Quotas for Immigration Judges – Page 17

LORELEI LAIRD @ ABA JOURNAL: Judges Make The Case For An Independent Article I U.S. Immigration Court, Featuring Interviews With “Our Gang” Members Judge Carol King & Me!

http://www.abajournal.com/magazine/article/immigration-judges-executive-politicizing-courts

Lorelei writes in the ABA Journal:

There was no reason to think that the relatively routine immigration case of Reynaldo Castro-Tum would make headlines.

Castro-Tum, a Guatemalan national who entered the United States at 17, was one of thousands who were part of 2014’s “surge” of unaccompanied minors. Like most of those minors, he was eventually released to the custody of a relative—in this case, a brother-in-law who lived outside Pittsburgh. The government repeatedly sent notices to appear at immigration court hearings to that address, but Castro-Tum never showed up.

Normally, that’s the end of the story, since failure to appear in immigration court generally results in a deportation. But Judge Steven Morley of the Philadelphia immigration court suspected the address on file for Castro-Tum was not correct, in part because that’s a common problem with addresses provided for unaccompanied minors. So Morley administratively closed the case, essentially pausing it to look into the address problem. The government appealed it, along with about 200 similar cases, and the Board of Immigration Appeals, the court of next resort in immigration cases, instructed Morley to deport Castro-Tum.

But before he could do that, then-Attorney General Jeff Sessions assigned the case to himself, a power the attorney general has as the head of the federal agency that controls the immigration courts. His opinion in Matter of Castro-Tum, issued in May 2018, says immigration judges have no legal authority to administratively close cases. That alone would have been a big deal in the immigration law world because it took away a well-established tool for managing the already overwhelmed immigration court dockets.

Photo of Former Attorney General Jeff Sessions by Shutterstock.

But what came next drew widespread attention among immigration lawyers as well as the national media, catapulting the otherwise unknown case of a single teenage immigrant into the spotlight. On remand, Morley continued the case to resolve the address problem—and immigration court leadership promptly took it away from him, reassigning it to an administrative judge. Then they reassigned 86 more of his cases. According to a grievance filed by the National Association of Immigration Judges, the union that represents Morley, a supervisor told him that he had been expected to order Castro-Tum deported if he didn’t appear.

NAIJ President A. Ashley Tabaddor says that’s not actually in Sessions’ opinion—and if it were, it would violate federal regulations on immigration judges’ independence. (Morley, like most sitting immigration judges, could not comment on the case per Justice Department policy. Tabaddor, who is also a sitting judge, stresses that she is speaking only in her role as union president.)

“We think that is a clear, clear violation of a judge’s decisional independence,” says Tabaddor, who presides in Los Angeles. “When you tell a judge how the process … should be handled, by definition, that is going to have an impact, and a significant impact, on the outcome.”

The Executive Office for Immigration Review, the DOJ agency that controls the immigration courts, declined to comment, citing pending litigation. Tabaddor said in January that she was unaware of litigation related to the matter.

Before Sessions’ opinion, the ABA had urged in an amicus brief to the DOJ that the attorney general continue to allow administrative closure in immigration cases, citing it as a “practical necessity” for judges to deal with the courts’ huge backlog.

Immigration courts have always been susceptible to politics; presidents have, for example, rearranged dockets to suit their political needs. But the NAIJ and others are concerned that the Trump administration has moved from reprioritizing cases to deliberately trying to affect case outcomes. Changes that have caused concern include unilateral changes to case law, like the one Sessions made in Castro-Tum; pressure on judges to rule faster; and even allegations that the DOJ is considering political affiliation in hiring new immigration judges.

“It’s all part of what our association has referred to as ‘the deportation machine,’ ” says Jeremy McKinney, treasurer of the American Immigration Lawyers Association. “In other words, transforming a court that is supposed to be an independent and neutral trier of law and fact into an arm of law enforcement.”

A TROUBLED HOME

For critics, a major problem with the immigration courts is where they’re housed: within the Department of Justice, an executive-branch department headed by a politically appointed leader. That’s unlike the Article III federal courts or most of the federal administrative law courts.

Immigration law observers have long worried that this exposes the courts to political interference—and recent history supports that. In 2008, the Justice Department’s Office of the Inspector General found that political appointees had hired only politically connected Republicans as immigration judges between 2004 and 2006, despite knowing judges were part of the civil service system. Over the past 30 years, several attorneys general have referred themselves cases in order to overturn the decisions of predecessors from a different party. Presidents of both parties have reprioritized dockets for political reasons.

Most of that is perfectly legal and within the political leadership’s powers—and to some observers, that’s a problem. Take the fact that attorneys general may certify Board of Immigration Appeals cases to themselves. There’s no requirement that they follow precedent or consult anyone else. This permits an attorney general to change case law unilaterally.

“Just allowing that kind of interference compromises the integrity of the court,” Tabaddor says. “Because that’s not how a court is supposed to run. That’s not how law is supposed to be developed.”

Asked for comment on the matter, Justice Department speechwriter Steven Stafford noted that the attorney general’s legal authority to refer himself cases, and authority to control the immigration courts and their judges, is clear under the Immigration and Nationality Act.

“Further, the acting attorney general’s exercise of this authority has been entirely appropriate in each particular case,” Stafford said in an emailed statement. “Those who oppose the use of this authority have a problem not with the acting attorney general, but with the INA.”

If this power of the attorney general is obscure, that might be because most—from both parties—have used it sparingly. Using DOJ archives of agency decisions, the ABA Journal determined that over three eight-year presidencies, former President Barack Obama’s two attorneys general referred themselves a total of four cases; George W. Bush’s three AGs referred themselves 10 cases; and Bill Clinton’s one AG referred herself one case. The ABA Journal found no record of any self-referrals during new Attorney General William Barr’s first time in the job, from 1991 to 1993.

By contrast, Sessions referred himself seven cases during 21 months in office, though he was able to publish decisions on only five before President Donald Trump asked him to resign.

Any hope that former Acting Attorney General Matthew Whitaker would take a lighter touch were dashed in December, when Whitaker certified two cases to himself: Matter of Castillo-Perez, concerning intoxicated driving and the good moral character standard in immigration law, and Matter of LEA, on whether a family connection can be the basis of an asylum claim. The cases were waiting for Barr after he was sworn in.

And the decisions Sessions handed down are not small tweaks. Take Matter of AB, in which Sessions decided that asylum should only rarely be available to people fleeing serious crimes not sponsored by a government. (“AB” are the initials of a woman who said she suffered prolonged domestic violence in El Salvador.) Essentially, Sessions ruled that when the persecution doesn’t come from the government itself, asylum claimants must work harder to show that the home government couldn’t or wouldn’t protect them.

“In practice, [nongovernmental violence] claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address,” Sessions wrote. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

Infographic by Sara Wadford

In making that ruling, Sessions swept away precedents set by the Board of Immigration Appeals and the federal appeals courts on what constitutes a “particular social group” under asylum law.

“The attorney general did not rewrite the underlying test for who qualifies for asylum and who does not,” says McKinney, who also runs McKinney Immigration Law in Greensboro, North Carolina. “He just announced that he would have applied the test differently, and his result would have been different. It’s a very, very strange way to issue sweeping precedent decisions.”

Photo of Jeremy McKinney by Shelli Craig Photography

The ruling also removed the basis for asylum claims from thousands of Central Americans who arrived in the United States in recent years to flee uncontrolled domestic abuse or gang violence in their home countries. Retired immigration Judge Paul Wickham Schmidt does not believe that’s a coincidence.

“The grounds that some people have been succeeding on are domestic violence and family-based claims,” says Schmidt, who belongs to the ABA Judicial Division’s National Conference of the Administrative Law Judiciary.” So it’s basically in my view a race-based attack on Central American asylum seekers.”

Because of this, Matter of AB attracted substantial attention. Sessions invited amicus briefs, and the ABA was one of many organizations that filed one, urging the attorney general to let the case law stand. That brief argues that federal appeals courts and the board of appeals have repeatedly found non-state-sponsored crimes—organized crime, “honor killings,” female genital mutilation—adequate for granting asylum. It also pointed out that the attorney general may not unilaterally overturn decisions of the federal appeals courts; the American Civil Liberties Union later cited this theory when it sued the federal government over AB. It won an injunction in that case in December.

It’s still possible to grant asylum on gang or domestic violence grounds, says retired immigration Judge Carol King, also part of the National Conference of the Administrative Law Judiciary, but everyone doesn’t see it that way.

“The danger is that the agency has been now encouraging judges not even to hold hearings if the cases are based on domestic violence,” says King, now a Berkeley, California-based consultant to immigration lawyers.

GUMMING UP THE WORKS

And that’s just asylum. For the immigration court system as a whole—and especially for working immigration judges—bigger problems have emerged from three decisions from Sessions that constrain judges’ ability to end or pause cases. That could worsen the already substantial backlog of cases in immigration court, which totaled more than 829,000 pending cases as of February, according to Syracuse University’s Transactional Records Access Clearinghouse.

Chief among these is Castro-Tum, the administrative closure case. Administrative closure ends a case without a decision, which permits judges to take cases off their dockets if they’re not ready to go forward. This was Morley’s intention in Castro-Tum, where the judge was concerned that the young man’s address was unreliable. Indeed, Tabaddor says the notice to appear was returned to the court after Castro-Tum was ordered deported; immigrant advocates suspect he may have returned to Guatemala.

There are multiple reasons why a pause might be desirable, McKinney explains. Many immigration cases depend on outside agencies’ actions; the State Department issues visas, and U.S. Citizenship and Immigration Services confers green cards and citizenship. Some benefits are also available through state courts, and cases may hinge on a decision from a police agency or an expert of some kind.

For example, McKinney cites special immigrant juvenile status. That’s an immigration status granted to minors who were abandoned, abused or neglected by one or both parents, and recipients must get a court order saying so.

“You go through state court, and then you submit an application to USCIS,” McKinney says. “So what we would see generally is these cases would be either administratively closed or given extended continuances, and then the person would pursue the status. Those kids are now being ordered deported.”

Continuances could have helped, but three months after Castro-Tum, Sessions handed down another decision, Matter of LABR, that requires judges to write a full decision every time they grant a continuance.

“I probably got five to 40 requests for continuances daily when I was on the bench,” King says. “It discourages granting continuances because they’re not requiring the same sort of diligence if a judge denies the continuance.”

Photo of Carol King by Allan Brill

That’s why King believes LABR weighs the decision-making in favor of deportation. It’s also likely to drastically limit judges’ ability to end or postpone cases, along with Castro-Tum and a third decision from Sessions—Matter of SOG and FDB, which limits judges’ ability to terminate or dismiss deportation cases. In addition to making it harder for judges to manage their workloads, King says it’s bad for the system as a whole.

“It means that every case has to come into court, and if it’s not ready to go for some reason, it has to be reset in court,” she says. “It encourages double-booking of cases … which means that parties are not encouraged to be prepared.”

For clients and practitioners, McKinney says the end result is likely to be a flood of appeals.

“We had a 10-year-old ordered deported [while waiting for a USCIS decision],” he says. “Do you think we just said, ‘OK, judge,’ with the 10-year-old and then just took our order of deportation? No, we appealed!” After the Board of Immigration Appeals, litigants can take their cases to the federal appeals court for their circuits, and McKinney believes many will. Thus, he predicts that much of the immigration court backlog will filter up to the appeals courts in a few years.

CARROT OR STICK?

The DOJ is well aware of the backlog and has hired judges aggressively to address it. Several of the actions Sessions took on immigration were announced as ways to address that backlog.

That includes another of his controversial decisions: imposing quotas on immigration judges. Starting with the 2019 fiscal year, judges who want to be rated “satisfactory” on their performance reviews must complete at least 700 cases per year. No more than 15 percent of those cases should be overturned on appeal. There are also completion requirements for specific types of cases. A software dashboard allows judges to check their progress daily.

Asked about this in December, Executive Office for Immigration Review spokeswoman Kathryn Mattingly pointed the ABA Journal to a public conversation that agency Director James McHenry had in May 2018 with Andrew Arthur, executive director of the restrictionist Center for Immigration Studies. McHenry told Arthur that EOIR plans to take circumstances into account when evaluating judges under the new standards—most likely in fall 2019. However, McHenry said EOIR believes that the numbers chosen are reasonable expectations for experienced and properly trained judges.

The NAIJ and some retired judges don’t agree, in part because two judges may handle very different kinds of dockets. Cases involving serious criminal convictions, for example, might be quicker than asylum cases involving unaccompanied minors.

McHenry also testified about the changes before Congress, where he said the performance measures were “neither novel nor unique to EOIR,” and in line with measures recommended by the ABA and used by other federal administrative law systems.

Tabaddor sees that differently.

“The numbers are used as what I would say a carrot in many courts; it’s used to evaluate whether [changes] are needed,” she says. “But no legitimate court uses quotas and deadlines as a stick to put a judge’s job on the line, which directly interferes with their ability to sit impartially on a case.”

The ABA Judicial Division’s 2005 Guidelines for the Evaluation of Judicial Performance do not mention case completions. They say judges should be evaluated on legal ability, integrity, communication, professionalism and administrative ability. They also say evaluations shouldn’t compromise judicial independence and “should be free from political, ideological and issue-oriented considerations.”

King doesn’t think that’s the case here.

“To have judges evaluated on how quickly they’re pushing cases through the system is a really, really dangerous thing to do,” she says. “Because you’re basically tying the judges’ job security to whether they’re pushing cases through, and it’s clear from this administration that their idea with pushing cases through the system is to deny as many as possible.”

Tabaddor sees this as another encroachment on immigration judges’ independence.

“It’s basically psychological warfare with judges, [creating] a constant reminder of their numbers through this dashboard and a constant pressure to reach these unreasonable goals,” she says.

McKinney says he has seen this play out in practice. In one case, he discovered that his client’s minor child had been sexually assaulted in their home country, which became important to the family’s asylum application. The minor had not spoken to a mental health counselor, so McKinney moved for a continuance to allow her to do that. The judge denied it, in part because the evidence for the assault was not from a mental health professional.

“So what we got was … only half-baked consideration, because obviously in the motion we are asking for the time to talk to the precise professional that the judge wanted the minor child to talk to,” he says. “That is the pressure these judges are under.”

JOB OFFERS RESCINDED

The Justice Department actions raised earlier in this story may be concerning to some people, but they’re perfectly legal. However, there are also allegations that the Justice Department is taking politics into account in hiring immigration judges, who are part of the civil service system. The allegations have not been proved—but if true, they might break the law.

Washington, D.C., labor law attorney Zachary Henige says he has been approached by several people who were offered jobs as immigration judges or members of the Board of Immigration Appeals but had those offers rescinded after the 2016 election for what they believe are political reasons. The ABA Journal spoke to Henige about Dorothea Lay, the only client who has authorized him to discuss her case.

Photo of Zachary Henige courtesy of Kalijarvi, Chuzi, Newman & Fitch.

Lay has spent 25 years in the federal government’s immigration services agencies, and she is currently at USCIS. She was offered a job at the appeals board in October 2016. This required a fresh background check (she already has clearance at her existing job), so she understood that she would have to wait to finalize the job.

In late February 2017, Lay did hear back—but only via a two-sentence letter. It said that during the time it had taken to complete the background check, the needs of the agency had evolved, so EOIR was withdrawing the offer. However, the letter was postmarked on the same day that EOIR announced it would expand the number of seats on the board from 17 to 21—requiring four new hires. That’s one reason Lay was not convinced the agency’s needs had changed.

Another was that two of Lay’s recommenders were political appointees of Democrats. Her application also showed that she had worked on issues the Trump administration strongly opposed, including domestic violence as a basis for asylum, the issue in AB. Thus, it would have been easy to guess her politics. Asked about the allegations, EOIR spokeswoman Mattingly did not address them specifically, instead redirecting her comments about others who were hired.

Lay is pursuing a complaint through the federal government’s Office of Special Counsel, an independent agency that investigates alleged violations of the merit system for federal employees. Henige says he has been approached by others who had job offers rescinded after the election, not all of whom retained him.

Members of Congress have also gotten involved. In April 2018, Democratic Reps. Elijah Cummings of Maryland, Don Beyer of Virginia and Lloyd Doggett and Joaquin Castro of Texas wrote a letter to the Justice Department, saying multiple people had approached their offices after having job offers suspended or withdrawn for suspected political reasons.

Six people were hired not long after the letter, according to a statement from Cummings and Doggett. The DOJ did not make its response public, but that response was apparently leaked to Fox News, which said the DOJ acknowledged that 14 people were no longer under consideration for jobs, and gave nonpolitical explanations for all of those decisions.

Henige notes that there’s precedent for improperly politicized hiring, including the 2008 inspector general report from the DOJ. After that became a scandal in 2007, then-Attorney General Alberto Gonzales implemented a hiring process intend-ed to insulate the immigration courts from political considerations, with final candidate recommendation duties shared by the EOIR director, a senior career employee and a senior political appointee.

In 2017, however, Sessions authorized substantial changes to that process, according to a memo uncovered by Human Rights First, a New York-based nonprofit that advocates for human rights and the rule of law, through the Freedom of Information Act. Those changes removed the EOIR director or his designee from the final recommendation stage and removed the chief immigration judge from an earlier stage. The effect is less direct oversight from the agency that will actually employ the judges, and a greater proportion of responsibility to the political appointee.

HIT THE ROAD, JUDGE

Immigration judges aren’t on the edge of revolt. Not every judge agrees with the NAIJ or the retired judges quoted for this article. Arthur, for example—a retired immigration judge—has praised both the use of self-certifications and some of the decisions Sessions made that way.

Perhaps more importantly, immigration judges have limited recourse. As career federal employees, they aren’t legally permitted to strike, Tabaddor says, and lawsuits are limited to cases of individual judges with specific grievances. She says labor union negotiations have been minimally helpful. The grievance filed after the cases were taken from Morley was denied by EOIR last fall on the grounds that EOIR’s actions were lawful, and the NAIJ has merely filed formal correspondences on other matters.

Photo of Ashley Tabaddor by Melodi Miremadi

That’s why Tabaddor wants a more permanent solution: Take the immigration courts out of the Justice Department and put them into an independent agency.

“It’s been done with the bankruptcy courts, it’s been done with the Court of Federal Claims, it’s been done with Tax Court,” she says. “Having a court within the same agency that basically has a law enforcement mandate cannot be defended.”

Mattingly says EOIR believes this is unnecessary and would take substantial resources. But it’s a long-standing goal—not just for NAIJ, but for the ABA House of Delegates, which called for independent immigration courts in 2010’s Resolution 114F. More recently, former ABA President Hilarie Bass testified before the Senate Judiciary Committee’s Subcommittee on Border Security and Immigration in 2018 in favor of independent immigration courts, as did Tabaddor. Arthur testified against it, citing constitutional concerns. Immigration court independence has also long been on the wish lists of AILA and the Federal Bar Association.

The four organizations have been working on legislation to make that a reality, McKinney says, though the coalition differs on details of how best to structure the agency. But the goal is the same: insulating the immigration courts from politics by moving them into an independent agency.

McKinney, who is actively involved in the effort through AILA, notes that major agency reforms don’t happen overnight—but he’s bullish about the possibilities.

“We have seen some genuine interest, and now that the Democrats are taking control of the House, we will see if that can turn into actual legislation,” McKinney says. “My heart goes out to the literally thousands of people who are going to be victims of this flawed system until the day comes that we can get it fixed. But I believe that we can get it fixed.”

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Jeremy McKinney is right. Thousands of humans have been and will continue to be victimized by this screwed up system until it finally gets fixed. Immigration Judges have become “robed pawns” in what has become a cruel parody of justice. And, to be honest about it, far, far too many Article III Judges “punt” on their oaths of office by giving unwarranted “deference” to a system that merits none. Indeed, in a “court” controlled by prosecutors and driven by overtly political, restrictionist agendas, it would make much more sense and be fairer to presume that each removal order is biased in favor of DHS unless the DOJ can establish otherwise.

PWS

03-29-19

PACIFIC STANDARD: The Call For An Independent Article I U.S. Immigration Court Gets Louder! — Systemic Failure Of Due Process “At The Retail Level” Threatens Our Entire Justice System! — “Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case.”

https://apple.news/Ai3XNRy5DTI2o3SbYAJuS_A

Massoud Hayoun reports for Pacific Standard:

Is It Time to Bring the Nation’s Immigration Courts Under the Judicial Branch?

U.S. immigration courts face an “existential crisis.” The American Bar Association says it has a solution.

The American Bar Association is renewing calls for lawmakers to overhaul the nation’s overwrought immigration court system by making the courts independent from the Department of Justice, and therefore from the Trump administration. The association is joined by a broad array of legal workers in accusing the administration of enacting policies that pressure immigration judges to ramp up deportations, with no apparent concern for due process or the rule of law.

The United States immigration court system is not part of the judicial branch, but rather is governed by the Department of Justice’s Executive Office for Immigration Review. The office was created to oversee the courts in 1983; previously they were under the control of the Immigration and Naturalization Service, also under the Department of Justice. Last week, the ABA identified an “existential crisis” within this system, finding it subject to “political interference,” to “policies and practices that threaten due process,” and to “longstanding and widespread under-resourcing.” It calls for a Congressional vote to establish the courts as an independent entity per Article I of the Constitution—also known as an Article I Court.

Shortly after President Donald Trump’s inauguration, his administration told the press that it would work to slash an overwhelming backlog of immigration court cases, restoring an overburdened, sclerotic system to working shape. What followed were a series of policies—among which were quotas on case closures—that observers blame for threatening due process in an effort to facilitate mass-deportation of immigrants, and for exacerbating the immigration court backlog by funneling unprecedented numbers of immigrants into the system.

The Department of Justice did not respond to a request for comment.

Ashley Tabaddor, president of the National Association of Immigration Judges, expresses her organization’s support for an independent immigration court. The ABA, NAIJ, and other organizations, including the Federal Bar Association, began to call for an independent immigration court system long before the Trump administration, during the presidency of Barack Obama.

“We hope that this administration and those mindful of a reasonable approach realize this isn’t a right-wing or left-wing answer; it’s an American answer that protects both efficiency and integrity of the courts,” Tabaddor says. “It hasn’t only been this administration that has pushed back on the idea of an independent [immigration court system]. Unfortunately, part of human nature is it resists what it perceives as giving up power. It means the executive branch would lose direct influence over how [the courts are] used.”

Although the Trump administration has repeatedly acknowledged the backlog and overwhelming challenges faced by immigration judges, it has also opposed an independent immigration court system. James McHenry, director of the Department of Justice office that oversees the courts, told a Senate committee in April that independent courts would not “address any of the core challenges facing the immigration courts.” McHenry repeatedly maintained that all immigrants are afforded due process.

Legal analysts argue, by contrast, that the current status of immigration courts as under the purview of the Department of Justice has politicized their work. “Our current system permits the political branches of government to yield tremendous power over immigration enforcement policies and practices,” says Kathleen Kim, an immigration law professor at Loyola Law School in Los Angeles. “Without an independent judiciary, our system of government provides no check on abuse of that power and immigration court decisions suffer from the taint of impartiality.”

And with a court beholden to the president’s political agenda, immigrant lives—and the Constitution’s guarantees of fair trials—hang in the balance. “As we have seen in the anti-immigrant rhetoric of the Trump administration, the rights of immigrants have become a political football,” says Margaret Russell, a constitutional law professor at Santa Clara University. “Only independent immigration courts can provide a fair forum, as free from partisan politics as possible.”

“Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case,” says Julia I. Vázquez, an immigrant rights professor at Los Angeles’ Southwestern Law School.

Late last year, Pacific Standard reported the story of a Guatemalan woman whose asylum petition had been denied even before a judge had an opportunity to review documents in support of her case, including her initial asylum declaration.

Despite the administration’s promises to help improve the immigration court system, analysts have decried a number of policies that they say have undermined the courts. In April of 2018, then-Attorney General Jeff Sessions required that immigration judges close at least 700 cases a year—with a low rate of appeal—in order to receive a favorable performance review. The move, ostensibly aimed at reducing the backlog, pressured the judges to plow through their caseloads, analysts have said, threatening due process for immigrants. And the move backfired: Rushed rulings are frequently appealed, further compounding the backlog.

In another similar measure in May, Sessions stopped the use of administrative closures, in which immigration judges withhold judgment on a case while immigrants make formal petitions for legal status. Administrative closures had helped judges to prioritize their dockets and avoid getting bogged down with lower-urgency cases.

Coupled with the administration’s unprecedented push to arrest undocumented immigrants with no criminal record, these decisions have made the court’s backlog grow nearly 50 percent under the Trump administration, according to the Syracuse University non-profit data research center, Transactional Records Access Clearinghouse. In November, there were over 768,000 outstanding cases.

Even with overwhelming concerns over backlog and broader questions about due process, it remains highly improbable that the immigration courts will become independent under a divided Congress and the Trump administration. “Keeping immigration courts within the executive branch will ensure adherence to the Trump administration’s anti-immigrant policy objectives,” Kim says.

What’s more, control of the immigration courts will enable the Trump administration to continue to ramp up deportations without the approval of a split Congress. “The opposition [to independent courts] is likely to defend executive branch oversight of immigration courts as the best antidote to Congressional inaction,” Russell says.

NAIJ’s Tabaddor says that, while it is not likely that immigration courts will be made independent anytime soon, there’s growing awareness among lawmakers from both parties of the problems with the system.

“As we see the expansion of the groundswell of support [for independence], it’ll be difficult for Congress not to act,” she says. “Of course, you always have to have hope in life, otherwise it’s not worth it.”

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EOIR’s “no problem” response to the unfolding disaster which, under DOJ political direction, its own bureaucrats have helped engineer “doesn’t pass the straight face test.”

Of course, giving control of Immigration Court dockets back to the judges who actually have to hear and decide cases is the necessary first step in rationalizing the system, ending the DOJ/EOIR’s “Aimless Docket Reshuffling,” and establishing priorities based on fundamental fairness to all parties and overall judicial efficiency, not solely the “DHS enforcement priority of the day.”

Nobody can solve overnight all the problems in our Immigration Courts that have built up and been allowed to fester over decades. But, placing the courts under apolitical, professional judicial control, like all other successful courts, would be a necessary first step from which “best practices” and other efficiencies that are consistent with Due Process would flow.

PWS

03-27-19

U.S. IMMIGRATION JUDGE JONATHEN SCOTT SIMPSON EXPRESSES FRUSTRATION WITH FECKLESS “COURT” SYSTEM THAT KOWTOWS TO DHS ENFORCEMENT’S “STAY IN MEXICO PROGRAM” — DOJ’s “Captive Courts” Expected To Assist DHS In Misusing Asylum Laws To Discourage & Punish Asylum Seekers”

https://www.cnn.com/2019/03/20/politics/asylum-return-to-mexico-hearing-migrant-protection-protocols/index.html

Priscilla Alvarez reports for CNN:

San Diego (CNN)Twelve asylum seekers required to stay in Mexico for the duration of their immigration hearings presented themselves one by one before an immigration judge over nearly four hours Wednesday. Each case appeared to raise a similar set of questions about the new policy for Judge Jonathen Scott Simpson, and the hearing culminated in a dose of skepticism from the judge.

“Several things cause me concern,” Simpson said toward the end of the hearing, as he weighed whether four asylum seekers who weren’t present should be removed in absentia.

RELATED: Homeland Security expands program of returning migrants to Mexico to await hearings

The migrants who appeared at the San Diego immigration court on Wednesday fall under the Migrant Protection Protocols program, informally known as “Remain in Mexico.” The program, which was initially rolled out in January at the San Ysidro port of entry, roughly 18 miles from the court, requires some asylum seekers to stay in Mexico to await their immigration hearings. Immigration and Customs Enforcement manages transportation to and from the border and court appearances.

The requirement that some of those seeking asylum stay in Mexico as they await their US court dates marks an unprecedented change in US asylum policy. As such, it has raised a host of questions among lawyers, advocates and now, immigration judges.

As of March 12, the US had returned 240 migrants to Mexico under these protocols.

The first spate of hearings, which got underway this month, have underscored outstanding issues with the new program, including the challenge of obtaining legal representation while in another country and providing notification of court dates to an individual without a fixed address. They have also revealed glitches in the system, in which conflicting dates are causing confusion among migrants over when to appear at a port of entry for a court appearance.

The largest group to attend court so far came Wednesday. The 12 asylum seekers — five with attorneys, seven without — participated in a master calendar hearing, the first hearing in removal proceedings.

Border Patrol facility over capacity as government struggles to keep pace in the Rio Grande Valley

In one case, a man seeking asylum who did not have a lawyer said he had been provided with a list of legal service providers by the government but had trouble understanding it.

“I was confused,” he told the judge. “I don’t know how to read and write. It becomes difficult.” He added: “In Mexico, it’s even more complicated. It’s more complicated than if I were here.”

“I understand it’s more difficult,” Simpson replied. “It’s not lost on me.”

All asylum seekers whose cases were scheduled for Wednesday were set up with merits hearing dates, where individuals provide evidence to substantiate their claims to remain in the US, or are given additional time to find legal representation. The dates were scattered among April, May and July.

In some instances scheduling issues arose, as Simpson explained that his afternoons for the next several months are dedicated to master calendar hearings for Migrant Protection Protocols. Merits hearings, therefore, would need to be scheduled for the mornings.

Senate panel approves Trump’s nominee to lead ICE

Given that asylum seekers must wait in Mexico, however, and therefore need time to be processed by US Customs and Border Protection before going to their hearings, mornings were out of the question.

“Immigration officers need four hours,” said Robert Wities, an ICE attorney.

“I can’t do an entire master calendar in the afternoon and merits hearing,” Simpson responded, later asking the ICE attorneys to explain in writing why it wouldn’t be possible for the asylum seekers to attend morning hearings.

In February, a coalition of immigrant advocacy groups asked a federal judge for a restraining order that would block the Trump administration from forcing asylum seekers to stay in Mexico while their cases make their way through the immigration courts. The hearing on the motion is scheduled for this Friday.

In the meantime, the administration may clarify or resolve those issues in the future in documents provided to the immigration court. But for now, immigration hearings for those asylum seekers waiting in Mexico are set to move forward.

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Can you imagine what would happen if the ICE Assistant Chief Counsel Robert Wities told a U.S. District Judge when he or she could or couldn’t schedule hearings? What if a private attorney said he or she would only appear in the afternoon? What kind of “court system” doesn’t give its own judges flexibility to set their own court schedules in the manner they believe will be most fair, effective, and efficient? Why has the statutory contempt of court authority that Congress conferred on U.S. Immigration Judges more than two decades ago never been implemented by the DOJ?

A real court would examine both the legality and the procedures that the DHS unilaterally, and apparently incompetently, put in place for their “Stay in Mexico” program. Deputy AG Rod Rosenstein’s rewriting of the oath of office notwithstanding, U.S. Immigration Judges, like other Federal employees, swear an oath to uphold our Constitution (e.g., Due Process) not an oath of loyalty to the Attorney General, the President, or the DOJ.

PWS

03-24-19

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019

ASSOCIATION OF DEPORTATION DEFENSE ATTORNEYS (“ADDA”)

NEW YORK CITY

MARCH 21, 2019

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT”

PAUL WICKHAM SCHMIDT

U.S. IMMIGRATION JUDGE (RETIRED)

Good evening. Thanks so much for coming out tonight. As you know, I’m retired, so I no longer have to give my famous, or infamous, “super-comprehensive disclaimer.” However, I do want to hold my fellow panelists, ADDA, and anybody else of any importance whatsoever “harmless” for my following remarks.

They are solely my views, for which I take full responsibility. That’s right, no party line, no “bureaucratic doublespeak,” no BS. Just the truth, the whole truth, and nothing but the truth, of course as I define truth.

In my brief “5-4-1 program,” I’m going to tell you five horrible problems infecting justice and Due Process in today’s U.S. Immigration Courts; 4 needed reforms, and one solution.

First, the problems, with which I’m sure most of you are painfully familiar. This isn’t a “court system” as any right-thinking person would envision it.

First, unlike any normal court system, the chief prosecutor, the Attorney General selects, directs, and “supervises” the “judges.” Not surprisingly, over the last decade, over 90% of the judges have come directly from government or prosecutorial backgrounds. Well-qualified candidates from private practice, NGOs, and academia have effectively been excluded from participation in today’s immigration judiciary. As part of his “improper influence” over the Immigration Courts, the Attorney General has imposed, over the objection of all judges I’m aware of, demeaning and counterproductive “production quotas” that elevate productivity and expediency over quality, Due Process, and fundamental fairness.

Second, notwithstanding that, according to the Supreme Court, “everything that makes life worth living” might be at issue in Immigration Court, there is no right to appointed counsel. Therefore, DOJ has taken the absurd position that infants, toddlers, and others with no understanding whatsoever of our complicated legal, asylum, and immigration systems are forced to “represent themselves” in life or death matters against experienced ICE Counsel. The Government disingenuously claims that this complies with Due Process.

Obviously, these first two factors give the DHS a huge built-in advantage in removal proceedings. But, sometimes that isn’t enough. Somehow, despite the odds being stacked against them, the individual respondent or applicant prevails. That’s when the “third absurdity” comes in to play.

The chief prosecutor, the Attorney General, can reach into the system and change any individual case result that he or she doesn’t like and rewrite the immigration law in DHS’s favor through so-called “certified precedents.” As you know, former Attorney General Sessions, a committed lifelong xenophobe and the self-proclaimed “king of immigration enforcement” exercised this authority often, more than the preceding two Attorneys General over the eight years they served. Sometimes he intervened even before the BIA had a chance to rule on the case or over the joint objections of both the individual and the DHS.

Fourth, this system operates under an incredible 1.1 million case backlog, resulting largely from what we call “Aimless Docket Reshuffling” or “ADR,” by DOJ politicos and their EOIR underlings. This largely self-created backlog continues to grow exponentially, even with a significant increase in judges, without any realistic plan for backlog reduction. In other words, under the “maliciously incompetent” management of this Administration, more judges has meant more backlog.

Even more disgustingly, in an attempt to cover up their gross incompetence, DOJ and EOIR have attempted to shift the blame to the victims — asylum applicants, migrants, their hard-working often pro bono or low bono lawyers, and the judges themselves. Sophomoric, idiotic non “solutions” like “deportation quotas for judges,” limitations on legitimate continuances, demeaningly stripping judges of the last vestiges of their authority to manage dockets through administrative closing, and mindlessly re-docketing cases that should remain off docket have been imposed on the courts over their objections.

The result has been an increase in “Aimless Docket Reshuffling” the only thing that DOJ politicos and EOIR bureaucrats seem to excel in. How many of YOU have been victims of ADR?

Fifth, the Administration, DOJ, and EOIR use so-called “civil immigration detention” mostly in absurdly, yet intentionally, out-of-the-way locations, to limit representation, coerce migrants into abandoning claims or appeals, and supposedly deter future migration, even through there is scant evidence that abusive detention actually acts as a deterrent. This is done with little or no effective judicial recourse in too many cases. Indeed a recent TRAC study shows neither rhyme nor reason in custody or bond decisions in Immigration Court, even in those cases where the Immigration Judges at least nominally had jurisdiction to set bond.

Now, I’ve told you how due process and fairness are being mocked by DOJ and EOIR in a dysfunctional Immigration Court system where judges have effectively been told to act as “DOJ attorneys” carrying out the policies of their “partners” in DHS enforcement, supposedly a separate party to Immigration Court proceedings but now “driving the train.”

Here are the four essential reforms. First, and foremost, a return to the original “Due Process Focus” of the Immigration Courts: through teamwork and innovation be the world’s best courts guaranteeing fairness and Due Process for all. DOJ politicos and EOIR bureaucrats must be removed from their improper influence over this system that has turned it into a tool of DHS enforcement. Everything done by the courts must go through a “Due Process filter.”

Second, replace the antiquated, inappropriate, bloated, and ineffective “Agency-Style Structure” with a “Court-Style Structure” with sitting judges rather than DOJ politicos and EOIR bureaucrats in charge. Court administration should be decentralized through local Chief Judges, as in other systems, appointed competitively through a broad-based merit system and required to handle a case load. Sitting judges, not bureaucrats, must ultimately be in charge of administrative decisions which must be made in a fair and efficient manner that considers the legitimate needs of DHS enforcement, along with the needs of the other parties coming before the court, and results in a balanced system, rather than one that inevitably favors DHS enforcement over Due Process, quality, and fairness.

Third, create a professional administrative office modeled along the lines of the Administrative Office for U.S. Courts to provide modern, effective judicial support and planning. The highest priorities should be implementing a nationwide e-filing system following nearly two decades of wasted and inept efforts by EOIR to develop one, efforts that have once again been put “on hold” due to mismanagement. A transparent, merit-based hiring system for Immigration Judges, with fair and equal treatment of “non-government” applicants and a system for obtaining public input in the process is also a must. Additionally, the courts must be redesigned with the size of the dockets and public service in mind, rather than mindlessly jamming a 21st century workload into “mini-courts” designed for a long bygone era.

Fourth, a real Appellate Division that performs as an independent court, must replace the “Falls Church Service Center” a/k/a the BIA. The crippling Ashcroft purge-related bogus “reforms” that turned the BIA into a subservient assembly line must be eradicated. The BIA is a so-called “deliberative body” that is far removed from the public it serves and no longer deliberates in a publicly visible manner. The Appellate Division, not politicos and bureaucrats, must be responsible for promulgating precedents in controversial areas, insuring that the generous standards set forth in Cardoza-Fonseca and Mogharrabi are made realities, not just lip service, and reining in wayward judges, the worst of whom have turned some areas into veritable “asylum and due process free zones” resulting in loss of public confidence as well as denial of Due Process and unfair removals.

Some will say that these reforms only deal with two of the five glaring problems — prosecutorial control and political interference. But, an independent, judge-run, Due Process focused U.S. Immigration Court where judges control their own dockets free from political interference and bureaucratic incompetence will be able to work with both private entities and the DHS to solve the problems leading to lack of representation, “Aimless Docket Reshuffling” and backlog building, and abusive use of immigration detention.

No, all problems that have been allowed to fester and grow over decades of calculated indifference and active mismanagement won’t be solved “overnight.” Additional legislative fixes might eventually be necessary. But, fixing Due Process is a prerequisite that will enable other problems and issues to be constructively and cooperatively addressed, rather than just being swept under the carpet in typical bureaucratic fashion.

So, now the “One Solution:” Congress must create an independent Article I U.S. Immigration Court. That’s exactly what the ABA Commission on Immigration recommended in a comprehensive study and report released yesterday.

Thus, the ABA joins the FBA, AILA, and the NAIJ, all organizations to which I belong, in recommending an Article I legislative solution. Significantly, after watching this Administration’s all out assault on Due Process, common sense, truth, the rule of law, human decency, and best practices, the ABA deleted a prior “alternative recommendation” for an independent agency within the Executive Branch. In other words, we now know, beyond any reasonable doubt, that the Executive Branch is both unwilling and unable to run an independent court system in accordance with Due Process.

I highly recommend that you read the comprehensive ABA report in two volumes: Volume I is an “Executive Summary;” Volume II contains the “Detailed Findings.” You can find it on the ABA website or on immigrationcourtside.com my blog, which, of course, I also highly recommend.

In closing, we need change and we need it now! Every day in our so-called “Immigration Courts” Due Process is being mocked, fundamental fairness violated, and unjust results are being produced by a disastrously flawed system run by those with no interest in fixing it. Indeed, one of the stunning recommendations of the ABA is that no further judges be added to this totally dysfunctional and out of control system until it is fixed.

As the great Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.” Tell your elected representatives that you’ve had enough injustice and are sick and tired of being treated as actors in a repertory company specializing in “theater of the absurd” masquerading as a “court system.” Demand Article I now!

Thanks for listening! Join the New Due Process Army, do great things, and Due Process Forever!

(03-21-19)

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

The horror stories from those actually attempting to practice in the NY Immigration “Courts,” the examples of “Aimless Docket Reshuffling” (“ADR”) from my friend, “Our Gang” colleague, and fellow panelist Retired U.S. Immigration Judge Patty McManus, and pressing need for an independent Article I Court to replace this dishonest and dysfunctional mess described by fellow panelist NY Attorney Jake LaRaus, of Youman, Mateo, & Fasano were most compelling.

Recurring complaints from the audience were the unequal treatment of private attorneys and DHS Counsel, the glaringly inappropriate deference shown by some Immigration Judges to DHS, and the unwillingness of some judges to enforce rules against the DHS. In other words, many of the things that EOIR originally supposed to “cure” are now “back in spades.” Everyone echoed the theme that this is a system in regression, where things that “worked” at one time have now been intentionally disabled by DHS and EOIR.

Independence and competent, professional, apolitical judicial management by judges would go a long way toward reducing today’s
Government-created backlogs. The problem is definitely not, as some would claim, the number of asylum seekers. Indeed legitimate asylum seekers all over this system who have been waiting years for their cases to be heard and who have time and time again been the victims of “ADR” and politicized meddling with the legal standards are among the many victims of this broken system.

We should all be ashamed of this disgraceful perversion of our Constitution and grotesque waste of Government money going on every day. The solution isn’t “rocket science;” it’s Article I. An achievable idea “whose time has come.”

PWS

03-22-19

ABA COMMISSION ON IMMIGRATION CONFIRMS WHAT I’VE BEEN BEEN SAYING ALL ALONG: IMMIGRATION COURTS ARE “FUBAR” & INTENTIONALLY BEING MADE WORSE BY TRUMP ADMINISTRATION’S “MALICIOUS INCOMPETENCE”

ABA COMMISSION ON IMMIGRATION CONFIRMS WHAT I’VE BEEN BEEN SAYING ALL ALONG: IMMIGRATION COURTS ARE “FUBAR” & INTENTIONALLY BEING MADE WORSE BY TRUMP ADMINISTRATION’S “MALICIOUS INCOMPETENCE”

Washington, DC. At a public meeting today at the National Press Club, the ABA Commission on Immigration rolled out its 2019 update to its 2010 report on “Reforming the Immigration System.” ABA President Bob Carlson led off by strongly reinforcing the organization’s commitment to Due Process and equal justice for all. Legislation, restructuring, and reform are the three themes.

In short, most of the helpful suggestions in the 2010 report were ignored. Some of the few that were implemented by the Obama Administration, the most helpful of which was more widespread use of prosecutorial discretion to rationalize court dockets, were intentionally reversed by the Trump Administration. The Trump Administration is mindlessly leading a “race to the bottom” where fairness, impartiality, scholarship, efficiency, and due process have incredibly and inexcusably regressed while backlogs have grown exponentially as a result.

One of the key findings was that under the Trump Administration, “policies have been put in place that seek to limit access to asylum, counsel, and the courts themselves. There is little regard for the human cost of detention and deportation.”

The solution set forth by the ABA is very straightforward: Congress must create an independent Article I U.S. Immigration Court outside the Executive Branch. Until that happens, justice and due process will continue to be compromised in Immigration Court, and our entire legal system will be endangered.

One of the most astute observations by the panelists was that putting more new judges into the current dysfunctional court system would be counterproductive. Every American should be ashamed of the Trump Administration’s “maliciously incompetent” maladministration and intentional abuse of our Immigration Court system. When asked about what they could do to address this national disgrace, panelists told the audience to “contact your legislators and demand action on Article I and other essential reforms contained in the report.”

At the end of the presentation, the ABA presented an award to Arnold & Porter partner Larry Schneider for the firm’s help in researching and preparing the report.

FULL DISCLOSURE: I previously was a witness before the ABA Commission.

Here’s a link to the complete two-part report and relating materials: https://www.americanbar.org/groups/public_services/immigration/

PWS

03-20-19

TRAC STATS EXPOSE ANOTHER TRUMP ADMINISTRATION LIE: “Newly Arrived Families Claiming Asylum” ARE NOT Causing The Immigration Court Backlog – That Backlog Was A Well-Established Product Of Gross Mismanagement & “Aimless Docket Reshuffling” Over The Last Three Administrations But Aggravated By This Administration’s “Malicious Incompetence” – Recently Arrived Families Are Only 4% Of The Pending Cases!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASEThe Immigration Court backlog continues to rise. As of February 28, 2019, the number of pending cases on the court’s active docket topped eight hundred and fifty-five thousand (855,807) cases. This is an increase of over three hundred thousand (313,396) pending cases over the backlog at the end of January 2017 when President Trump took office. This figure does not include the over three hundred thousand previously completed cases that EOIR placed back on the “pending” rolls that have not yet been put onto the active docket.

Recent family arrivals now represent just 4 percent of the current court’s backlog. Since September 2018 when tracking of family units began, about one out of every four newly initiated filings recorded by the Immigration Court have been designated by DHS as “family unit” cases. The actual number of families involved were less than half this since each parent and each child are counted as separate “court cases” even though many are likely to be heard together and resolved as one consolidated family unit.

There has been no systematic accounting of how many cases involving families arriving at the border will involve Immigration Court proceedings in their resolution. Families arriving at the border do not automatically have the right to file for asylum in Immigration Court. Thus far, the number of families apprehended by the Border Patrol or detained at ports of entry dwarf the actual number of these cases that have made their way to Immigration Court.

For further details, see the full report at:

https://trac.syr.edu/immigration/reports/551

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through February 2019. For an index to the full list of TRAC’s immigration tools go to:

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

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

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

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

http://facebook.com/tracreports

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

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

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse

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

Remember, folks, the next time you hear the Administration’s “professional liars” like Kirstjen Nielsen engage in bogus “hand wringing” and call for crackdowns on asylum applicants, their lawyers, and drastic changes to asylum law — she is covering up and shifting the blame for grossly incompetent management of the asylum program and the Immigration Courts by this Administration. “Victim blaming and shaming” — a staple of the Trump Kakistocracy — is about as low as it goes.

While laws can always be improved — for example an Article I U.S. Immigration Court, adding gender-based asylum to the “refugee” definition, supporting legal representation for arriving asylum seekers, and increasing the number and initial jurisdiction to grant asylum of the Asylum Officers should be “bipartisan no brainers” — the real problem here is not the law!

No, it’s the unwillingness of this Administration to follow laws protecting refugees, allow for robust “out of country processing” of refugees from Central America, and eliminate anti-asylum, anti-Latino, and anti-female bias from our asylum adjudication system that has created a “self-constructed crisis.”

Insist that this Administration take responsibility for their “designed to fail,” White Nationalist, restrictionist policies, improve performance, and administer refugee and asylum laws fairly, impartially, and in accordance with Due Process under our Constitution.

Under no circumstances should the already far too limited rights of asylum seekers and migrants to receive fair, honest, and humane treatment in accordance with constitutional Due Process be reduced as this Administration is always disingenuously seeking. And the money being illegally diverted and wasted on a semi-nonsensical “Wall” could and should much better be spent on improving our current asylum system and making it work — without any more illegal “gimmicks” such as attempting to rewrite the statutes by regulation, the bogus and ill-conceived “Migrant Protection Protocols,” and “slow walking” the applications of those who line up patiently to apply for asylum at legal ports of entry.

PWS

11-20-19

THE HILL: Nolan Says That Border Security Is Now In Speaker Pelosi’s Hands

Pelosi has won — and she’s now the only one able to secure the border

By Nolan Rappaport

© Greg Nash

House Speaker Nancy Pelosi (D-Calif.) claims that “Democrats are committed to border security,” but the Democrats have opposed President Donald Trump’s efforts to do that.

Pelosi supported the joint resolution to terminate Trump’s declaration of a National Emergency at the Southern border. The resolution was passed in both chambers and sent to Trump on March 14. He vetoed it the next day.

Congress appears unlikely to override the veto, so the fate of the declaration probably will be decided by the same Ninth Circuit Courts that flouted precedent to block Trump’s travel ban, which almost certainly will result in another lower court defeat for Trump. The Supreme Court, however, may reverse the lower courts, as it did in the travel ban case. But that could take quite some time.

The Catch-22 at the heart of the matter

During the Bill Clinton administration the government entered into a settlement agreement that makes it difficult to remove aliens who bring their children with them when they make an illegal border crossing.

This became apparent last May, when Trump announced a zero-tolerance border security enforcement policy. Illegal entries are a crime: The first offense is a misdemeanor and subsequent offenses are felonies. Trump tried to use a no exceptions threat of a criminal prosecution as a deterrent. “If you cross the border unlawfully, then we will prosecute you,” he said — no exceptions for aliens who bring their children with them.

The problem was prosecution of an alien who has his child with him requires the government either to detain the child with him while he is being prosecuted or separate him from his child.

Read more at https://thehill.com/opinion/immigration/434524-pelosi-has-won-and-shes-now-the-only-one-able-to-secure-the-border

Published originally on The Hill.

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Go on over to The Hill at the above link to read Nolan’s complete article.

Seems like the Government’s best bet would be to work cooperatively with NGOs and pro bono groups to link families who pass credible fear or who have court challenges pending to pro bono attorneys and to charitable organizations who can aid in temporary resettlement. In those situations, represented families almost always show up for their court hearings and keep the courts, DHS, and the lawyers properly informed of their whereabouts.

If the Government deems it a “priority” to move these cases to the “front of the court line” then they can remove some of the cases that are more than three years old and do not involve individuals with crimes from the already overcrowded Immigration Court dockets. The hundreds of thousands of pending and moribund “Non-Lawful Permanent Resident Cancellation of Removal Cases” would be fairly easily identifiable and logical candidates.

That will allow the Immigration Courts to concentrate on fair and timely adjudications of the more recent asylum claims without contributing to the overwhelming backlog. Some fair precedents by the Article III Courts (under this DOJ, the is no chance of fair asylum precedents being issued administratively) as to what claims do and do not properly qualify for asylum and relief under the CAT would eventually help provide meaningful guidance to Asylum Officers, Immigration Judges, BIA Appellate Judges, and the private bar, and well as DHS Attorneys. This in turn, would help minimize the court time spent on cases that either were “slam dunk grants” or had “no chance” even under the most favorable view of the facts for the applicant. Both the DHS and the private bar would thus be motivated to spend time on the cases that really needed to be litigated in Immigration Court.

Additionally, greater predictability in the U.S. asylum system might also assist human rights groups working with individuals in the Northern Triangle and in Mexico to make better, more informed, and more realistic decisions as to whether to pursue humanitarian resettlement opportunities in Mexico and other countries in the hemisphere that might offer such.

If Congress were going to act, the most helpful changes would be 1) establishing an independent Article I immigration Court to replace the dysfunctional mess that has been created over the past several Administrations but severely and unnecessarily aggravated by this Administration; 2) amend the Act’s definition of “asylum” to make it clear that “gender” is a subset of “particular social group” persecution; 3) authorizing some type of “universal representation program” for asylum applicants in Immigration Court; and 4) requiring the Administration to reinstitute a meaningful “outside the U.S.” refugee processing program for Latin America in conjunction with the UNHCR;

No, it wouldn’t solve all problems overnight. Nothing will. But, it would certainly put an end to some of the Administration’s wasteful and bad faith “gimmicks” and unnecessary litigation that now clog our justice system. That’s at least the beginning of a better future and a better use of resources.

PWS

03-18-19

What The DAG SHOULD Have Said To New U.S. Immigration Judges (But, Of Course Didn’t) . . .

WELCOME: DUE PROCESS IS YOUR ONLY MISSION

Congratulations on your appointment as U.S. Immigration Judges. It’s a difficult and important judicial position under the best of circumstances. Given the many controversies surrounding immigration today your job is even more challenging.

You face an overwhelming backlog resulting from factors largely beyond your control. Rather than being consumed or demoralized by that backlog, your job is to guarantee fairness and due process in each individual case coming before you. This requires you to act independently and resist pressures, from any quarter, to “cut corners” or otherwise compromise your constitutional duty to act impartially, fairly, and professionally toward each individual appearing before you.

While you occupy an unusual position as quasi-judicial officers who are also employed by Department of Justice, the Department regulations charge you with exercising your “independent judgment and discretion and . . . [taking] any action consistent with [your] authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.”

Indeed, the United States Supreme Court in the landmark case U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) stated with respect to your similarly situated judicial colleagues on the Board of Immigration Appeals that each administrative judge serving under these regulations “must exercise his authority according to his own understanding and conscience. This applies with equal force to the Board and the Attorney General. In short, as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.”

Consequently, although as a cabinet officer the Attorney General might sometimes take certain positions or advocate certain policies, you must consider only the facts, the statutes, the regulations, and any precedent decisions directly relevant to your particular case in reaching your decisions. And, you must always treat the Department of Homeland Security as a separate party, with the same respect and consideration that you will give to individuals coming before you and their attorneys. That you are all employees of the same Government should not entitle DHS to special or preferable treatment or deference not afforded to other parties coming before your courts.

The motto of the Department of Justice, basically refers to one “who prosecutes in the name of justice.” Thus, our Department stands alone in incorporating a moral principle — the requirement of doing justice — into its mission. As that great American Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.”

Some of the most vulnerable individuals entitled to due process under our Constitution will come before you in your courts. Your awesome and solemn responsibility is to insure that they receive due process and fairness — in other words justice — no matter how difficult their individual circumstances might be or any handicaps under which you might be operating.

Many of those arriving in the United States today are applying for asylum under our laws. Those fleeing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion are eligible for protection. In INS v.Cardoza-Fonseca, 480 U.S 421 (1987) our Supreme Court instructed us to apply the asylum standard in a generous manner. Others who face torture at the hands of, or with the “willful blindness” of, their governments, are entitled to protection without having to establish that the torture results from one of the foregoing “protected grounds.” An important part of your job will be insure that those who qualify for protection under our laws are given a full and fair chance to prepare their cases, to be represented by counsel of their choice, receive fair and reasoned decisions, and are not unfairly returned to harm in the countries they fled.

For my part, I pledge that during the time I remain with the Department of Justice I will do everything in my power to protect your quasi-judicial independence from improper influence, to allow you to manage your own dockets and develop “best practices” without bureaucratic interference, and to secure for you the resources you need to do your critically important jobs. I trust that my successor will do likewise.

The vision of our Immigration Courts is “through teamwork and innovation become the world’s best administrative tribunals guaranteeing fairness and due process for all.” Your challenge is to do everything within your power to make that vision a reality each day you are on the bench.

Congratulations again on your selection and on choosing to serve our country in these important judicial positions at this critical juncture in our history. I thank you in advance for your future service and commitment to insuring equal justice for all. Good luck, do great things, and make due process for all your daily goal.

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Someday, we will once again have an Attorney General and a DAG who truly respect Constitutional Due Process, don’t fear independent judicial decision-making, and have the courage and backbone to “just say no” to White Nationalist restricitionist agendas that conflict with our Constitution, our statutes, our international obligations, common human decency, and what were once almost universally considered “true American values.”

Until then, it will be up to the “New Due Process Army” and their allies to keep Due Process and fairness for all of us alive during what will go down as one of the darkest and most evil periods in modern American history.

PWS

08-18-19

DAG ROSENSTEIN INADVERTENTLY MAKES COMPELLING ARGUMENT FOR INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT IN SPEECH TO NEW JUDGES — Places Emphasis On Executive, Fealty To Attorney General, Not Independence. Impartiality, & Insuring Due Process! — REAL “Courts” Don’t Answer to Prosecutors!

https://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbXNpZD0mYXVpZD0mbWFpbGluZ2lkPTIwMTkwMzE1LjMyNjAxNDEmbWVzc2FnZWlkPU1EQi1QUkQtQlVMLTIwMTkwMzE1LjMyNjAxNDEmZGF0YWJhc2VpZD0xMDAxJnNlcmlhbD0xODQ4OTEzNiZlbWFpbGlkPWRrb3dhbHNraUBkYXZpZC13YXJlLmNvbSZ1c2VyaWQ9ZGtvd2Fsc2tpQGRhdmlkLXdhcmUuY29tJnRhcmdldGlkPSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&&&101&&&https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly

Deputy Attorney General Rod J. Rosenstein Delivers Opening Remarks at Investiture of 31 Newly Appointed Immigration Judges

Washington, DC

~

Friday, March 15, 2019

Thank you, James, for that kind introduction. I appreciate your devoted service to the Department of Justice.

I also want to thank Deputy Chief Judges Santoro and Cheng, and Assistant Chief Judges Doolittle, Owen, Mart, and Weiss.

I am grateful to Marcia Lee-Sullivan and Karen Manna for helping to plan this event.

Above all, I want to congratulate our 31 new immigration judges for joining the Executive Office for Immigration Review, and welcome the family members and friends who are with us today.

I took my first oath as a Department of Justice employee in 1990. I hope it is as meaningful to you as it is to me. They have sworn me in several more times over the past three decades. But they never swear you out.

The oath obligates you to support and defend the Constitution. Our nation was not united by race, ethnicity, religion, or even national origin. The founders’ goal of bringing peoples of the world together in a single nation is reflected in the motto adopted at the founding of our Republic: e pluribus unum: from the many, one. Our one nation is unified by our shared commitment to the principles of the United States Constitution. The preamble sets forth, among its primary goals, to “establish Justice.” Justice – or the fair application of the rule of law – is the essence of America.

The right to live and work in America is a tremendous privilege. It is a valuable privilege. It is a privilege that has meaning only if we exercise our right and duty to protect it by setting rules for people who seek to acquire the privilege.

It is right and proper for us to insist that people who desire to join our nation – people who want themselves and their children to join the privileged group who define ourselves as “we, the people” – start by following the rules governing admission and citizenship.

The duties imposed by your oath of office include faithfully enforcing those rules.

America’s immigration laws are generous and welcoming, but they are intended to protect the rights and advance the interests of current and future citizens.

More than a century ago, Theodore Roosevelt remarked that “[t]he average citizen must be a good citizen if our republics are to succeed. The stream will not permanently rise higher than the main source; and the main source of national power and national greatness is found in the average citizenship of the nation.” Roosevelt did not limit his remarks to birthright citizens. He said, “We must in every way possible encourage the immigrant to rise …. We must in turn insist upon his showing the same standard of fealty to this country and to join with us in raising the level of our common American citizenship.”

Obeying the law when seeking entry to the United States is an essential component of “fealty to this country.”

Estimates suggest that there are more than 44 million people in our country who were not American citizens at birth. That is almost 14 percent of our population, the largest share in more than a century. America’s foreign-born population exceeds the total population of California, our most populous state, and it is larger than the entire population of Argentina.

Those numbers continue to grow. Every year, we generously extend lawful permanent resident status to more than one million people, and we allot hundreds of thousands of student visas and temporary work visas.

It is no surprise that so many people want to join us. According to the World Bank, nearly half of the world lives on less than $5.50 per day. According to a recent Gallup poll, 150 million people around the world want to immigrate to the United States. We cannot take them all.

For our system to be fair, it must be carried out faithfully and equitably. It must be fair to all who desire to come here — whether they live south of our border or an ocean away.

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.

You take office at a critical time. The number of immigration cases filed each year is rapidly increasing. In February, the Department of Homeland Security apprehended 66,000 aliens who unlawfully entered our country between ports of entry along the southwest border. On average, our colleagues at the Department of Homeland Security encounter about 3,000 aliens every day along the southern border.

Most of them cross the border unlawfully, between points of entry. They chose not to follow the law. Because they do not follow the law, many of them expose themselves and their children to exploitation and abuse. Many pay criminal smugglers because they know that they might not be allowed to enter lawfully. Nonetheless, our legal system protects them.

The massive influx of aliens who arrive in America illegally and invoke due process rights under our law creates a staggering volume of immigration cases that require resolution.

The primary factor driving the increasing backlog is the significant increase in asylum applications. Asylum applications have more than tripled in less than five years.

Our asylum system was established in the aftermath of World War II. America seemed to have limitless space at that time, and the goal was to protect minority groups from persecution by foreign states, the kind of persecution that the world witnessed during World War II and which was prevalent at that time in the purges conducted by our erstwhile ally, the Soviet Union.

The law authorizes asylum only for victims who suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or because of their political opinion.

Other reasons for seeking to immigrate may be rational and even laudable. We certainly understand why foreigners wish to come to America in search of better opportunities for themselves and their children. America is a great nation that does not need walls to keep its citizens from leaving, like the Soviet Union. We build walls only to protect ourselves and enforce our rules.

The duty of our immigration judges is to honestly find the facts and faithfully apply the laws, so that people obtain asylum only if they qualify for it under the statute.

We are taking steps to address the massive influx of cases. We are hiring more judges; we are holding more hearings; and we are completing more cases, more quickly.

Since President Trump’s inauguration, the Department of Justice has hired more immigration judges than in the previous seven years combined. We now employ the largest number of immigration judges in history. There are 48 percent more immigration judges than three years ago, and 71 percent more than five years ago.

And we are finding innovative ways to become more efficient. For example, the Department has had great success using video teleconference technology, which enables judges to share the case burden with one another across the country.

We will look for other ways to become more efficient and more effective. But ultimately we are depending upon you, both to perform your duties expeditiously, and to let us know when you identify opportunities for improvement.

One of my favorite management parables is about a child who watches her mother prepare a roast beef. The mother cuts the ends off the roast before she puts it in the oven. The child asks why. The mother says that she learned it from her mother. So the child asks her grandmother. The grandmother explains, “When your mother was a child, I cut the ends off because my pan was too small to fit the whole roast beef.”

The moral is that the solutions of the past are not necessarily the right solutions today. Circumstances change. Sometimes we need to reconsider assumptions and realign our practices to achieve our goals. The movie “Moneyball,” based on a book by Michael Lewis, summarizes the lesson in three words borrowed from Charles Darwin: “Adapt or die.” Some of the best ideas to enhance efficiency come from relatively new employees who are not accustomed to existing bureaucratic rules. If you think you know a better way to accomplish our mission, please speak up and let us know.

Our challenges are daunting. But you can be part of the solution.

Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties.

We chose you because of your qualifications, your legal skills, and your personal integrity. We believe that you are ready for this challenge.

Thank you for your willingness to serve, and welcome to the Department of Justice.

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

There were a few good things about Rosenstein’s presentation:

As I had predicted would happen under Barr, he improved the tone by ditching the overt appeals to White Nationalism, racist dog whistles, and misogyny present in most of Sessions’s rhetoric:
He also dropped the vicious, disingenuous attacks on the private bar that were a staple of Sessions’s anti-immigrant screeds;
He at least acknowledges that immigrants are a large permanent part of our society, although downplaying the truth that, contrary to Stephen Miller and other Trump restrictionists, we are, in fact, a “nation of immigrants;”
He acknowledges the obligation to be “fair to all who desire to come here — whether they live south of our border or an ocean away;”
He at least grudgingly recognizes that all who come here are entitled to certain protections under our legal system regardless of the circumstances of entry (something that the DOJ and the Administration actually have failed to respect in practice);
He also recognizes another truth that his Department often chooses to ignore — “Justice is not measured by statistics.” — Indeed, it is not — so why have mindless “quotas” that nobody working in or familiar with the system would have recommended? Why cite largely meaningless statistics about the number of individuals who would like to come here but never will?

But, there was also lots NOT to like:

Rosenstein mangles the oath of office; federal employees like Immigration Judges swear to uphold the Constitution against all enemies foreign and domestic — they DON’T swear to uphold or carry out the policies of the Attorney General (many of which have actually been found in violation of the law);
He creates a bogus “test” of “legal entry” as a demonstration of “fealty to our country;” there is no such equivalency or “second class citizenship.” — Although our system understandably often favors those who enter legally, there are a number of provisions that allow individuals who did not do so to eventually be granted citizenship, including those who are granted asylum; I am aware of no information that shows that manner of entry into the U.S. has any effect on one’s “fealty” or performance as a citizen; indeed, as a “native born U.S. citizen,” Rosenstein, like many of us, did nothing whatsoever personally to show his “fealty” or “earn” his citizenship — he was just lucky like we were;
Rosenstein keeps referring to “enforcement;” but Immigration Judges are NOT “law enforcement officers;” they are supposed to be fair and impartial quasi-judicial adjudicators; “enforcement” is the job of DHS and other parts of the DOJ (a glaring conflict of interest);
DHS officials are not the Immigration Judges’ “colleagues” to any greater extent than are lawyers in private practice or the individuals coming before the Immigration Courts; DHS is a “party” before the court and should be treated as such;
Rosenstein mis-states the history of our refugee laws. While the 1951 Convention was a response to World War II, the U.S. never became a party. We did sign the 1967 Protocol which was intended to update and expand the Convention and refugee law and move it beyond the immediate post-WWII aftermath. Our first codification of refugee and asylum law, the Refugee Act of 1980, was specifically intended to eliminate the types of ideological and geographical biases that had previously been a facet of our law; Rosenstein wrongfully implies that judges should interpret refugee law with a focus on a bygone era rather than considering refugee law, in the dynamic, protection-oriented manner it was intended, in the contexts of today’s world, where persecution based on gender is one of the major refugee producing factors;
Rosenstein cites televideo as a helpful “innovation;” televideo is hardly new; but the often inept way in which it has been implemented and used by EOIR means that it often has actually fueled, rather than solved, “Aimless Docket Reshuffling” as shown in this very recent report from Beth Fertig at WNYC: https://immigrationcourtside.com/2019/03/15/beth-fertig-the-gothamist-mismanaged-immigration-courts-failed-technology-results-in-cancelled-hearings-more-aimless-docket-reshuffling-that-needlessly-impedes-due-process-ad/ Most of us who have actually worked in the system would say that while better televideo and a corps of “senior” and “reserve” judges might prove useful in many circumstances, they are least suitable and helpful for contested merits asylum cases;
Rosenstein neglects to mention the glaring failure of DOJ/EOIR to deliver on an even more important piece of technology for both the judges and the parties: e-filing which has been under development for nearly two decades without producing a functional product — a stunning piece of administrative incompetence by any standard and one that has helped contribute to the “Aimless Docket Reshuffling” that plagues this dysfunctional system;
Rosenstein use of the term “generous” to describe legal immigration policy under Trump is outrageous; in a time of a growing worldwide refugee crisis, this Administration has cruelly and irrationally reduced refugee admissions to the lowest rate since the enactment of the Refugee Act of 1980, while discouraging and placing bureaucratic roadblocks to discourage other forms of legal immigration, and intentionally misconstruing and perverting the law to make it more difficult for abused women from Central America to qualify;
Rosenstein fails to acknowledge that “forced migrants” are just that; they often enter illegally because they have little other choice, particularly when the Administration intentionally “slow walks” the applications of those who apply at legal ports of entry, forces those who have shown “credible fear” to remain in dangerous conditions in Mexico, and encourages smugglers to “turn in” individuals between ports of entry to avoid the Trump Administration’s short-sighted and arguably illegal policies;
Walls are not a symbol of strength as posited by Rosenstein; they are symbols of fear and loathing; in the USSR’s case it was directed at their own citizens; for the Trump Administration, walls are symbols of fear of Mexico, Mexicans, other Latin Americans, immigrants generally, and inferentially the real target — Hispanic citizens and all people of color in the U.S.;
Rosenstein’s final piece of jaw-dropping hypocrisy is to solicit solutions from the “new judges” to problems thrust on them by his Department’s malicious incompetence. Gimme a break, Rod! This Administration, like the last several, has made a point of ignoring any solutions generated from those who actually hear the cases in favor of those imposed to meet political goals that often undermine due process and judicial efficiency. Just ask the NAIJ how “receptive” the Trump DOJ has been to constructive suggestions. Ask almost any Immigration Judge about the idiotic and demeaning “case quotas” imposed on them over their objections. Moreover, this Administration has been “outed” in FOIA requests and court cases for ignoring well-supported fact-biased recommendations of career civil servants with expertise in various fields in favor of a preconceived racist, White Nationalist, restrictionist political agenda. Save your breath and ideas folks, for a future time after we get some much-needed “regime change” and the return of rational, unbiased, solution-oriented administration of justice instead of ideologues and their apologists like Rosenstein.

Rosenstein is on his way out the door at the DOJ. He’ll leave behind a mixed legacy. He’ll deserve great credit for protecting the Mueller investigation from Trump’s various attempts to interfere and compromise it. On the other hand, he drafted the infamous “pretext memo” which was part of the ultimately unsuccessful attempt to cover up Trump’s real real reason for firing FBI Director Jim Comey.

His failure to stand up for judicial independence, fairness, and due process for vulnerable individuals coming before our U.S. Immigration Courts and his continuing defense of the Administration’s indefensible and harmful White Nationalist immigration agenda will go down as one of his lesser moments.

America needs an independent Article I U.S. Immigration Court where judges act fairly and impartially and owe allegiance to the U.S. Constitution, not the Attorney General or any other political official.

PWS

03-18-19

BETH FERTIG @ THE GOTHAMIST: Mismanaged Immigration Courts’ Failed Technology Results In Cancelled Hearings, More “Aimless Docket Reshuffling” That Needlessly Impedes Due Process & Adds To Already Out Of Control Backlog!

http://gothamist.com/2019/03/12/immigration_court_video_failure.php

Beth writes:

Hundreds of immigration court hearings have been canceled because of video malfunctions in New York City, according to data obtained by WNYC.Detained immigrants often see judges by video when they’re held in remote locations, but last year a court on Varick Street in Manhattan switched to hearing cases through video technology. The immigrants who use that court are held in regional detention centers and were previously transported to Varick Street for in-person hearings.The change prompted a lawsuit by immigration attorneys, who claim the video equipment frequently breaks down and deprives their clients of due process.

New data obtained through a Freedom of Information Act request appears to support their claim. A total of 316 hearings in New York were postponed in Fiscal Year 2018 due to video malfunctions, according to the Executive Office for Immigration Review (EOIR), which runs the immigration courts.

That’s a big jump from a total of 12 postponements due to video malfunctions in the previous two fiscal years combined. Andrea Saenz, supervising attorney at Brooklyn Defender Services, said those numbers seem accurate.

“It just goes to show that the video hearings are not giving our clients due process,” she said. Her group is one of of three public interest law firms suing the government over the use of video in New York.

“People are not getting fair hearings if they cannot rely on the technology to actually connect them to the judge who’s able to correctly hear them and assess their testimony,” she added.

But a spokesman for EOIR said things are actually improving. John Martin said the agency “routinely monitors the effectiveness” of video teleconferencing. “The FOIA statistics suggest that video malfunctions at the New York City immigration courts are decreasing in FY 2019 compared to FY 2018,” he added.

The data show 49 hearings were canceled due to technical problems from October 1st through the end of December, the first quarter of FY 2019.

But Saenz said this number could be falling because detainees from the Bergen County detention center, in New Jersey, have been brought to court in person since December because the technical problems are so serious at that facility.

Immigration courts around the nation have been increasingly relying on video technology, promoting it as an efficiency measure. Last year, the government told WNYC that only around 800 of nearly 126,000 video hearings were postponed for technical problems. But our freedom of information request revealed there were actually more cancellations, totaling 1,090 nationwide.

But EOIR’s Martin explained the discrepancy by noting the original number provided for FY 2018 did not include every type of hearing.

Regardless, the new data show a huge spike in canceled hearings because there were only 403 adjournments due to video problems two years earlier.

Hearings conducted by video are often used for immigrants at detention centers in remote locations. Immigration and Customs Enforcement started using them in New York City last June. The agency originally blamed the decision on safety concerns, citing a large protest by immigration advocates outside the court building on Varick Street. It then said hearings by video are more cost efficient.

Public defenders are also complaining that hearings at Varick Street are now being expedited. They said they were told on Friday that trials scheduled for later this spring will be held as soon as next week because the court is adding more judges. EOIR did not respond to a request for comment.

Saenz said attorneys were caught off guard, and many aren’t prepared to make complicated arguments so quickly, such as asylum cases that require lots of documentation including medical exams and evidence from an immigrant’s home country.

“This is not efficient and this is not a fair way to run a court system,” she said.

Beth Fertig is a senior reporter covering courts and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.

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

EOIR has failed after nearly two decades of wasted time, money, and effort, to implement any type of e-filing in a system now plagued with literally millions of “paper files in the aisles” and everywhere else. But, they were able to roll out the totally bogus “Immigration Judge Dashboard” to needlessly up the pressure on already overstressed Immigration Judges by giving them constant reminders on the bench of the utterly sophomoric and totally counterproductive “production quotas” instigated by biased and incompetent non-judicial politicos at the DOJ with the acquiescence of EOIR “managers” who would make jellyfish look like vertebrates by comparison.

When will Congress and/or the Article IIIs finally take the long overdue action to remove the “Keystone Cops” from inflicting even further damage on this parody of court system that they have so thoroughly destroyed with their highly politicized and unethical initiatives and their absolutely mind-boggling management incompetence?

It would be a joke; except that this particular “joke” is endangering and ruining human lives, inflicting needless misery, and squandering scarce resources on a daily basis. As Casey Stengel would say, “Can’t anyone here play this game?” Right now, the answer appears to be “No.” And, that includes Congress and the Article IIIs. Eventually, those in the preceding two groups who allow this situation to continue will become complicit and will go down in history as enablers of a system that preyed on the most vulnerable and needy of legal protections among us.

PWS

03-15-09

“DOJ MISMANAGEMENT CENTRAL:” In Failing U.S. Immigration Courts, Political Interference & Idiotic Quotas Push 1.1 Million Plus Case Backlog Higher!

https://apple.news/ASsFWST9rQTSnqDmrVtuZ2Q

Immigration judges say quotas will increase backlog of cases

LOS ANGELES — Immigration judges say a new quota system threatens to increase an already overwhelming backlog of cases in U.S. immigration courts.

The system pushes for judges to close 700 cases a year and calls for them to be evaluated on that quota.

Immigration Judge Ashley Tabaddor said in a March 12 letter to lawmakers that the change would create a perception of government interference in the handling of cases that will lead more immigrants to file appeals.

Tabaddor, who heads the National Association of Immigration Judges, says the move could also flood federal courts with cases.

It can take years to get a decision in the immigration courts, which have more than 800,000 pending cases.

The letter followed testimony last week before a House subcommittee by James McHenry, who oversees the nation’s immigration courts.

A message sent to immigration court officials was not immediately returned.

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

Apparently, it’s going to take a complete collapse of not only the U.S. Immigration Courts but the entire Federal Judicial System (certainly on the horizon as the Immigration Courts’ systematic failure to provide expertise, impartial decision-making, Due Process, and fundamental fairness is pushing more and more cases into the Article III Courts). Unfortunately, to date, both Congress and the Article IIIs seem largely willing to watch disaster unfold, rather than taking the bold remedial action required to wrest the Immigration Court System out of the clutches of a spectacularly unqualified Department of Justice and reconstitute them as an independent court system where the standards of Due Process are taught, applied, and enforced!

In the meantime, lives are being needlessly, sometimes intentionally, endangered each day by our failure to live up to the U.S. Constitution!

PWS

03-14-19

HON. ROBERT D. WEISEL @ NY DAILY NEWS: Universal Representation Is A Necessary & Achievable Requirement For Due Process In Immigration Court — Representation Increases Chances Of Success for Migrants 12X!

https://www.nydailynews.com/opinion/ny-oped-everyone-in-immigration-detention-needs-a-lawyer-20190307-story.html

Retired U.S. Assistant chief Immigraton Judge Robert Weisel writhes in the NY Daily News:

As the Trump administration’s immigration agenda sows fear and instability, New Yorkers should be proud that our state is the national leader in ensuring due process for all. In New York, no detained person is forced to face immigration court without an attorney.

Having served nearly three decades as an immigration judge, I can affirm that access to counsel for people facing deportation is an essential component of fairness and an important way to strengthen communities throughout our state.

Consider “Louis’s” story. A lawful permanent resident for more than two decades, “Louis” was a devoted father and beloved basketball and football coach in Rochester when Immigration and Customs Enforcement detained him based on a 10-year-old conviction. While he was detained in Batavia, Louis’s family faced crippling emotional and financial hardship without his income and support. His oldest child suffered a substantial deterioration in his mental health and his young children struggled to cope with their father’s absence.

Had Louis not been a New Yorker, odds are he would have faced deportation without a lawyer. His family would have continued to struggle without their father and, based on the statistical outcomes for unrepresented immigrants, he likely would have been deported — permanently separated from his children and fiancée.

Thankfully, Louis’s case did take place in New York. Louis and his attorneys worked together and won his immigration case. He is now back with his family and coaching sports in his community.

Unlike in criminal court, immigrants in deportation proceedings are not guaranteed an attorney if they cannot hire one. As a result, nearly 70% of detained immigrants and approximately 30% of non-detained immigrants nationwide in deportation proceedings lack legal representation, facing the terrifying prospect of separation from their families while confronting the complexities of U.S. immigration law alone. Representation doesn’t guarantee any outcome, but it does ensure that everyone has access to due process and a fair day in court.

I was the assistant chief immigration judge for New York City and New Jersey in 2013 when a small pilot project, The New York Immigrant Family Unity Project, guaranteed attorneys for immigrants at one New York City immigration court. NYIFUP demonstrated the importance of publicly-funded deportation defense, raising the level of practice in the court and strengthening both fairness and efficiency.

The Vera Institute of Justice evaluated NYIFUP, finding that 48% of immigrants succeeded in their cases, while unrepresented immigrants in the same court were successful only 4% of the time. NYIFUP also produced other benefits — including keeping families together and generating $2.7 million in annual tax revenues from clients who established the right to remain in the United States.

The success of the pilot soon spread NYIFUP statewide. I was proud to partner with Vera when it launched a similar assigned counsel project in the Hudson Valley. Now, as a part of Gov. Cuomo’s Liberty Defense Project, New York State funds deportation defense at all immigration courts upstate, while the New York City Council supports it in New York City.

New York should be proud of its national leadership in ensuring that every detained immigrant in our state has access to representation. However, gaps remain in our state’s approach to ensuring due process for all. Notably, there are 19,000 New Yorkers living in our communities while in deportation proceedings — as opposed to being in detention — who are unable to afford an attorney to represent them.

New York must continue to guarantee counsel for all immigrants facing deportation, and other states should join in our successful experiment.

Weisel served first as an immigration judge, and then as assistant chief immigration judge, in the New York Immigration Court from 1989 until his retirement in 2016. He currently serves as a Senior Consultant to the United Nations High Commissioner for Refugees, advising on issues relating to access to counsel in immigration court proceedings.

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

My good friend and colleague Bob Weisel is “one of the best ever” going back to the early days of EOIR when folks on all levels were actually committed, however imperfectly, to fashioning a better, more professional, and fairer U.S. Immigration Court that would exemplify and promote Due Process.

Of course, our efforts were sometimes flawed. But those of us involved (I happened to be working for the “Legacy INS” at that time which had “spun off” the Immigration Courts into a new entity, EOIR) believed we were learning from our mistakes and successes and were part of an “upward arc” of justice that would, at an appropriate time, evolve into a truly independent court system.

Today, that noble quest has been abandoned in favor of a “race to the bottom” where worst practices are encouraged, “judges” are expected to function like enforcement officers, and Due Process is, at best, an afterthought.

Private attorneys, most serving on a pro bono or “low bono” basis, are among those committed to preserving some semblance of justice and fairness in this broken and dysfunctional system. And, attorneys are making a difference!

There are lots of good ideas out there on how to increase representation — something that actually helps the system produce fair and efficient results and reduce backlogs. For example, a better trained, better regulated, larger corps of “certified non-attorney representatives” working for religious and charitable organizations presents great potential.

But, with the Federal Government interested solely in mindless, wasteful, and ultimately “built to fail” enforcement efforts, at the expense of fairness and correct decisions, the burden falls to states, localities, NGOs, and private sector groups to essentially do the Government’s job for them — uphold and improve our legal system in the face of U.S. Government intransigence and incompetence.

PWS

03-13-19

EOIR DIRECTOR McHENRY TRIES TO EXPLAIN TRASHING OF DUE PROCESS TO SKEPTICAL HOUSE DEMS — DOJ Leadership Has Turned “Courts” Into “A DMV For Deportation,” Says Chairman Jose Serrano (D-NY)!— Many Cases From Trump Shutdown Still “MIA” While Lives Hang In The Balance!

https://www.cbsnews.com/news/immigration-court-government-shutdown-immigrants-waiting-for-cancelled-hearings-rescheduled-2019-03-11/

Kate Smith reports for CBS News:

Immigration courts are still wading through the disruptions caused by the government shutdown, which closed the courts and effectively cancelled between 50,000 and 95,000 hearings in December and January.

Many immigrants are still waiting to have those hearings rescheduled, James McHenry, the director of the Executive Office for Immigration Review which oversees the nation’s immigration courts, told lawmakers during a hearing last week. “The courts are in the process of rescheduling those, they’ve been working overtime since the shutdown ended to get that done,” McHenry said.

Congressman Jose Serrano, who chaired the hearing, called the delay “deeply problematic,” in an email to CBS News. The nation’s immigration courts reopened on January 28 after being closed for over a month during the partial government shutdown.

“It is ironic that this Administration’s obsession with building a wall only increased the number of immigrants in limbo, aggravating an already serious crisis,” said Serrano, who represents New York’s 15th district. “There needs to be a serious effort to reschedule these hearings quickly”

Although McHenry estimated that 50,000 immigration cases were cancelled during the shutdown, others say the number could be nearly double that. According to Syracuse University’s TRAC, 80,051 hearings during the shutdown were either outright cancelled or had their status left unchanged — the hearing date simply came and went without acknowledgement, leaving affected migrants to wonder what comes next.

TRAC said the number of cancelled cases rises to more than 94,000 when it includes other factors, like “Docket Management” or “Immigration Judge Leave.”

Many hearings scheduled for the week after the government reopened were also postponed as court clerks waded through over a month’s worth of filings that hadn’t been touched during the shutdown. Rather than processing those documents, court administrators in Charlotte, North Carolina, for example, threw them into brown cardboard boxes for clerks to deal with once the court opened, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina.

The immigration court system, which is overseen by the Department of Justice, handles a range of cases involving non-citizens, including issuing green cards and ruling on asylum claims. The courts also serve as a necessary step toward temporary Social Security cards — needed for work permits and driver’s licenses — making hearings intensely important for immigrants.

The Executive Office of Immigration Review declined to comment on the status of the courts after the shutdown.

CBS News spoke with six immigration attorneys, all of which have at least one client whose cancelled case hasn’t yet been rescheduled. Many of the hearings that were have yet to be rescheduled are for migrants seeking asylum, a legal form of immigration for people fleeing persecution and threats in their home country. One immigrant was waiting on a final hearing on their asylum case, a decision that would determine whether she gets to stay in the United States or be deported.

“The impact on the client is just not knowing,” said McKinney.

The cancellations have also added to the system’s record-high case backlog, which McHenry estimated to be 850,000 during Thursday’s hearing. Once the courts have fully realized the impact from the shutdown, immigration advocates predict it will get even bigger.

For the immigrants with cancelled hearings, getting back in front of a judge could take years. At the Newark, New Jersey immigration court, some cancelled hearings have been penciled in as far back as August 2021, said Alan Pollack, an immigration attorney in New Jersey, in an interview with CBS News. In Houston, the immigration court begun issuing dates in 2022, said Ruby Powers, an immigration attorney.

“We’re getting a bit used to things taking a while and a dose of chaos,” Powers said.

First published on March 11, 2019 / 12:29 PM

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

Here’s Subcommittee Chairman Jose Serrano’s (D-NY) “spot on” statement about the DOJ’s “dissing” of Due Process at EOIR.

https://appropriations.house.gov/news/press-releases/chairman-serrano-statement-at-hearing-on-executive-office-for-immigration-0

Chairman Serrano Statement at Hearing on Executive Office for Immigration Review

March 7, 2019

Press Release

Congressman José E. Serrano (D-NY), Chair of the Commerce, Justice, Science and Related AgenciesAppropriations Subcommittee, delivered the following remarks at the Subcommittee’s hearing on the Executive Office for Immigration Review:

The subcommittee will come to order.

For our second hearing of the year, today we welcome James McHenry, the Director of the Executive Office for Immigration Review, or EOIR. EOIR primarily functions as our nation’s immigration court system, where it administers and adjudicates our nation’s immigration laws. Thank you for being with us, Director McHenry.

I wanted to hold this hearing because I have deep concerns about how our nation’s immigration courts are operating. Some of those concerns are longstanding, while others have been exacerbated by the decisions of the Trump Administration.

Our nation’s immigration courts handle a wide variety of immigration-related claims, from removal proceedings to asylum claims. These are complex, nuanced proceedings that require time, understanding, and care. In many cases, the consequence—removal from this country—is so severe that we must have significant due process to ensure that no one’s rights are violated in an immigration court proceeding.

Unfortunately, these concerns are increasingly being shoved aside. This, in part, is due to the enormous, and growing, backlog of pending cases before the courts, which is now more than 1 million cases, according to the Transactional Records Access Clearinghouse at Syracuse University. That growth is largely due to the significant increase in immigration enforcement efforts over the past 15 years, which has not been followed by a similar growth in the immigration court system. Although this subcommittee has included significant increases in immigration judge teams for the past two fiscal years, the backlog has actually increased under the Trump Administration. This situation was worsened by the recent government shutdown.

The reasons for that are sadly clear. The leadership at the Justice Department has attempted to turn our immigration courts into a sort of deportation DMV– where immigrants get minimal due process on their way out the door. This Administration has chosen to: impose quotas on immigration judges to limit case consideration regardless of complexity; limit the ways in which immigrants can make valid claims for asylum; increase the use of videoconferencing to reduce in-person appearances; and undermine the discretion of immigration judges to administratively close cases, among many other things. Ironically, these choices, supposedly aimed at efficiency, have actually increased the backlog.

I believe our immigration courts should strive to be a model of due process. A couple of bright spots in that effort are the Legal Orientation Program and the Immigration Court Help Desk, both of which help to better inform immigrants about their court proceedings. We should seek to expand such programs.

Despite these efforts, in our current system, an estimated 63 percent of immigrants do not have legal counsel. We’ve all read stories about children, some as young as 3 years old, being made to represent themselves. That is appalling. Our immigration laws are complicated enough for native English speakers, let alone those who come here speaking other languages or who are not adults. We can, and should, do better than this.

Today’s hearing will explore the choices we are making in our immigration court system, to better understand how the money we appropriate is being used, and whether it is being used in line with our expectations and values. Thank you, again, Director McHenry, for being here.

Now let me turn to my friend, Mr. Aderholt, for any comments he may have.

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

It’s painfully obvious that Director McHenry doesn’t have the faintest idea how many cases are actually “off docket” because of the Trump Administration’s malicious incompetence, a/k/a ”Aimless Docket Reshuffling.”

As Chairman Serrano observed, the vision of the Immigration Courts once was “through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” That noble vision has been replaced by a “partnership” with DHS Enforcement to misconstrue the law, deny rights, punish those we should be protecting, and reduce “Immigration Judges” to menial “rubber stamps” on cruel, illegal, and unduly harsh enforcement actions in the hopes that the Article III Courts will “take a dive” and “defer” rather than intervening to put an end to this travesty.

Chairman Serrano and others have identified the problem. But they haven’t solved it!

That will require the removal of the Immigration Courts from the DOJ and establishing an independent Article I U.S. Immigration Court where Due Process can flourish, fundamental fairness will be the watchword, “best practices” (not merely expediency) will be institutionalized, and all parties will be treated equally and respectfully, thus putting an end to years of preferential treatment of DHS.

PWS

03-12-19

GW CLINIC REPORT: Justice Finally Triumphs — 7-Year Battle On Behalf Of Abused Refugee Woman Succeeds!

Paulina Vera, Esq.; Professor Alberto Benitez; Rachel Petterson

Friends,

Please join me in congratulating S-P-G-G, from El Salvador, whose asylum application was granted by IJ David Crosland on February 26. We received the decision today. When told of the grant, S-P-G-G screamed. She can start the process of bringing her minor son to the USA. Please also join me in congratulating Rachael Petterson, Julia Navarro, Solangel González, Chen Liang, Xinyuan Li, Abril Costanza Lara, Allison Mateo, and Paulina Vera, who worked on this case.

The IJ found that S-P-G-G warranted humanitarian asylum because she established compelling reasons arising from the severity of her persecution. Among other things, she had been raped by her sister’s ex-boyfriend, which resulted in her becoming pregnant, and giving the child up for adoption. S-P-G-G testified that she experiences recurring nightmares, suicidal feelings, a sense of hopelessness, and fear as a result of her persecution.

FYI. The client’s initial hearing was on December 18, 2012, IJ Crosland denied asylum, she appealed to the Board of Immigration Appeals (BIA), which remanded to the IJ, he denied asylum again, she appealed to the BIA, which denied asylum, she appealed to the 4th Circuit Court of Appeals, which remanded to the IJ, and he finally granted asylum on February 26.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School

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

Congrats to SPGG and her wonderful team at the GW Immigration Clinic! More than six years of litigation, two wrongful denials, two appeals to the BIA, one incorrect BIA decision, and a remand from the Fourth Circuit before justice was finally done.

Illustrates four things:

The absolute BS of those like Sessions and other restrictionists who say asylum cases can be raced through the system on an assembly line;
The further BS of claiming that asylum applicants and their lawyers are “gaming” the system when many delays, like this, are caused by poor anti-asylum decision-making within EOIR combined with the DOJ’s incompetent administration of the Immigration Courts;
The importance of full appellate rights, including review by a U.S. Court of Appeals that is actually an independent, fair, and impartial court, not a Government agency masquering as a court;
The absurdity of claiming that unrepresented asylum seekers can receive anything approaching Due Process in the EOIR system, particularly when they are held in inherently coercive “civil immigration detention.”

What if we had a fair, expert Immigration Court system that made every effort to do right by asylum seekers in the first instance by interpreting and applying the law in the generous and humanitarian manner to protect those in need as originally intended in the Refugee Act of 1980 and described by the Supremes in Cardoza-Fonseca?

What if we had a Government that cared about Due Process and worked to promote it rather than attempting to whack it out of shape to screw the most vulnerable among us at every opportunity?

What if the emphasis in the Immigration Courts was on fairness, scholarship, respect, and teamwork with all concerned (not just “partnership” with the prosecutor and politicized Administration goals) rather than on “haste makes waste” methods and gimmicks.

Hey, we could have a working court system where justice was served and more things got done right in the first place, instead of the disgraceful mess that EOIR has become under DOJ’s highly politicized mismanagement!

PWS

03-07-19

IN MATTER OF A-B-, SESSIONS DISINGENUOUSLY SUGGESTED SALVADORAN POLICE COULD PROTECT ABUSED WOMEN – THE TRUTH IS STARKLY DIFFERENT: American-Trained Cops Flee El Salvador Because Gangs Are In Control – Ex-Cops Granted Asylum While Helpless DV Victims Sent Back To Face Deadly Abuse – Trump Administration Continues To Pervert Asylum Law!

https://www.washingtonpost.com/world/the_americas/its-so-dangerous-to-police-ms-13-in-el-salvador-that-officers-are-fleeing-the-country/2019/03/03/e897dbaa-2287-11e9-b5b4-1d18dfb7b084_story.html

Kevin Sief reports in WashPost:

SAN SALVADOR — They were given one of the most dangerous tasks in policing: Take down MS-13.

They were bankrolled by the United States and trained by FBI agents. But members of the Salvadoran police have been killed by the dozens in each of the past three years, most in attacks that investigators and experts blame on MS-13, an international street gang. At least nine officers were killed in the first month of this year.

Now, a number of El Salvador’s police officers are fleeing the gang they were tasked with eliminating.

There is no list in either El Salvador or the United States of Salvadoran police officers who have fled the country. But The Washington Post has identified 15 officers in the process of being resettled as refugees by the United Nations and six officers who have either recently received asylum or have scheduled asylum hearings in U.S. immigration courts. In WhatsApp groups, police officers have begun discussing the possibility of a migrant caravan composed entirely of Salvadoran police — a caravana policial, the officers call it.

The exodus of Salvadoran police points to how the country’s security forces have failed to break the stranglehold of organized crime. It also shows that among those seeking refuge in the United States during the Trump administration are some of America’s closest security partners.

“These are among the most vulnerable people in El Salvador,” said Julio Buendía, the director of migration at Cáritas El Salvador, a nonprofit organization that works with the United States and United Nations on refugee resettlement.

The United States has been bolstering the Salvadoran police, part of a regional strategy intended to stabilize Central America’s most violent countries and reduce migration. The State Department spent at least $48 million to train police in El Salvador, Guatemala and Honduras from 2014 through 2017, according to the Government Accountability Office.

The department opened a law enforcement training academy in San Salvador, where 855 Salvadoran officers were trained by the FBI and other American law enforcement agencies in those four years.

“The Salvadoran government, with U.S. government support, has made significant gains in the area of security, including reductions in homicides and every other category of violent crime measured,” the State Department said in a statement issued in response to an inquiry by The Post.

Citing “privacy reasons,” the department would not comment on whether it was receiving asylum or refugee applications from Salvadoran police officers.

By some measures, the U.S.-backed security efforts appeared to be showing results. In 2018, El Salvador’s murder rate was 50.3 per 100,000 inhabitants. That was still among the highest in the world, but it was down from 60.8 per 100,000 in 2017 and 81 per 100,000 in 2016.

MS-13 was born in Los Angeles in the late 1970s, expanding as more Salvadorans arrived in the United States after fleeing the country’s civil war. The group splintered, with Barrio 18 becoming a chief rival, and both groups grew in American prisons before reaching El Salvador through mass deportations. Between 2001 and 2010, the United States deported 40,429 ex-convicts to El Salvador, according to the Department of Homeland Security.

El Salvador’s government adopted an “iron fist” response to the gangs, including more police operations. When that approach failed, it tried to broach a truce with the gangs in 2014. The pact quickly disintegrated and was followed by another surge in violence. It was then that the gangs began to explicitly broadcast their threats against police officers.

“If you kill a ‘pig,’ or a police officer, you’re more respected in these gangs. That’s the policy — using death as exchange currency,” said Héctor Silva Ávalos, a journalist and researcher who has written a book on the Salvadoran police and has served as an expert witness at several asylum hearings for former police officers in the United States.

A man with an MS-13 tattoo is detained by Salvadoran security forces during an operation in San Salvador in January. (Marvin Recinos/AFP/Getty Images)

With salaries of $300 to $400 per month, the low-level police officers who make up the majority of the force often have no choice but to live in neighborhoods vulnerable to gangs. And so, in the vast majority of the cases, police officers are killed when they are home from work or are on leave.

In August, Manuel de Jesús Mira Díaz was killed while buying construction materials. In July, Juan de Jesús Morales Alvarado was killed while walking with his 7-year-old son on the way to school. In November, Barrera Mayén was killed after taking leave to spend time at home with his family.

The police investigated a number of the killings since 2014 and found members of the major gangs responsible.

“They have more control than we do. When we go home, we’re in neighborhoods where there’s one police to 100 gang members. We’re easy victims,” said one officer in the country’s anti-gang unit, who, after being threatened by MS-13 in his home, is awaiting refugee status from the United Nations. He spoke on the condition of anonymity out of fear for his safety.

An MS-13 member killed a man on a New York subway platform. The gang dates back to the 1970s.

Police arrested a 26-year-old man, who they said is an MS-13 member, after he fatally shot an alleged rival gang member Feb. 3 in Queens. (Allie Caren/The Washington Post)

Complicating their response to the threats, Salvadoran police are also not legally allowed to take their weapons home with them.

“I bring it home anyway. I sleep with it on my waist,” said a female officer, who is awaiting refugee status from the United Nations and spoke on the condition of anonymity out of fear for her safety. “My husband and I take turns sleeping. We know they are going to come for us.”

Many units in the Salvadoran police are forbidden to wear balaclavas to conceal their identities. In anti-gang units, officers are allowed to wear such masks during operations, but they are frequently asked to testify in court, where they must show their faces and identify themselves by name while gang members look on.

In 2017, El Salvador’s attorney general, Douglas Meléndez, urged the government to do more to protect off-duty police, asking the parliament to pass a “protection law” for police and soldiers that would also provide funding to protect their families. The law was never passed.

Last month, security concerns played a central role in a presidential election won by San Salvador’s 37-year-old former mayor, Nayib Bukele. At least 285 people were killed in January, leading up to the vote, which many saw as the gangs’ attempt to leverage their influence amid the election campaign. In a security plan leaked to the Salvadoran news media, Bukele’s campaign wrote: “The expansion of these criminal groups is undeniable, as is the impact on the lives of ordinary citizens.”

In response to the targeting of police officers this year, El Salvador’s police chief introduced a policy: For their own protection, officers were not allowed to return to their homes. The police chief declined multiple interview requests.

Suspects are detained by police in a neighborhood in San Salvador dominated by MS-13. (Marvin Recinos/AFP/Getty Images)

Many officers, feeling unprotected by their own force, have said their only option is to leave the country.

Organizations that work with the United Nations to resettle Salvadoran refugees in the United States say they have found more and more police officers arriving unannounced at their offices. In addition to the 21 asylum seekers and refugees identified by The Post, several others have recently arrived in Spain and Mexico, according to news reports, applying for humanitarian visas or other forms of protection. Lawyers for police officers and many officers themselves say that far more officers are preparing to flee.

One of the cases that Buendía, the migration director of Cáritas, referred to the United Nations High Commissioner for Refugees is an officer who survived two attacks while off duty. First, he was shot eight times by suspected gang members; then, two years later, he was shot four times. The officer pleaded for protection from his commander.

Buendía included a letter from the commander in the officer’s refugee application. “There’s nothing we can do for you,” the commander wrote. “You need to protect yourself.”

A police spokesman declined to comment on the letter.

In one case, concerning a police officer now applying for asylum in U.S. immigration courts, gang members threatened to kidnap the officer’s child at an elementary school in rural El Salvador.

“That’s not what these guys signed up for. It’s one thing to be shot at on the job. It’s another for your family to be targeted while you’re off duty,” said Emily Smith, the attorney representing the officer.

Lawyers such as Smith who are representing the officers typically try to explain to immigration judges that as former police officers, their clients would be persecuted if they were forced to return to El Salvador. But the attorneys are also aware of how narrowly U.S. asylum law can be applied, and that the courts are unlikely to grant asylum to all former officers.

“What we chose to do is focus on the specific threats facing our client,” said Patrick Courtney, who last year represented a Salvadoran officer who had been physically assaulted in his home before fleeing. “We focused on his anti-gang views, on the fact that the threats were directed at him individually.”

Courtney’s client was granted asylum late last year. They discussed where he would live in the United States, and what he would do next. The former officer had only one goal: He wanted to join the United States military.

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

Former policemen have been recognized by BIA precedent as a “particular social group” for asylum for many years. Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). However, in their rush to deny asylum to Central Americans, particularly under this xenophobic Administration, some U.S. immigration Judges and BIA panels simply choose to ignore precedent or to manufacture other reasons to deny asylum.

Granting asylum to endangered former police officers clearly is appropriate; but, granting it to the women targeted because of their gender whom those police cannot protect is equally required. Nevertheless, Sessions simply “streamrolled” the asylum law in Matter of A-B-.

While some U.S. Immigration Judges have recognized that even A-B-, properly read without regard to its pernicious dicta, leaves plenty of room for protecting refugee women who have suffered or fear domestic violence, others, and a number of BIA “panels” have jumped on the “Sessions deportation express.” I wouldn’t count on new AG Bill Barr to restore justice to this system, particularly since he has retained some of Sessions’s worst and most unqualified henchmen on his staff.

That’s why we need a legitimate, independent Immigration Court system not beholden to prejudiced “enforcement only” officials in the DOJ and the Executive Branch. It’s also time for a better and wiser Congress to specifically write gender into the asylum law to guard against this and future scofflaw Administrations who seek to inflict cruelty and injustice on some of the most vulnerable and deserving among us.

PWS

03-04-19

A TROUBLED HOME

GUMMING UP THE WORKS

CARROT OR STICK?

JOB OFFERS RESCINDED

HIT THE ROAD, JUDGE

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Chairman Serrano Statement at Hearing on Executive Office for Immigration Review

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