level with a very large legalization program before he will be able to address the home free magnet.

Also, so long as immigrants who want to come here illegally think that they will be safe from deportation once they have reached the interior, they will find a way to get past any wall that he builds to protect our border.”

Nolan’s thoughtful article gives a great summary of the prosecutorial discretion (“PD”) programs put into effect by the Obama Administration. Although Nolan is is OK with the concept of PD, he believes that by formalizing and publicizing the PD program, the Obama Administration has given a “home free” signal to undocumented migrants who reach the interior of our country. Nolan believes that this acts as both a magnet for undocumented immigration and a barrier to effective immigration reform legislation.

I agree with Nolan that removal of most of those with cases backlogged on the Immigration Court dockets will prove impractical. I also agree with him that the huge backlogs and lengthy waiting times for hearings have robbed the Immigration Court system of credibilty. But, with due respect, I tend to doubt that addressing “the home free magnet” is the primary answer to a workable system.

First, I think that human migration is an historic phenomenon driven primarily by forces in sending countries which we do not control. Addressing the “root causes” of these problems has proved elusive. Efforts to provide assistance through foreign governments have been largely unsuccessful because of endemic corruption and lack of the necessary infrastructure. Efforts administered by the State Department and USAID within foreign countries have shown some promise, as described in one of my earlier blogs (12/26/16). Yet, to date, they appear to be too labor intensive and too limited in the number of individuals who can be reached to have a major effect on migration patterns.

Additionally, I doubt that migration will be controlled without legislative changes and expansion of our legal immigration system to better match supply with demand. Currently, the demand for immigration by U.S. citizen and lawfully resident families, U.S. employers, and displaced or threatened individuals in foreign countries far exceeds the supply of available visas. Continued immigration is a reality and, in fact, a necessity for our nation’s prosperity. Until there is a better balance between supply and demand, individuals will, as Nolan suggests, continue to breach any walls or interdiction systems that we can construct. And, differing from Nolan, history shows that they also will evade interior enforcement efforts which, in any event, will prove to be costly, ineffective, disruptive, and unacceptable from a civil liberties standpoint.

Yes, I know this isn’t what folks, particularly those “outside the Beltway,” want to hear. But, the fact that my message might be unpopular in today’s climate doesn’t necessarily mean that I’m wrong.

Immigration is a complicated issue that will require thoughtful, creative, cooperative, and human-oriented solutions. Merely doubling down on enforcement, whether popular or not, will not give us control over human migration.

On an historical note, I greatly appreciate Nolan’s citation and link to the July 15, 1976 memorandum on prosecutorial discretion from INS General Counsel Sam Bernsen to Commissioner Chapman, which I wrote. Go to the link and check out the initials at the end. Oh, for the “good old days” of “real” carbon copies!

PWS 12/28/16

Maryland Schools Move to Quell Migrant Student Fears

https://www.washingtonpost.com/local/education/schools-warn-of-increased-student-fears-due-to-immigration-arrests-trump-election/2016/12/26/a4b2b732-c0a7-11e6-b527-949c5893595e_story.html?utm_term=.9fd1b4cc1447

“Much of what schools want to convey is that students are not in peril when they are on campus.

Student absences do not appear to have spiked in recent weeks, but Nora Morales, diversity officer in the Prince George’s school system, said the district wants to make sure that families understand educators do not ask about immigration status and would not share such information if they knew it.

‘My primary concern is that our school community knows our schools are safe spaces and that students will be valued, respected and welcomed,’ she said. ‘There are a lot of unanswered questions about immigration reform. One thing remains constant: If kids don’t show up to school, they won’t learn.'”

As a Judge, my advice to youth coming before me was: “Go to school, study hard, get all the education that you possibly can. However your case comes out, your education belongs to you. Nobody can take it away from you, and it will make your life better.” I usually asked them about their grades, as well as their extracurricular activities. If there were any below “B,” I made them promise to improve. Most of them brought their report cards showing improvement to the next hearing. I also told them they needed to help their parents around the house.

Many of them had parents working two jobs. The older kids were basically in charge of the household, in addition to going to school, and often playing soccer, playing in the band, or being in the science club. Remarkable young people.

PWS

12/27/16

A Christmas Wish — Protect Children Seeking Refuge — Let Them Out of Jail — Get Them Lawyers — Treat Them As If They Were Ours — Because They Are

http://immigrationimpact.com/2016/12/23/wish-holiday-season/

In this article which I found on Immigration Impact, Katie Shepard says:

“The 19 children who will likely be spending the holidays in detention range in age from three to fifteen-years-old. In fact, just last week, the youngest child being held in the Berks detention facility turned three. This little boy fled Honduras with his mother after being targeted by the gangs and threatened with kidnapping and violence. He has spent more than half his life in detention.

Imagine going through such a harrowing journey to then have those you’ve asked to protect you, fail you. I don’t believe this nation can or should allow the most vulnerable among us to be held for prolonged periods, robbed of their access to a fair and just process, and left without protection. We can and must do better.

My wish this holiday season is that we find a way to do right by these families. My wish is that they, like me and many of you, will be able to live safe and happy lives with the people they love.”

I had similar thoughts. During the Christmas Eve service at our church, we offered the following prayer: “Tonight we give thanks for every child among us. Each new birth — regardless of circumstances — reminds us of the preciousness of life, the potential of tomorrow, the promise of God.”

We say these words, but our country is falling short in its humanitarian and human obligation to protect vulnerable children. We treat them as statistics, a “border surge,” an “enforcement problem,” a plague that should be deterred and discouraged. In plain terms, we seek to dehumanize the most vulnerable and needy humans among us. We detain them, expedite their cases, and tell Federal Courts that they can represent themselves in complicated, life determining, legal proceedings that baffle many smart attorneys, judges, and scholars. Where is the mercy, compassion, kindness, humility, and championship of the downtrodden shown by Christ?

As I have previously said in my own op-ed:

“Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to ‘stem the tide.’ It is time to demand an immigrant justice system that lives up to its vision of ‘guaranteeing due process and fairness for all.’ Anything less is a continuing disgrace that will haunt us forever.”

You can read my full op-ed which has been published in LexisNexis Immigration Community by clicking on this link:

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2016/10/18/saving-child-migrants-while-saving-ourselves-hon-paul-wickham-schmidt-ret.aspx?Redirected=true

Its is also posted on the index and information toolbar of this Blog.

PWS

12/26/16

Trump Administration Will Have Huge Influence on Federal Courts — Particularly the U.S. Immigration Court

https://www.washingtonpost.com/politics/trump-to-inherit-more-than-100-court-vacancies-plans-to-reshape-judiciary/2016/12/25/d190dd18-c928-11e6-85b5-76616a33048d_story.html?hpid=hp_rhp-top-table-main_trumpjudges805p:homepage/story&utm_term=.3eb2c51133dc

According to this article from today’s Washington Post, the incoming Trump Administration is preparing to fill more than 100 lifetime Federal Judicial appointments in addition to an existing vacancy on the Supreme Court. That’s almost twice the number of vacancies that were available to the incoming Obama Administration eight years ago. The article points out that since these appointments require Senate confirmation, Democrats might have some bargaining power. But, with Republicans in the majority, that’s likely to be quite limited.

However, there might be an even bigger opportunity available for the incoming Administration — reshaping the U.S. Immigration Court System for many years to come. Plagued by a self-created ponderously glacial selection and hiring process, and a badly outdated and ineffective court structure and administration, the Obama Administration is on track to leave nearly 100 out of the just under 400 authorized U.S. Immigration positions “on the table.” Additionally, there currently are two vacancies on the critically important Immigration Appeals Court (known as the “Board of Immigration Appeals”), which is effectively the “Supreme Court” of immigration law, with authority to decide tens of thousands of appeals annually and to set binding precedents for our nation’s more than 50 U.S. Immigration Courts. Beyond that, a significant number of the most experienced Immigration Judges are “baby boomers” who are currently eligible to retire or will become eligible shortly. For most of the Obama Administration, Immigration Judge hiring has barely exceeded the retirement replacement rate.

The bulk of the currently unfilled vacancies were relatively recently authorized by a bipartisan Congressional effort. But, not so recently that they could not have been filled by a management process that treated them as what they are — probably the most important large group of senior career Civil Service positions in Government and certainly within the U.S. Department of Justice, the repository for the Immigration Courts. Beyond helping to authorize the additional positions, however, Congressional Democrats have paid scant attention to the public unraveling of our Immigration Court system during the past eight years.

With over 500,000 pending cases, the Immigration Court System actually has a larger caseload that the entire U.S. District Court System — Civil and Criminal Dockets — with only about 60% of the authorized number of judges. Moreover, unlike U.S. District Court Judges, who are appointed by the President for life with Senate confirmation required, U.S. Immigration Judges are civil servants appointed by the Attorney General, and they serve at his or her pleasure. Consequently, Democrats cannot point the collective finger at Republicans for the high vacancy rate and the dismal state of justice in our largely dysfunctional Immigration Court System. Republicans generally have supported more resources for the overburdened Immigration Courts, and the hiring process has been within the sole control of the Obama Administration’s Department of Justice.

Assuming confirmation, new Attorney General Jeff Sessions potentially could select approximately 25% of the Immigration Judiciary, with more down the road. No Senate confirmation is required, and the new Attorney General would not be bound to follow the current hiring practices.

Because Due Process — the Immigration Courts’ one and only mission — should be a nonpartisan, nonpolitical issue, I hope that Attorney General Sessions will establish an efficient, strictly merit based hiring system that will be transparent and provide opportunity for meaningful input and participation from all segments of the immigration community, including practitioners, clinicians, and non-governmental organizations, as well as government entities involved in the administration of our immigration laws. For example, the board-based merit selection processes used for U.S. Magistrate Judges and U.S. Bankruptcy Judges have won widespread acclaim for putting professional qualifications and demonstrated excellence before partisanship.

But, if that doesn’t happen, and Democrats don’t like the results, they will have only themselves to blame for failing to pay attention and make the needed administrative and structural improvements to our critically important Immigration Court System over the past eight years.

PWS

12/26/16

Washington Post Profile Describes AG Designate Jeff Sessions’s Mixed History on Civil Rights

https://www.washingtonpost.com/news/arts-and-entertainment/wp/2016/12/22/alex-trebeks-emotional-tribute-to-cindy-stowell-cancer-stricken-jeopardy-champion/?utm_term=.efcec098c60b

If confirmed as AG (and I saw nothing in this article to suggest that he won’t be) Senator Sessions would be in charge of the United States Immigration Court System (including the Appellate Court, a/k/a the Board of Immigration Appeals), one of the largest, if not the largest — more pending cases than the entire U.S. District Court System — and most important Federal Court Systems.

PWS

12/25/16

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