DOJ FINALIZES REG INTENDED TO CEMENT EVASION OF REGULATORY PROCESS & “RULE BY PRECEDENT” – Drops Some Of The More Controversial Proposals In Proposed Regulation!

Tal Kopan reports for the SF Chronicle:

https://www.sfchronicle.com/politics/article/AG-Barr-moves-forward-with-immigration-court-14063716.php

AG Barr moves forward with immigration court changes

By Tal Kopan

WASHINGTON — Attorney General William Barr has moved forward with a regulation changing the way immigration courts handle appeals, expanding the ability of that court to issue decisions that bind the way all immigration judges must decide cases.

The final version of the proposal, which will be published Tuesday, backs away from other changes after the public raised concerns the appellate body would have too much discretion over precedent.

Barr’s first major regulatory change to the immigration courts continues efforts started by his predecessor, former Attorney General Jeff Sessions, to tighten the ways immigrants can pursue a right to stay in the country. As first reported by The Chronicle, the regulation originally proposed during the George W. Bush administration was revived under President Trump and sent for review in April.

The version set for publication drops some of the more controversial provisions of the original proposal but expands the ability of the appellate body, the Board of Immigration Appeals, to issue binding decisions about immigration law.

A senior Department of Justice official who briefed reporters on the condition of anonymity called the regulation a “cleanup rule more than anything else.” But, the official said, the administration believes it’s important to make the courts “as efficient or as effective through the process as possible.”

The immigration courts are separate from the federal judiciary and exist entirely under the control of the Department of Justice and attorney general. The lower courts hear arguments as to why immigrants should be legally allowed to stay in the U.S. and decide whether they should be deported.

Appeals of those decisions are reviewed by the Board of Immigration Appeals. Under current law, those decisions remain unpublished, and thus not binding on the entire system unless a majority of all members of the board vote to publish it. According to the Department of Justice, the board averages less than 30 such decisions each year.

The new regulation creates another way for decisions to become binding — at the direction of the attorney general. Such a change could allow the attorney general to shape all immigration judges’ decisions by selecting which appellate decisions should become precedent.

The final regulation also expands the circumstances under which the Board of Immigration Appeals can hear cases for potential binding precedent, including “the need to resolve a complex, novel, unusual, or recurring issue of law or fact” in the immigration courts, which would allow the board to take up cases that pose what the department views as a repeat issue in the lower courts. It also would allow the board to weigh parts of the case that lawyers did not bring up at appeal.

One aspect of the proposal that the administration chose not to pursue was expanding judges’ ability to issue cursory opinions that had no written explanation. The Bush-era version would have allowed judges to consider their time and resources in doing so, which the Trump administration opted against. The final version also bowed to concerns and dropped a proposal that would have allowed two out of three judges behind a decision to make their own ruling precedent.

Under Trump, the administration has taken a keen interest in the immigration courts as it seeks to tackle the nearly million-case backlog that allows many migrants seeking asylum and other rights to stay in the country as they wait years for their case to work through the system.

Sessions began using the attorney general’s power to refer cases to himself for review. Under immigration law, the attorney general has the final say over the immigration courts system, similar to the Supreme Court in the federal judiciary. Sessions issued several binding decisions that limited the right to claim asylum for domestic violence and gang violence victims, and he sped up the court process by reducing judge’s discretion to close or postpone cases.

That authority would still exist under this new rule, but the attorney general now could also opt to have a decision with which he agrees issued as binding and skip reviewing the decision himself.

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No wonder they don’t want to use the regulatory process, preferring to “rule by fiat” instead. As this example shows, promulgating a regulation in the face of widespread and well-reasoned public opposition can turn out to be problematic in later court challenges.

The proposed relgulation was a recycled “relic” from the Bush II Admnistration. But, it’s not like the Obama Administration did much for improving Due Process and fundamental fairness in Immigration Court. Honestly, I think that they kind of liked the idea of a subservient, captive, “go along to get along” system that functioned as a bureaucracy yet looked like a court, originally pioneered under Bush II.

Obviously, part of the game here is to misuse the ostensible Immigration “Court” precedent process to shore up the DOJ’s ability to defend DHS’s most extreme positions in the Article III courts. In other words, the Immigration Courts now serve both the interests of DHS Enforcement and the litigating attorneys at OIL who defend DHS’s orders of removal in the Courts of Appeals.

The rights of the individuals, who are supposed to be the focus of this system, have become nominalized, at best. But, some Article III Courts either haven’t bothered to figure this out or else know and just don’t care because, hey, dead, tortured, raped, and otherwise brutalized deportees don’t usually make headlines in the local papers. Out of sight, out of mind.

While DOJ does still “go through the motions” of soliciting briefs on new precedents, such solicitations reach a much smaller audience than do proposed regulatory changes. Also, since the DOJ routinely ignores all the cogent arguments in the briefs and plows ahead with its obviously “predetermined” precedent resolution, some groups have undoubtedly given up on the EOIR “fake” amicus briefing process, preferring instead to marshal their resources for an Article III court challenges. There, real judges still appear to actually read and respond to many, if not all, legal arguments and sometimes are persuaded by them.

For example, our “Roundtable” amicus briefs have had considerable influence in the Article III courts after the same or similar arguments were largely ignored by EOIR and the AG.

But, as I keep suggesting, what if everyone could work together to actually improve Due Process and fix the broken Immigration Court system, rather than having to devote limited high-level pro bono time and resources to fending off further outrageous assaults on the system by the DOJ and DHS? It would also free up time for the Article III Courts which in the near future are likely to have their civil dockets dominated and likely overwhelmed by petitions for review showcasing the sloppy and defective work emanating from the broken and dysfunctional Immigration Courts and their “pedal faster, cut more corners, quality and fairness be damned” philosophy.

Nice work, Tal. Great to have you “back in the immigration headlines again.”

PWS

07-01-19

COURTSIDE EXCLUSIVE — INSIDE EOIR — “TRASHED IN TRANSLATION: EOIR’S Latest Attack On Due Process In Immigration Courts Shocks Professional Interpreters, Outrages Judges!”

EYORE — “Eyore”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

TRASHED IN TRANSLATION: EOIR’S Latest Attack On Due Process In Immigration Courts Shocks Professional Interpreters, Outrages Judges!

By Paul Wickham Schmidt for Immigrationcourtside.com

Alexandria, VA, July 1, 2019. No, it isn’t as dramatic as pictures of drowned families and caged toddlers. But, the effects of the latest move by those running our U.S. Immigration Courts and their political handlers could turn out to be just as deadly. Judges and interpreters were shocked by EOIR’s recently announced truncation of the right to receive effective live interpretations during master calendars as well as more management-ordered “aimless docket shuffling” which both denies due process and artificially “jacks up” already overwhelming backlogs.

How important is master calendar? It’s where individuals make their initial appearance in court and are advised about their right to a lawyer, procedures for obtaining pro bono counsel, given warnings, plead to charges of removability, seek bond if detained, have possible relief from removability explained, file applications for relief like asylum, have hearing dates and filing deadlines set, learn the DHS position on applications, have current address confirmed, receive DHS fillings, make and receive rulings on preliminary motions, and receive warnings as to the dire consequences of failure to appear and meet filing deadlines, to name just some things that go on. In other words, “important stuff.”

What happens when non-judicial politicos interfere with judges’ individual case scheduling and docketing by setting artificial limits on when and how they use interpreters? Cases that have been rescheduled numerous times over the years get “moved to the back of the bus” once again.

Individuals and their lawyers faithfully show up for their long-awaited individual “merits” hearings, sometimes after having traveled hundreds of miles, witnesses and families in tow, only to be informed by a clerk that their cases have been taken off the docket without notice for the “convenience of the agency” and will be rescheduled for some unspecified later date. Evidence goes stale, memories fade, witnesses become unavailable, lawyers move on to other jobs, and country conditions change as these cases drag on literally forever because of political meddling and management incompetence. Perhaps worst of all, these same politicos and bureaucrats engineering the delays and backlogs attempt to shift blame to the victims and judges by limiting legitimate continuances, “expediting” cases that aren’t ready to be heard, and dishonestly calling for totally unneeded restrictive changes in the law.

Ostensibly, the truncation of interpretation resulted from mismanagement on the part of these same politicos and bureaucrats who hired additional judges in a hurry without planning for those judges’ support needs, including in person interpreters. And, take it from me as someone who spent thirteen years on the immigration bench and heard thousands of cases, “telephonic interpretation” is not by any means the equivalent of “in person” interpretation Indeed, at some point, I found the process for telephonic interpretation so time wasting and inadequate, that I just stopped using it. But, that was way back when individual judges had at least a little control over what happened on their dockets and what was necessary to achieve due process in an individual case.

More likely, this move is just another step the intentional “dumbing down” of the immigration court process and the systematic dismantling of what little remains of constitutional due process for those pleading for their lives in a system doing its best to “tune them out.” It will result in more illegal removal orders.

However, these will be hard for appellate courts to detect upon review, because they might not be readily apparent from the English language version of the transcripts. Besides, some Article III courts have also abandoned their duties to the Constitution in a mad rush to “rubber stamp” as many defective removal orders as possible to “clear” their own overcrowded dockets at the expense of integrity, fundamental fairness, and quite frankly, innocent lives.

So shocking has become this “under the radar” further de-professionalization of what disingenuously holds itself out to be a ”court” that readers have been sending me anonymous comments from some distraught individual professional court interpreters. Here’s what one such concerned interpreter had to say (edited to preserve confidentiality);

“Bottomline, no more in-person interpretation for master calendars. In addition, in-person interpreters will be assigned in three-hour blocks only. Judges will no longer be allowed to have two languages in one hearing. I think this means no more relay interpretation between indigenous languages and Spanish. I’m concerned about language access being curtailed.”

These further disgraceful developments, showing a complete disregard for legal norms and individual fairness, should be carefully documented in congressional oversight hearings with an eye toward a future independent Article I immigration court. In the meantime, the Article III courts could and should put a stop to this travesty and force the system to meet at least minimal standards of professionalism and due process pending needed legislative reforms.

No American citizen would want to trust him or herself to this parody of a court system. Yet, due process under our Constitution applies equally to “all persons,” not just citizens, and the stakes in these cases often are life or death. If we refuse to defend the rights of the least among us, who will stand for our rights when the forces of oppression shift their ugly gaze? Even exaulted, yet too often complicit, life-tenured Article III judges should be asking themselves that question.

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

PWS

07-01-19

AMERICA’S “MASS ATROCITY” — Professor Kate Cronin-Furman Says Don’t Kid Yourself About What The Trump Administration Is Doing In Your Name & How “Ordinary Civil Servants” Carry Out The Unthinkable & Unacceptable!

Professor Kate Cronin-Furman writes in the NY Times:

The debate over whether “concentration camps” is the right term for migrant detention centers on the southern border has drawn long-overdue attention to the American government’s dehumanizing treatment of defenseless children. A pediatrician who visited in June said the centers could be compared to “torture facilities.” Having studied mass atrocities for over a decade, I agree.

At least seven migrant children have died in United States custody since last year. The details reported by lawyers who visited a Customs and Border Protection facility in Clint, Tex., in June were shocking: children who had not bathed in weeks, toddlers without diapers, sick babies being cared for by other children. As a human rights lawyer and then as a political scientist, I have spoken to the victims of some of the worst things that human beings have ever done to each other, in places ranging from Cambodia to the Democratic Republic of the Congo to Sri Lanka. What’s happening at the border doesn’t match the scale of these horrors, but if, as appears to be the case, these harsh conditions have been intentionally inflicted on children as part a broader plan to deter others from migrating, then it meets the definition of a mass atrocity: a deliberate, systematic attack on civilians. And like past atrocities, it is being committed by a complex organizational structure made up of people at all different levels of involvement.

Thinking of what’s happening in this way gives us a repertoire of tools with which to fight the abuses, beyond the usual exhortations to call our representatives and donate to border charities.

Those of us who want to stop what’s happening need to think about all the different individuals playing a role in the systematic mistreatment of migrant children and how we can get them to stop participating. We should focus most on those who have less of a personal commitment to the abusive policies that are being carried out.

Testimony from trials and truth commissions has revealed that many atrocity perpetrators think of what they’re doing as they would think of any other day job. While the leaders who order atrocities may be acting out of strongly held ideological beliefs or political survival concerns, the so-called “foot soldiers” and the middle men and women are often just there for the paycheck.

This lack of personal investment means that these participants in atrocities can be much more susceptible to pressure than national leaders. Specifically, they are sensitive to social pressure, which has been shown to have played a huge role in atrocity commission and desistance in the Holocaust, Rwanda and elsewhere. The campaign to stop the abuses at the border should exploit this sensitivity and put social pressure on those involved in enforcing the Trump administration’s immigration policies.

Here is what that might look like:

The identities of the individual Customs and Border Protection agents who are physically separating children from their families and staffing the detention centers are not undiscoverable. Immigration lawyers have agent names; journalists reporting at the border have names, photos and even videos. These agents’ actions should be publicized, particularly in their home communities.

This is not an argument for doxxing — it’s about exposure of their participation in atrocities to audiences whose opinion they care about. The knowledge, for instance, that when you go to church on Sunday, your entire congregation will have seen you on TV ripping a child out of her father’s arms is a serious social cost to bear. The desire to avoid this kind of social shame may be enough to persuade some agents to quit and may hinder the recruitment of replacements. For those who won’t (or can’t) quit, it may induce them to treat the vulnerable individuals under their control more humanely. In Denmark during World War II, for instance, strong social pressure, including from the churches, contributed to the refusal of the country to comply with Nazi orders to deport its Jewish citizens.

The midlevel functionaries who make the system run are not as visibly involved in the “dirty work,” but there are still clear potential reputational consequences that could change their incentives. The lawyer who stood up in court to try to parse the meaning of “safe and sanitary” conditions — suggesting that this requirement might not include toothbrushes and soap for the children in border patrol custody if they were there for a “shorter term” stay — passed an ethics exam to be admitted to the bar. Similar to the way the American Medical Association has made it clear that its members must not participate in torture, the American Bar Association should signal that anyone who defends the border patrol’s mistreatment of children will not be considered a member in good standing of the legal profession. This will deter the participation of some, if only out of concern over their future career prospects.

The individuals running detention centers are arguably directly responsible for torture, which could trigger a number of consequences at the international level. Activists should partner with human rights organizations to bring these abuses before international bodies like the United Nations Human Rights Council. They should lobby for human rights investigations, for other governments to deny entry visas to those involved in the abuses, or even for the initiation of torture prosecutions in foreign courts. For someone who is “just following orders,” the prospect of being internationally shamed as a rights abuser and being unable to travel freely may be significant enough to persuade them to stop participating.

When those directly involved in atrocities can’t be swayed, their enablers are often more responsive. For-profit companies are supplying food and other material goods to the detention centers. Boycotts against them and their parent entities may persuade them to stop doing so. Employees of these companies can follow the example of Wayfair workers, who organized a walkout on Wednesday in protest of their company’s sale of furniture to the contractor outfitting the detention centers. Finally, anyone can support existing divestment campaigns to pressure financial institutions to end their support of immigration abuses.

Many Americans have been asking each other “But what can we DO?” The answer is that we call these abuses mass atrocities and use the tool kit this label offers us to fight them. So far, mobilization against what’s happening on the border has mostly followed standard political activism scripts: raising public awareness, organizing protests, phoning our congressional representatives. These efforts are critical, but they aren’t enough. Children are suffering and dying. The fastest way to stop it is to make sure everyone who is responsible faces consequences.

Dr. Cronin-Furman is an assistant professor of human rights.

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“The fastest way to stop it is to make sure everyone who is responsible faces consequences.”

That includes attorneys who defend indefensible policies in Federal Court as well as Federal Judges all the way up to the Supremes who fail to stand up for Due Process for individuals, and who insist on treating Trump’s overt attacks on our Constitution, democracy, and human dignity as within the scope of “normal” Executive actions rather than intentional and dishonest abuses requiring censure and strong, courageous, unconditional disapproval.

PWS

06-30-19

AMEN: A PRAYER IN THE TIME OF KAKISTOCRACY!

Judge (Ret.) Jeffrey S. Chase writes:

Hi all: I volunteer on Tuesday nights at a free immigration law clinic run by the New Sanctuary Coalition, based in Judson Church In Greenwich Village, NYC. As you can imagine, fear has been running high since the announcement of multi-city raids. Micah Bucey, a minister at Judson, composed the following non-denominational centering prayer that is now recited before each clinic. I share with you for inspiration:

Spirit of Resistance,

You who are beyond the capacity of any border or name,

You who stretch beyond the indignity of any cage

You who envelop us in the power to persist, to protest, and to rehumanize, //

As we bring our passion and our pain to this place,

We offer gratitude for small gatherings that do monumental things,

We offer gratitude for a fierce community that unbuilds walls

And we offer gratitude for dreams of the world we are creating. //

We ask that you

Refresh us with new breath and energy for the long haul,

Guide us through fear, frustration, and panic,

Expand our hearts to envelop all those who pass through this room tonight and all those who have yet to make it to this room,

Ignite the fire of our faith in the truth that love knows no borders. //

Help us to never forget

That ICE is meant to melt,

That you cannot deport a movement,

And that the moral arc of the universe only bends toward justice if we keep bending it together. //

Amen

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

PWS

06-29-19

“BIG MAC WITH LIES” — Acting DHS Sec. Kevin McAleenan Falsely Claims That 90% Of Asylum Seekers Abscond — Actual Court Records Show The Truth: “Most courts showed patterns very similar to national appearance rates — with represented families’ appearance rates close to 100 percent, and unrepresented families somewhat lower.”

Here’s what McAleenan told Congress:

Acting Secretary of Homeland Security Kevin McAleenan testified Tuesday that 90 percent of asylum-seekers tracked under a recently instituted program skipped the hearings in which their cases were to be adjudicated.

Testifying before the Senate Judiciary Committee, McAleenan explained that his department is hampered in its efforts to deter illegal immigration by U.S. laws that allow asylum-seekers to remain on U.S. soil under their own recognizance for months or even years while awaiting a hearing that the vast majority of them simply skip.

“Out of those 7,000 cases, 90 received final orders of removal in absentia, 90 percent,” McAleenan told Senator Lindsey Graham (R., S.C.), referring to the results of a recent DHS pilot program that tracks family units applying for asylum.

“90 percent did not show up?” Graham asked.

“Correct. That is a recent sample from families crossing the border,” McAleenan replied.

https://apple.news/A3pp8Hb9QSA2ZwNpyJnHmPQ

Here’s the truth as compiled by the nonpartisan TRAC on the basis of a case-by-case examination of actual court records:

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

FOR IMMEDIATE RELEASE

The latest case-by-case records from the Immigration Courts indicate that as of the end of May 2019 one or more removal hearings had already been held for nearly 47,000 newly arriving families seeking refuge in this country. Of these, almost six out of every seven families released from custody had shown up for their initial court hearing. For those who are represented, more than 99 percent had appeared at every hearing. Thus, court records directly contradict the widely quoted claim that “90 Percent of Recent Asylum Seekers Skipped Their Hearings.”

These findings were based upon a detailed analysis of court hearing records conducted by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. With rare exception virtually every family attended their court hearings when they had representation. Appearance rates at the initial hearing were 99.9 percent. One reason for these higher rates for represented families is that it is an attorney’s responsibility to keep on top of when and where their client’s hearing is scheduled, and communicate these details to them. Thus, even if the court’s notification system fails, the family still finds out where and when to appear for their hearing.

Under our current system, there is no legal requirement that immigrants actually receive notice, let alone timely notice, of their hearing. Given many problems in court records on attendance that TRAC found, and in the system for notifying families of the place and time of their hearings, these appearance rates were remarkably high. TRAC’s examination of court records also showed that there were nearly ten thousand “phantom” family cases on the court’s books. These were cases entered into the Immigration Court’s database system but with little information apart from a case sequence number. The date of the notice’s filing, charges alleged, and particulars on the family were all blank.

Most courts showed patterns very similar to national appearance rates — with represented families’ appearance rates close to 100 percent, and unrepresented families somewhat lower. Full details by nationality and court are available at:

https://trac.syr.edu/immigration/reports/562/

In addition, a number 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 May 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:

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

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

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

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

http://facebook.com/tracreports

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

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

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

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

Obviously, if McAleenan and the Administration were serious about court appearances, rather than spreading lies and creating chaos, they would work with the pro bono bar and NGOs to establish a universal representation program for asylum seekers. That would achieve nearly 100% compliance with hearing notices while promoting the rule of law and Constitutional Due Process. Not to mention that they should be investing in “quality control” in the issuance of the hearing notices, which all too often are erroneously addressed or improperly served.

Lawyers and improved notice as well as more professional adjudications that actually comply with the generous legal standards for asylum established by Congress and the Supreme Court would be much smarter and better investments than detention, more enforcement officers, bogus in absentia hearings (most based on defective notices), attempting to force asylum seekers to apply or wait in dangerous third countries without functioning asylum systems, and smearing lawful asylum applicants in support of totally unwarranted changes in the law.

Additionally, with lawyers and fair, impartial, and properly trained independent judges, many more of these asylum cases could be granted in short order, thus helping eliminate largely self-created Immigration Court backlogs and unnecessary appeals that burden the system as a result of the Administration’s constant malfeasance (a/k/a “malicious incompetence” resulting in “Aimless Docket Reshuffling”).

In the meantime, McAleenan’s lies, distortions, and misrepresentations under oath should certainly be grounds for a Congressional investigation into why he retains his current position and why DHS is using taxpayer money to falsify data to support a bogus attack on lawful asylum seekers.

Also interesting, but not surprising, that EOIR has 10,000 “phantom family cases” in its system.

PWS

06-19-19

YOUR TAX DOLLARS AT WORK: Trump, DHS Promise, “Reign Of Terror” Directed At Families In Ethnic Communities — “Orphaning” U.S. Citizen Children And/Or Feeding Them & Other Vulnerable Kids To MS-13 & Other Gangs As “Fresh Meat” America’s New Objectives! — But, The Law & Reality Could Be Problems For Trump & His Sycophants @ ICE!

https://www.washingtonpost.com/immigration/trump-vows-mass-immigration-arrests-removals-of-millions-of-illegal-aliens-starting-next-week/2019/06/17/4e366f5e-916d-11e9-aadb-74e6b2b46f6a_story.html

Nick Miroff & Maria Sacchetti report in WashPost:

President Trump said in a tweet Monday night that U.S. immigration agents are planning to make mass arrests starting “next week,” an apparent reference to a plan in preparation for months that aims to round up thousands of migrant parents and children in a blitz operation across major U.S. cities.

“Next week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States,” Trump wrote, referring to U.S. Immigration and Customs Enforcement. “They will be removed as fast as they come in.”

Large-scale ICE enforcement operations are typically kept secret to avoid tipping off targets. In 2018, Trump and other senior officials threatened the mayor of Oakland, Calif., with criminal prosecution for alerting city residents that immigration raids were in the works.

Trump and his senior immigration adviser, Stephen Miller, have been prodding Homeland Security officials to arrest and remove thousands of family members whose deportation orders were expedited by the Justice Department this year as part of a plan known as the “rocket docket.”

In April, acting ICE director Ronald Vitiello and Homeland Security Secretary Kirstjen Nielsen were ousted after they hesitated to go forward with the plan, expressing concerns about its preparation, effectiveness and the risk of public outrage from images of migrant children being taken into custody or separated from their families.

Vitiello was replaced at ICE by former FBI and Border Patrol official Mark Morgan, who had impressed the president with statements on cable television in favor of harsh immigration enforcement measures.In his first two weeks on the job at ICE, Morgan has said publicly that he plans to beef up interior enforcement and go after families with deportation orders, insisting that the rulings must be carried out to uphold the integrity of the country’s legal system.

“Our next challenge is going to be interior enforcement,” Morgan told reporters June 4 in Washington. “We will be going after individuals who have gone through due process and who have received final orders of deportation.

“That will include families,” he said, adding that ICE agents will treat the parents and children they arrest “with compassion and humanity.”

[New ICE chief says agency plans to target more families for deportation]

U.S. officials with knowledge of the preparations have said in recent days that the operation was not imminent, and ICE officials said late Monday night that they were not aware that the president planned to divulge their enforcement plans on Twitter.

Executing a large-scale operation of the type under discussion requires hundreds — and perhaps thousands — of U.S. agents and supporting law enforcement personnel, as well as weeks of intelligence gathering and planning to verify addresses and locations of individuals targeted for arrest.

The president’s claim that ICE would be deporting “millions” also was at odds with the reality of the agency’s staffing and budgetary challenges. ICE arrests in the U.S. interior have been declining in recent months because so many agents are busy managing the record surge of migrant families across the southern border with Mexico.

The family arrest plan has been considered even more sensitive than a typical operation because children are involved, and Homeland Security officials retain significant concerns that families will be inadvertently separated by the operation, especially because parents in some households have deportation orders but their children — some of whom are U.S. citizens — might not. Should adults be arrested without their children because they are at school, day care, summer camp or a friend’s house, it is possible parents could be deported while their children are left behind.

[Before Trump’s purge at DHS, top officials challenged plan for mass family arrests]

Supporters of the plan, including Miller, Morgan and ICE Deputy Director Matthew Albence, have argued forcefully that a dramatic and highly publicized operation of this type will send a message to families that are in defiance of deportation orders and could act as a deterrent.

In this file photo from 2015, a man is detained by Immigration and Customs Enforcement agents in Los Angeles. New raids could target a large number of immigrants in major cities. (John Moore/Getty Images)

According to Homeland Security officials, nearly all unauthorized migrants who came to the United States in 2017 in family groups remain present in the country. Some of those families are awaiting adjudication of asylum claims, but administration officials say a growing number are skipping out on court hearings while hoping to live and work in the United States as long as possible.

Publicizing a future law enforcement operation is unheard of at ICE. Trump administration officials blasted Oakland Mayor Libby Schaaf last year for warning immigrants about an impending raid, saying she endangered agents’ safety.

“The Oakland mayor’s decision to publicize her suspicions about ICE operations further increased that risk for my officers and alerted criminal aliens — making clear that this reckless decision was based on her political agenda with the very federal laws that ICE is sworn to uphold,” then-ICE Deputy Director Thomas D. Homan said at the time.

Homan later retired, but last week Trump said Homan would return to public service as his “border czar.” On Fox News, Homan later called that announcement “kind of premature” and said he had not decided whether to accept the job.

Schaaf responded late Monday to the president’s tweet teasing the looming ICE roundups.

“If you continue to threaten, target and terrorize families in my community . . . and if we receive credible information . . . you already know what our values are in Oakland — and we will unapologetically stand up for those values,” she wrote.

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The pain, terror, racism, and disregard for human rights is real. But, the ability to summarily remove the “millions” of our fellow humans Trump claims as his objective might be limited by both reality (lack of resources) and the law.

Many of those with so-called “final orders” were tried “in absentia.” Many of those never received legal notice of their hearings. (All reputable studies show that asylum applicants who actually understand the system, have fair access to pro bono lawyers, and receive legally sufficient hearing notices appear at rates close to 100% of the time, even if they lose their cases).

If that is the case, and they can get lawyers, they can file a “motion to reopen” for lack of legal notice and receive a statutory stay of removal while both the Immigration Judge, and if denied, the Board of Immigration Appeals rule on the motion. And, the Immigration Courts are totally screwed up and backlogged due to Trump’s and the DOJ’s “malicious incompetence.” So, good luck with that.

Large numbers of deportees would also further destabilize the already “failed states” of the Northern Triangle thus insuring a continuing outward flow. Indeed, some of those deported might well “head north” again — only this time they won’t be dumb enough to entrust themselves to the U.S. legal system.

They will just disappear into the interior where their chances of being found again are probably less than their chances of being harmed in the Northern Triangle. No amount of authoritarian militarization of our internal police force is going to locate and remove 10-11 million people, most of them residing quietly and productively in our communities throughout America.

But, Trump has never been about results. (Nor has DHS for that matter). He’s all about White Nationalist hatred, racism, and appealing to a “base” that long ago abandoned the rest of America (the majority of us) and human values.

And let’s not forget the responsibility of Congress and the Article III Courts who for years have mostly overlooked the glaring Constitutional defects and clear incompetence and bias evident in the Immigration Court system as administered by the Department of Justice. It has taken the Article IIIs’ complicity in a legally defective system to produce these so-called “final orders” in the first place.

Every dead kid, broken family, and new forced gang recruit should be on their collective consciences. And, the primary result of the “New Reign of Terror” will undoubtedly be fear of cooperating with local police in solving crimes, thus making ethnic Americans “perfect victims” who have been abandoned by those who are failing in their legal duties to insure “equal justice for all.”

2020 might be our last chance to save our country and humanity. Don’t blow it! Who knows, the life you save might be your own!

PWS

06-18-19

JUSTICE BY OMAR THE TENTMAKER: Already A Circus, Trump & Barr Plan To Turn What’s Left Of America’s Immigration Courts Into A Traveling Tent Show!

https://apple.news/AAfRRMBVoRdSDB3MNFh7__w

Priscilla Alvarez & Geneva Sands reort for CNN:

Trump admin considers temporary courts along the southern border

5:44 PM EDT June 17, 2019
Washington

The Trump administration is considering building temporary courts along the southern border as part of an effort to expand its policy of returning some asylum seekers to Mexico for the duration of their immigration proceedings, according to two administration officials.

The US recently struck an agreement with Mexico that included expanding the policy, which, the administration argues, serves as a deterrent since it keeps migrants waiting in Mexico, instead of within the US.

Site assessments have been completed for almost all the ports of entry to determine where such temporary immigration courts, described by sources as “soft-sided,” would be needed, according to an administration official.

The facilities could be used to conduct hearings via video teleconference, which has previously been used by immigration courts elsewhere in the country, the official said.

The deal to expand the “Remain in Mexico” program across the border earlier this month came amid threats to impose tariffs on Mexico if it didn’t bolster enforcement.

Mexico, the joint declaration said, would authorize the entrance of asylum seekers, and offer jobs, health care and education to those individuals. In return, the US must expedite the asylum adjudication process. Consideration to erect immigration courts, which are overseen by the Justice Department, appears to be a step in that direction.

Migrants who are sent to Mexico to await their court hearings return to the US through a port of entry along the southern border to then be transported to their hearing. The temporary courts would allow migrants to have their hearings near or at the port, rather than being bussed miles away, said the official.

It also would likely help alleviate the caseload at San Diego and El Paso immigration courts, which have been taking these cases.

The Justice Department’s Executive Office of Immigration Review referred questions about the so-called Migrant Protection Protocols program to the Department of Homeland Security. A DHS official confirmed that the temporary structures are being considered, adding that the crisis has strained the immigration courts along the border. The administration has repeatedly requested additional immigration judges to chip away at a massive backlog that’s led to cases being scheduled years down the road.

The “Remain in Mexico” policy began in January and immediately received pushback back from immigrant advocates and lawyers who argue that it puts migrants who are predominantly from Northern Triangle countries of Guatemala, Honduras, and El Salvador and seeking asylum in the US in harm’s way.

As of May, the US had returned around 6,000 people to Mexico to await their court hearings. The number of migrants falling under the policy appears to be doubling over time, but it is unclear how many additional people have been added to the program since the agreement with Mexico was struck.

One of the locations actively working toward implementing the program is the Rio Grande Valley region in Texas, the busiest sector for arrests of people illegally crossing the border, a senior Border Patrol official told CNN.

Before the program can get underway in the region, officials need to first have the infrastructure in place, including logistics for court hearings. The US also needs to engage with Mexico and ensure its government is willing to receive migrants across the border, said the official.

Like other administration immigration policies, returning migrants to Mexico has also been challenged in court.

In May, a federal appeals court allowed the Trump administration to continue returning some asylum seekers to Mexico for the time being. A panel of the 9th US Circuit Court of Appeals, while split on some issues, listed a number of factors that went into the decision, including risk of injury in Mexico and negotiations between the US and Mexico.

© 2019 Cable News Network, Inc. A WarnerMedia Company. All Rights Reserved.

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

Not surprisingly, no mention of guaranteeing attorney access, effective notice, or reasonable access to legal resources for those retuned to Mexico. Trump is emboldened by a dysfunctional Congress under Mitch McConnell and complicit Article III Courts like the 9th Circuit, unwilling to put an end to this grotesque perversion of our statutory laws, our Constitution, and human rights. It’s also a recipe for more “Aimless Docket Reshuffling” and bigger backlogs in Immigration Courts. But undoubtedly, Trump will blame others for the problems he has created.

PWS

06-18-19

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS “NEW DUE PROCESS ARMY”

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called “courts” in places where no legal services are available, using a variety of largely untrained “judges,” themselves operating on moronic and unethical “production quotas,” many appearing by poorly functioning and inadequate televideo? Would a real court system put out a “fact sheet” of blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

This hostility particularly targets the most vulnerable among us – asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years – failed policies that we now are mindlessly “doubling down” upon.

My friends have given you the law. Now, I’m going to give you the “facts.” Let’s go over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in today’s “weaponized” Immigration Courts.

I, of course, hold harmless the FBA, the “Burmanator,” my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call.”

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic “dumbed down” regime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.

After the “Ashcroft Purge of ’03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.

Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.” Your job is to expose this fraud to the Article IIIs in all of its ugliness and “malicious incompetence.”

Yes, I know, many “real” Federal Judges don’t like immigraton cases. “Tough noogies” — that’s their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their “comfort zones” so that they can “get to yes” for your client. But, this assumes a system operating professionally and in basic good faith. In the end, it’s not about fulfilling the judge’s or opposing counsel’s career fantasies or self-images. It’s about getting Due Process and justice for your client under law.

And, if Article III judges don’t start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents. In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials — in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts. This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to “de-personize” and effectively “de-humanize” minority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the “due process hit list.”

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process; 3) make the historical record; and 4) fight “Dred Scottification.”

I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.” If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on “Courtside.”

Folks, the antidote to “malicious incompetence” is “righteous competence.” The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.”

The Immigration Court’s once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! “Malicious incompetence” never!

(05-17-19)

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

PWS

05-20-19

ALL THINGS CONSIDERED: “Roundtable” Leader Judge Jeffrey Chase Tells NPR’s Michel Martin How Trump’s “Malicious Incompetence” & EOIR’s “Dysfunctional Bias” Are Increasing Backlog & Killing Due Process In Failing Immigration Court System

https://www.npr.org/2019/05/19/724851293/how-trumps-new-immigration-plan-will-affect-backlog-of-pending-cases

Here’s the transcript:

LAW

How Trump’s New Immigration Plan Will Affect Backlog Of Pending Cases

5:40

DOWNLOAD

TRANSCRIPT

May 19, 20195:35 PM ET

Heard on All Things Considered

NPR’s Michel Martin speaks with Jeffrey Chase, a former immigration judge, about how President Trump’s new proposals will affect immigration courts.

MICHEL MARTIN, HOST:

This is ALL THINGS CONSIDERED from NPR News. I’m Michel Martin. Immigration, both legal and unauthorized, has been a central issue for Donald Trump since he announced his candidacy for president. Last week, he announced his plan for an overhaul to the current system, which emphasizes family ties and employment, moving to a system that would prioritize certain education and employment qualifications.

Overshadowing all of this, however, is the huge backlog of immigration cases already in the system waiting to go before the courts. More than 800,000 cases are waiting to be resolved, according to The New York Times. We wanted to get a sense of how the immigration courts are functioning now and how the new system could affect the courts, so we’ve called Jeffrey Chase. He is a retired immigration judge in New York. He worked as a staff attorney at the Board of Immigration Appeals. We actually caught up with him at the airport on his way back from a conference on national immigration law, which was held in Austin, Texas.

Mr. Chase, welcome. Thank you so much for joining us.

JEFFREY CHASE: Thank you. Yeah, it seems appropriate to be at JFK Airport talking about immigration. So…

MARTIN: It does.

CHASE: It worked out.

MARTIN: So, first of all, just – as you said, you’re just coming back from this conference. Could you just give me – just overall, what are you hearing from your colleagues, particularly your former colleagues in the courts, about how this system is functioning now? How do they experience this backlog? Is it this unending flow of cases that they can’t do anything with? Or – how are they experiencing this?

CHASE: Yeah. You know, the American Bar Association just put out a report on the immigration courts recently in which they said it’s a dysfunctional system on the verge of collapse. And that was, basically, agreed to by everybody at the conference, including sitting immigration judges. What the judges have said is that the new judges being hired are pretty much being told in their training that they’re not really judges, that instead, they should view themselves as loyal employees of the attorney general and of the executive branch of government. They are basically being trained to deny cases not to fairly consider them.

So, you know, the immigration court itself has to be neutral, has to be transparent and has to be immune from political pressures. And unfortunately, the immigration courts have always been housed within the Department of Justice, which is a prosecutorial agency that does not have transparency and which is certainly not immune from political pressures. So there’s always been this tension there, and I think they’ve really come to a head under this administration.

MARTIN: Well, the president has said that his new proposal should improve the process by screening out meritless claims. And I think his argument is that because there will be a clearly defined point system for deciding who is eligible and who is not, that this should deter this kind of flood of cases. What is your response to that?

CHASE: Yeah, I don’t think it addresses the court system at all because he’s talking – his proposal addresses, you know, the system where people overseas apply for visas and then come here when their green cards are ready. And those are generally not the cases in the courts. The courts right now are flooded with people applying for political asylum because they’re fleeing violence in Central America.

MARTIN: Well, can I just interrupt here? So you’re just saying – I guess on this specific question, though, you’re saying that this proposal to move to a system based on awarding points for certain qualifications would not address the backlog because that is not where applicants come in. Applicants who are a part of this backlog are not affected by that. Is that what you’re saying?

CHASE: Yes. Applying for asylum is completely outside of that whole point system and visa system. And that’s saying that anyone who appears at the border or at an airport and says, I’m unable to return; I’m in fear for my life, goes on a whole different track.

MARTIN: And so, finally, what would affect this backlog? What would be the most – in your view, based on your experience – the most effective way to address this backlog – this enormous backlog of cases?

CHASE: I think, to begin with, any high-volume court system – criminal courts, you know, outside of the immigration system – can only survive when you have – the two parties are able to conference cases, are able to reach pre-case settlements, are able to reach agreements on things. If you could imagine in the criminal court system, if every jaywalking case had to go through a – you know, a full jury trial and then, you know, get appealed all the way up as high as it could go, that system would be in danger of collapse as well. So I think you have to return to a system where you allow the two sides to negotiate things.

And you also have to give the judges – let them be judges. Give them the tools they need to be judges and the independence they need to be judges. And lastly, you have to prioritize the cases.

MARTIN: Before we let you go, I assume that there were different political perspectives at this conference, given that people come from all different sectors of that – of the bar. And I just wondered – and I assume that there are some there who favor more restrictionist methods and some who don’t. I was wondering, overall, was there a mood at this conference?

CHASE: I think the overall mood, even amongst the restrictionist ones – the idea that, you know, look; judges have to be allowed to be judges and have to be given the respect and the tools they need to do their job is one that’s even held by the more restrictionist ones. And although the government people aren’t allowed to speak publicly under this administration, I think privately, they’re very happy about a lot of the advocates fighting these things and bringing – making these issues more public.

MARTIN: Jeffrey Chase is a former immigration judge. He’s returned to private practice. And we actually caught up with him on his way back from an immigration law conference in Austin, Texas. We actually caught up with him at the airport in New York.

Jeffrey Chase, thank you so much for talking to us.

CHASE: Thank you so much for having me on the show.

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

Go to the link for the full audio from NPR.

I agree with my friend Jeffrey that the sense at the FBA Immigration Conference in Austin, TX was that EOIR had hit “rock bottom” from all angles: ethics, bias, and competence, but amazingly was continuing in “free fall” even after hitting that bottom. It’s difficult to convey just how completely FUBAR this once promising “court system” has become after nearly two decades of politicized mismanagement from the DOJ culminating in the current Administration’s “malicious incompetence” and EOIR’s aggressive disdain for its former “Due Process mission.”

PWS

05-21-19

AS TRUMP’S POLICY OF “MALICIOUS INCOMPETENCE” CONTINUES TO UNRAVEL, UNHINGED PREZ CONSIDERS MASSIVE VIOLATIONS OF CONSTITUTION & HUMAN RIGHTS — “OPERATION WETBACK 2019” In The Offing?

https://www.washingtonpost.com/politics/white-house-leaves-open-possibility-of-invoking-insurrection-act-to-remove-migrants/2019/05/17/6b49c2c4-7892-11e9-bd25-c989555e7766_story.html

John Wagner reports for the Washington Post:

A White House spokesman left often the possibility Friday that President Trump would invoke an arcane law that would allow him to deploy the military to remove illegal immigrants, as Trump warned migrants on Twitter that they could be leaving the country soon.

Asked during a television appearance whether Trump is considering using the Insurrection Act, spokesman Hogan Gidley said the president is “going to do everything within his authority to protect the American people” and has “lots of tools at his disposal.”

“We haven’t used them all, and we’re looking at ways to protect the American people,” Gidley said during an appearance on Fox News’s “Fox & Friends.”

His interview took place amid a series of tweets from Trump, including some that suggested new actions to crack down on illegal immigration.

[Trump’s plan to overhaul legal immigration draws cool reception]

“All people that are illegally coming into the United States now will be removed from our Country at a later date as we build up our removal forces and as the laws are changed,” Trump said in one tweet. “Please do not make yourselves too comfortable, you will be leaving soon!”

In another, Trump said “bad ‘hombres’” were being detained and would be “sent home.”

His tweets followed a Rose Garden speech on Thursday about a new immigration plan that opened him to criticism from conservatives for not pressing a harder line.

The new White House proposal seeks to prioritize the admission to the United States of high-skilled workers over those with family members who are U.S. citizens, but it does not change the net level of green cards allocated each year.

The proposal sidestepped some major components of the nation’s immigration system that can be far more complex and controversial to resolve, such as the fate of the estimated 11 million immigrants without legal status and visas for temporary, low-skilled workers — issues that have divided the Republican Party and pit the business community against labor unions.

In a sign of sensitivity to criticisms from immigration hard-liners, The Post reported Thursday that Trump’s advisers are looking at measures behind the scenes such as the Insurrection Act, an arcane law that allows the president to employ the military to combat lawlessness or rebellion, to remove illegal immigrants.

The idea of using the law was first reported by the Daily Caller, a conservative news outlet, after Trump finished his speech Thursday afternoon.

Such a plan would involve deployment of the National Guard and cooperation of governors who might not be inclined to go along with Trump’s order.

Seung Min Kim, Josh Dawsey and David Nakamura contributed to this report.

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Sounds like the “brainchild” of Stephen Miller!

Nothing brings cowardly nativists to their knees more quickly than hordes of unarmed, desperate migrants seeking to exercise their legal and human rights! The Trump Administration might be “rattling the sword” with Iran, but truth is that they are scared of their own shadows. Race-baiting and threatening the weakest, most vulnerable, and defenseless among us are about the only things they know how to do.

PWS

05-17-19

TRUTH MATTERS: SETTING THE RECORD STRAIGHT: AILA Blasts EOIR’s False & Unethical Anti-Asylum Screed! — “Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions. EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.”

https://www.aila.org/advo-media/aila-policy-briefs/aila-policy-brief-facts-about-the-state-of-our

Policy Brief: Facts About the State of Our Nation’s Immigration Courts May 14, 2019
Contact: Laura Lynch (llynch@aila.org) or Kate Voigt (kvoigt@aila.org)
On May 8, 2019, the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) distributed a document to journalists that contained misleading material related to our nation’s immigration courts.1 The document, which purports to list “myths” and “facts”, is also filled with political rhetoric.2 America’s courts are meant to be impartial, dedicated to fairly and efficiently adjudicating the cases brought before them. Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions.3 EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.
• The immigration court structure is inherently flawed
Unlike many judicial bodies, the immigration courts lack independence from the executive branch because they are administered by EOIR, which is housed under DOJ – the same agency that prosecutes immigration cases at the federal level.4 This inherent conflict of interest is made worse by the fact that immigration judges (IJs) are considered merely government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the U.S. Attorney General (AG), the chief prosecutor in immigration cases.
Because of this structural flaw, the immigration court system has long been vulnerable to political pressure from the executive branch. For example, the courts have been repeatedly subject to “aimless docket reshuffling” based on politically motivated priorities.5 President Obama’s administration prioritized the adjudication of “family unit” cases which EOIR recently determined “coincided with some of the lowest levels of case completion productivity in EOIR’s history.”6 President Trump ordered IJs deployed to detention facilities on the border where they reported that they had very few cases to adjudicate. Over 20,000 cases were rescheduled as a result of the Administration’s deployment.7
• EOIR imposed unprecedented case completion quotas on judges, pressuring them to rush through cases at the expense of well-reasoned decisions
Despite opposition from immigration judges,8 EOIR imposed unprecedented case completion quotas, tying judges’ individual performance reviews to the number of cases they complete.9 Under the new requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.10 A strict time frame for completion of cases can interfere with a judge’s ability to ensure that a person’s right to examine and present evidence is respected, to provide adequate time to obtain an attorney, secure various expert witnesses, and obtain evidence from overseas.11 This kind of rushed, assembly-line justice is unacceptable to impose on IJs who are making important, often life-or-death, decisions.
During a March 7, 2019 congressional hearing, the director of EOIR asserted that several other agencies also utilize “case completion goals.”12 However, other agencies’ goals are used to determine resource allocation, while EOIR’s case completion quotas are tied directly to an IJ’s performance evaluations.13
AILA Doc. No. 19051438. (Posted 5/14/19)

AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the National Association of Immigration Judges (NAIJ) as a “death knell for judicial independence.”14 In fact, recommendations made by an independent third party in a report commissioned by EOIR itself propose a judicial performance review model that “emphasizes process over outcomes and places high priority on judicial integrity and independence.”15
• Scholars have concluded that immigrants represented by attorneys fare better at every stage of the court process
While Federal law guarantees immigrants facing deportation the right to be represented by an attorney, it does not provide immigrants with an attorney at the government’s expense if they cannot afford representation.16 Only 37 percent of all noncitizens and 14 percent of detained noncitizens are represented.17 However, the American Immigration Council has found that “immigrants with attorneys fare better at every stage of the court process” – people with attorneys are more likely to be released from detention during their case, they are more likely to apply for some type of relief, and they are more likely to obtain relief from deportation.18 The consequences for people who face removal without representation are severe: detained immigrants in removal proceedings who lack representation are about ten times less likely to obtain relief.19 Despite statistics that show the assistance of counsel has a significant positive impact on outcomes, thousands of families and unaccompanied children fleeing persecution and violence at home have appeared in immigration court over the years without a lawyer at their side.
Attorneys also help facilitate more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, stated, “when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”20 Recent studies have also confirmed that immigrants with representation are far more likely to comply with court appearance requirements.21 A recent report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) found that, as of December 2017, 97 percent of mothers in immigration court represented by counsel were in compliance with their immigration court obligations over a three year period.22
• The Legal Orientation Program improves judicial efficiency and fundamental fairness
EOIR has operated the Legal Orientation Program (LOP) in immigration detention centers since 2003.23 While not a substitute for legal counsel, LOP is often the only source of basic legal information that assists detained immigrants in navigating a complex court process. In fact, LOP has been proven to increase court efficiency and save taxpayer dollars. A 2012 study commissioned by DOJ demonstrated that the program decreased the average length of time a person is detained by an average of six days, saving approximately $17.8 million each year.24 EOIR’s own website publicly endorsed the LOP program in 2017, stating that “[e]xperience has shown that the LOP has had positive effects on the immigration court process,”25 and an independent report commissioned by EOIR recommended that DOJ “consider expanding know your rights and legal representation programs, such as … LOP.”26 Despite this overwhelming support, DOJ attempted to end the program in April 2018 and removed content on its website that endorsed the program.27 After significant criticism, it rescinded its proposed termination, but continues to undermine the program by releasing flawed evaluations of its efficacy. 28
• Court statistics demonstrate that asylum grant rates vary widely depending on the judge
It is well-documented that the disparity in asylum grant rates is an endemic problem.29 The grant rates for cases vary widely depending on the judge—asylum grant rates are less than 5 percent in some jurisdictions yet higher than 60 percent in others—and give rise to criticism that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.30 EOIR has not taken adequate
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corrective action to address this problem and ensure that court proceedings are conducted in a fair and consistent manner. The agency’s inadequate response illustrates the weakness of a court system not overseen by an independent judicial agency whose primary function is to ensure the rule of law, impartiality, and due process in the adjudication of cases.
• Use of video teleconferencing (VTC) undermines the quality of communications during immigration hearings and threatens due process
For years, legal organizations have opposed the use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.31 An empirical study published in the Northwestern University Law Review revealed that detained respondents appearing via VTC were more likely to be deported than those with in-person hearings.32 In April of 2017, a separate EOIR-commissioned report explained that VTC technology does not provide for the ability to transmit nonverbal cues, which can impact an immigration judges’ assessment of an individual’s demeanor and credibility.33 The report concluded that proceedings by VTC should be limited to procedural matters because appearances by VTC may interfere with due process.”34
Additionally, technological glitches such as weak connections and bad audio can make it difficult to communicate effectively via VTC. An EOIR-commissioned study revealed that 29 percent of EOIR staff reported that VTC caused meaningful delay, a finding that is supported by accounts from courts including Omaha, which reported that VTC technology works “sometimes,” Salt Lake City, where observers stated that “technical delays are common,” and New York City, where immigration attorneys describe a VTC connection that “often stops working.”35 While EOIR claims that few cases are continued due to VTC malfunction, in reality, judges are only allowed to record one reason for a case being continued even if VTC issues contribute to a delay, which means that EOIR’s data is far from precise. 36 Despite these concerns, EOIR has expanded its use of VTC for substantive hearings, going as far as to create two immigration adjudication centers where IJs adjudicate cases from around the country from a remote setting.37
• Congress must establish an Article I immigration court system to ensure functioning courts
Congress should conduct rigorous oversight into policies that have eroded the court’s ability to ensure that decisions are rendered in a timely manner and consistent with the law and the Constitution’s guarantee of due process. However, given its political dysfunction, years of underfunding, and inherently flawed structure, our immigration court system must be restructured into an Article I court system in order to restore the most important guarantee of our legal system: the right to a full and fair hearing by an impartial judge.38 For more information, go to www.aila.org/immigrationcourts.
1 EOIR, Myths vs. Facts About Immigration Proceedings, May 8, 2019.
2 The National Association of Immigration Judges (NAIJ) stated that “DOJ’s key assertions under both the “myths” and the “facts” either mischaracterize or misrepresent the facts.” See NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019. Furthermore, twenty-seven retired immigration judges (IJ) and former members of the Board of Immigration Appeals (BIA) deemed the document to be “political pandering” and proclaimed that “American Courts do not issue propaganda implying that those whose cases it rules on for the most part have invalid claims.” Round Table of Former Immigration Judges, EOIR “Myth vs. Fact” Memo, May 13, 2019.
3 Catherine Shoichet, CNN Politics, The American Bar Association says US immigration courts are ‘on the brink of collapse’, Mar. 20, 2019.
4 DOJ, Organization Chart, Feb. 5, 2018.
5 Retired Immigration Judge Paul Schmidt, Speech to the ABA Commission, Caricature of Justice: Stop the Attack on Due Process, Fundamental Fairness, and Human Decency in Our Captive Dysfunction U.S. Immigration Courts!, May 4, 2018; NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
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6 Eric Katz, Government Executive, ‘Conveyer Belt’ Justice: An Inside Look at Immigration Courts, Jan. 22, 2019; EOIR, Tracking and Expedition of “Family Unit” Cases, Nov. 11, 2018
7 National Immigrant Justice Center (NIJC), Internal DOJ Documents Reveal Immigration Courts’ Scramble to Accommodate Trump Administration’s “Surge Courts, Sept. 27, 2017.
8 NAIJ, Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, May 2, 2018.
9 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018; Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018; and EOIR’s Strategic Caseload Reduction Plan, Oct. 23, 2017.
10 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018.
11 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence. See AILA Policy Brief: Imposing Numeric Quotas on Judges Threatens the Independence and Integrity of Courts, Oct. 12, 2017.
12 House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies (116th Congress), Executive Office for Immigration Review, Mar. 7, 2019.
13 In fact, Congress “specifically exempted ALJs from individual performance evaluations as a mechanism to ensure their independence from such measures and protect the integrity of their decisions.”
See NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
14 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges, Oct. 2017.
15 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
16 8 U.S.C. §1362 (West 2018).
17 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016.
18 Id.
19 AILA and the American Immigration Council, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018.
20 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
21 Human Rights First, Immigration Court Appearance Rates, Feb. 9, 2018.
22 Retired Immigration Judge Paul W. Schmidt, Immigration Courts: Reclaiming the Vision, May 2017.
23 The American Immigration Council, Legal Orientation Program Overview, Sept. 2018.
24 DOJ, Cost Savings Analysis – The EOIR Legal Orientation Program, Apr. 4, 2012.
25 The Wayback Machine, EOIR Legal Orientation Program, as of Dec. 24, 2017.
26 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
27 Maria Sacchetti, The Washington Post, Justice Dept. to halt legal advice-program for immigrants in detention, Apr. 10, 2018; The Wayback Machine, EOIR Legal Orientation Program, as of May 5, 2018.
28 U.S. Department of Justice, Opening Statement of Attorney General Jeff Sessions Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Apr. 25, 2018. See also Vera Institute of Justice, Statement on DOJ Analysis of Legal Orientation Program, Sept. 5, 2018.
29 See Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016; See also GAO Report, Asylum Variation Exists in Outcomes of Applications Across Immigration Courts and Judges, Nov. 16, 2016, “For fiscal years 1995 through 2014, EOIR data indicate that affirmative and defensive asylum grant rates varied over time and across immigration courts, applicants’ country of nationality, and individual immigration judges within courts.”
30 AILA Statement, Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration Hearing on “Strengthening and Reforming America’s Immigration Court System,” Apr. 18, 2018.
31 AILA Comments, ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Comments to ACUS, Responds to Taking Steps to Enhance Quality and Timeliness in Immigration Removal Adjudication, Feb. 17, 2012. 32 Ingrid Eagly, Northwestern Law Review, Remote Adjudication in Immigration, 2015.
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33 Booz Allen Hamilton Report on Immigration Courts. In June of 2017, the GAO issued a report raising concerns that, “EOIR has not adopted the best practice of ensuring that its VTC program is outcome-neutral because it has not evaluated what, if any, effects VTC has on case outcomes.”
34 Booz Allen Hamilton Report on Immigration Courts.
35 Booz Allen Report on Immigration Courts; Tom Hals, Reuters, Groups sue U.S. to stop deportation hearings by videoconference in New York, Feb. 13, 2019; Kelan Lyons, Salt Lake City Weekly, Technical Difficulties, Oct. 10, 2018; Beth Fertig, WNYC, Do Immigrants Get a Fair Day in Court When It’s by Video? Sept. 11, 2018.
36 EOIR, Myths vs Facts About Immigration Proceedings, May 8, 2019; NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019.
37 U.S. Department of Justice, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017. See also Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
38 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
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*****************************************

Seems like there is more than enough here for Congress to request that the DOJ Inspector General institute an investigation into ethical abuses and gross mismanagement by McHenry and other EOIR officials who are not only failing to fairly, impartially, and efficiently administer the Immigration Court system, but are also using Government time and resources to spread demonstrable lies and a nativist political propaganda. They also are using these knowingly false narratives to “shift blame” for their mismanagement to the victims: asylum applicants, their attorneys, and NGOs.

BTW, what exactly do the Chief Immigration Judge and the Chairman of the BIA do these days? These supposedly high level (and well-compensated) EOIR Senior Executives responsible for insuring judicial independence and fundamental fairness apparently have disappeared from public view. Have they been reduced to “hall walker” status in the finest tradition of the DOJ (under all Administrations) of “exiling” senior career officials who “don’t fit with the Administration’s political program? ” Perhaps the IG should also check into this.

In any event, the amount of corruption and “malicious incompetence” in EOIR management should make an independent Article I U.S. Immigration Court a legislative imperative!

PWS

05-16-19

THE ASYLUMIST WEIGHS IN ON EOIR’S “FACT SHEET:” “Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun?”

http://www.asylumist.com/2019/05/15/the-myths-and-facts-that-eoir-does-not-want-you-to-see/

Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.

I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.

EOIR has released a new “Myths vs. Facts” brochure.

This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:

Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more.
Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.

Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream.
Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.

Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS.
Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!

Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget.
Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.

Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration.
Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…

So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?

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

Jason is absolutely correct. Truth eventually will win out.

But, some have already died or been irreparably harmed, and other migrants will be needlessly sacrificed on the alter of nativist White Nationalism before this corrupt Administration eventually is removed.

We have already diminished ourselves as a nation. Will we ever recover? Will those responsible at EOIR, DOJ, DHS, Congress, the Article III Courts, and elsewhere ever be held fully accountable for their lies and corrupt roles in trashing human rights and our Constitution?

PWS

05-17-19

NY TIMES: Trump Mocks & Dehumanizes Vulnerable Refugees & His Administration Claims It’s OK To Return Them to Honduras; BUT The Facts Say The Opposite: Honduras Is An Armed Conflict Zone Where Gangs Exercise Quasi-Governmental Control & Those Who Resist Are Severely Punished, Often Maimed, Tortured Or Killed!

https://www.nytimes.com/interactive/2019/05/04/world/americas/honduras-gang-violence.html?smid=nytcore-ios-share

Azam Ahmed Reports for the NY Times:

. . . .

Shootouts, armed raids and last-minute pleas to stop the bloodshed formed the central threads of their stories. MS-13 wanted the neighborhood to sell drugs. The other gangs wanted it to extort and steal. But the members of Casa Blanca had promised never to let their neighborhood fall prey to that again. And they would die for it, if they had to.

Almost no one was trying to stop the coming war — not the police, not the government, not even the young men themselves. The only person working to prevent it was a part-time pastor who had no church of his own and bounced around the neighborhood in a beat-up yellow hatchback, risking his life to calm the warring factions.

“I’m not in favor of any gang,” said the pastor, Daniel Pacheco, rushing to the Casa Blanca members after the shooting. “I’m in favor of life.”

The struggle to protect the neighborhood — roughly four blocks of single-story houses, overgrown lots and a few stores selling chips and soda — encapsulates the inescapable violence that entraps and expels millions of people across Latin America.

Since the turn of this century, more than 2.5 million people have been killed in the homicide crisis gripping Latin America and the Caribbean, according to the Igarapé Institute, a research group that tracks violence worldwide.

The region accounts for just 8 percent of the global population, yet 38 percent of the world’s murders. It has 17 of the 20 deadliest nations on earth.

And in just seven Latin American countries — Brazil, Colombia, Honduras, El Salvador, Guatemala, Mexico and Venezuela — violence has killed more people than the wars in Afghanistan, Iraq, Syria and Yemen combined.

Most of the world’s most dangerous
cities are in Latin America

Latin America

Africa

U.S.

Other

SAFER CITIES

MORE DANGEROUS

Cancún,

Mexico

Kingston,

Jamaica

San Pedro Sula,

Honduras

San Salvador

London

Los Angeles

Paris

Tokyo

Istanbul

Los Cabos,

Mexico

Tijuana,

Mexico

Bogotá,

Colombia

St. Louis

Moscow

New Orleans

6.2 global avg.

0

40

60

80

100

120

Average homicide rate per 100k people

By Allison McCann

Source: Igarapé Institute and the United Nations Office on Drugs and Crime. Cities include the 50 highest homicide rates in the world and a group of prominent others for comparison, all with populations of at least 250,000. Average homicide rates are from 2016-2018 or the latest data available.

The violence is all the more striking because the civil wars and military dictatorships that once seized Latin America have almost all ended — decades ago, in many cases. Most of the region has trudged, often very successfully, along the prescribed path to democracy. Yet the killings continue at a staggering rate.

They come in many forms: state-sanctioned deaths by overzealous armed forces; the murder of women in domestic disputes, a consequence of pervasive gender inequality; the ceaseless exchange of drugs and guns with the United States.

Underpinning nearly every killing is a climate of impunity that, in some countries, leaves more than 95 percent of homicides unsolved. And the state is a guarantor of the phenomenon — governments hollowed out by corruption are either incapable or unwilling to apply the rule of law, enabling criminal networks to dictate the lives of millions.

For the masses fleeing violence and poverty in Central America, the United States is both a cause and solution — the author of countless woes and a chance to escape them.

Frustrated with the stream of migrants treading north, President Trump has vowed to cut aid to the most violent Central American nations, threatening hundreds of millions of dollars meant to address the roots of the exodus.

But the surviving members of Casa Blanca, who once numbered in the dozens, do not want to flee, like tens of thousands of their countrymen have. They say they have jobs to keep, children to feed, families, neighbors and loved ones to protect.

“There is only one way for this to end,” said Reinaldo. “Either they kill us or we kill them.”

. . . .

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

For the full version of Azam’s report and a much better chart graphic, go to the above link!

Trump’s complete lack of humanity, empathy, and his constant racist-inspired lies and misrepresentations about refugees and asylum seekers are truly reprehensible.

But, he and his henchmen like Stephen Miller are by no means the entire problem.

Every day in U.S. Immigration Court, DHS attorneys make demonstrably false representations minimizing the truly horrible conditions in the Northern Triangle, particularly for women. Every day, some U.S. Immigration Judges betray their oaths of office by accepting those false representations and using them, along with an unfairly skewed anti-asylum view of the law, to deny asylum cases that should be granted.

And, perhaps worst of all, every day some life-tenured Article III Circuit Judges turn a blind eye to the legal travesty and due process disaster taking place throughout our corrupted Immigration Courts by rubber stamping results that would be totally unacceptable in any other type of litigation and which don’t even pass the “straight face test.” I guess “out of sight is out of mind,” and the wrongfully deported are “out of sight” (or maybe dead, in hiding, or duressed into joining or cooperating with gangs after the U.S. failed to protect them)

But, there are folks our there resisting this malfeasance and dereliction of duty. Among other things, they are memorializing what is happening and making a record of where the “modern day Jim Crows” and their enablers stand and what they have done to their fellow human beings in the name of “expedience” and an “Alfred E. Neuman (“What Me Worry”)” view of the law and our legal system.

Donald Trump is horrible. But, his racism and infliction of lasting damage on our country and on humanity depend on too many judges and other supposedly responsible public officials supporting, acquiescing, enabling, or minimizing his inhumane, dishonest, counterproductive, and often illegal actions.

An appropriate response by an honest, competent Administration with integrity would be:

Establish legal precedents recognizing those fleeing politicized gang violence, domestic violence, and violence directed at famnilies as refugees;
Establish precedents incorporating the Article III decisions emphasizing the concept of “mixed motive” in determining “nexus” under asylum and withholding of removal laws;
Establish precedents granting temporary withholding of removal under the Convention Against Torture (“CAT”) to those who face torture at the hands of the gangs or Northern Triangle governments (or both), but who can’t establish the convoluted “nexus” for asylum, with a rebuttable presumption that the countries of the Northern Triangle will “acquiesce” in the torture;
Liberally use Temporary Protected Status (“TPS”) for nationals from Northern Triangle countries which perhaps would make large-scale asylum adjudication less of a priority and allow most cases to be dealt with in due course through the Asylum Offices rather than clogging Immigration Court dockets;
Work to insure that applicants for protection have assistance of counsel in developing and presenting their claims (which would also dramatically increase fairness and efficiency).

PWS

05-05-19

WASHINGTON POST/ABC POLL: TRUMP’S “CRUEL, MALICIOUS INCOMPETENCE” APPROACH TO ASYLUM HIGHLY UNPOPULAR & INEFFECTIVE: Dems Can Build Support By Strengthening Current Asylum System & Making It Work! — The “Real Face” Of “Border Security” Has Little Or Nothing To Do With Trump’s White Nationalist Rants & Barrage Of Lies!

https://www.washingtonpost.com/politics/2019/04/30/trumps-asylum-changes-are-even-less-desired-than-his-border-wall/

Aaron’s Blake reports for the Washington Post:

President Trump has made immigration crackdown a central focus of his presidency, and a new Washington Post-ABC News poll shows a growing number of Republicans and Democrats agree that the worsening situation on the border is a “crisis.”

But Trump is offering a solution that relatively few Americans like. In fact, his newly announced decision to make it harder to seek asylum is even less popular than his border wall national emergency, according to the same poll.

The Post-ABC poll shows that 30 percent of Americans favor making it more difficult for those seeking asylum in the United States to obtain it. About as many — 27 percent — favor making it easier, while 34 percent want to leave the process as-is.

Even among Republicans, just 46 percent favor making it more difficult. Among the few groups where a majority support the idea are conservative Republicans (51 percent) and those who approve of Trump (53 percent). Even in the latter group, though, 29 percent say leave the system as-is, and 11 percent want to make it easier to seek asylum.

Late Monday, the White House announced that it was proposing a new fee for asylum seekers. It is also seeking to prevent those who cross the border illegally from obtaining work permits, and it set the ambitious goal of requiring asylum cases to be decided within 180 days.

The fee would put the United States out of step with most of the world, as the vast majority of countries do not require asylum seekers to pay any fee. Given the dire circumstances many asylum seekers come from, including economically, critics worry the fee would prove a barrier to those with legitimate claims.

There has been a huge uptick in the number of asylum seekers in recent months. More than 103,000 immigrants crossed the U.S.-Mexico border last month, and 60 percent of them were Central American families who have requested asylum. The system has become overburdened, and even critics of Trump’s immigration approach acknowledge the situation must be addressed.

[The surge in migrants seeking asylum, explained]

But saying there’s a problem and saying this is the solution are two different things. Trump has repeatedly argued that asylum seekers are exploiting weak U.S. immigration and asylum laws and that many of them are criminals and gang members who are told to claim asylum even though they don’t need it. He has called the concept of asylum “a big con job.” Yet, even as the situation at the border is exacerbated by a growing number of asylum seekers, Americans are still clearly uncomfortable with increasing the burdens on them.

The proposed changes will likely take some time to implement, if they ever are. Attorney General William P. Barr has 90 days to come up with a plan, and the move will undoubtedly be challenged in court.

Because the poll was conducted before Trump’s announcement, it didn’t test the specific details of his proposal. A fresh debate about the specific proposals could feasibly change the levels of public support. But Trump has been pushing the idea that asylum seekers are exploiting the system for months, and it doesn’t seem to have led to a chorus of support within his base for tightening the rules.

The level of support is even less than the backing for his national emergency to build a border wall. The Post-ABC poll shows just 34 percent of Americans favor that, while 64 percent oppose it. But at least on that proposal, Trump’s base is strongly onboard. Seventy percent of Republicans back the border wall national emergency.

Trump’s overall approval on immigration stands at 39 percent, with 57 percent disapproving, according to The Post-ABC poll.

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

Bottom line: On asylum, the public essentially is split in thirds among 1) more generous; 2) less generous; and 3) current system. That means that neither radical retractions nor radical expansions of the current system are likely to be achievable at present. That opens the door for the Dems to put together a powerful coalition to strengthen and fairly and efficiently administer the current asylum system.

It’s not rocket science — more like basic governing competence. Here are the elements:

Establish an independent Article I U.S. Immigration Court;
Invest in representation of asylum seekers;
Add more Asylum Officers, Immigration Judges, and Port of Entry Inspectors;
Provide comprehensive basic and continuing training for all asylum adjudicators from experts in asylum law;
Use prosecutorial discretion (“PD”) to reduce Immigration Court backlogs to allow Immigration Judges to concentrate on timely hearings for recently arrived asylum cases;
Reduce immigration detention;
Hire more anti-smuggling, undercover, and anti-fraud agents for DHS;
Invest in improving conditions in “sending” countries in Central America.

It would 1) cost less than the money Trump is now squandering on “designed to fail” enforcement and detention efforts; 2) create a political constituency for funding and future improvements; 3) protect human rights; and 4) give the U.S the substantial benefits of integrating asylees and their talents into our society and economy through the legal system. Those found ineligible could also be removed in a humane and timely manner after receiving due process.

Not surprisingly, we just learned today that Trump’s “Malicious Incompetence Program” at the border has run out of money and is requesting another $4.5 billion from Congress. https://www.washingtonpost.com/business/economy/white-house-asks-congress-for-45-billion-in-emergency-spending-for-border/2019/05/01/725e2864-6c23-11e9-8f44-e8d8bb1df986_story.html

Now is the time for House Dems to hang tough on demanding some real border security for the money — in plain terms, require the money to be spent in exactly the ways described above, not on more of Stephen Miller’s White Nationalist, anti-asylum schemes and gimmicks.

Additionally, there should be specific prohibitions on: 1) wall and barrier building beyond what Congress has already authorized; 2) any additional spending for detention of non-criminal asylum applicants beyond the time needed to give them credible fear interviews; 3) family detention; 4) “tent cities;’ 5) “Remain in Mexico,” 6) “metering” of asylum applicants at Ports of Entry; 6) charging fees for asylum applications; 7) denial of work authorization for non-frivolous asylum applicants; 8) denial of reasonable bond to asylum applicants unless individually determined to be “threats to the community;” and 9) use of the military except to assist in providing humanitarian aid. There should also be a specific mechanism for accounting and constant Congressional oversight on how the Administration spends the extra funding.

PWS

05-01-19

TRUMP’S LATEST ATTACK ON ASYLUM PROMISES MORE “MALICIOUS INCOMPETENCE” — Doubles Down On “Proven Failures” As New Poll Shows Americans Reject Harsher Approach To Asylum Law By 2-1 Margin!

https://www.huffpost.com/entry/trump-asylum-memo_n_5cc7c8f5e4b07c9a4ce82527

Dominique Mosbergen reports for HuffPost:

Declaring the U.S. asylum system to be “in crisis,” President Donald Trump directed immigration officials on Monday night to introduce a slew of tough new rules for migrants seeking humanitarian protection in the United States.

The measures, outlined in a presidential memorandum, include the introduction of a fee for asylum applications and banning asylum seekers who’ve entered the U.S. illegally from receiving work permits. The memo also calls for the adjudication of asylum applications within 180 days.

The new rules, Trump said, are aimed at safeguarding “our system against rampant abuse of our asylum process.”

. . . .

It currently costs nothing for someone to file for asylum in the United States and immigration experts have warned that even a small fee could prove to be an impossible burden for some migrants seeking refuge. As The Washington Post noted, a vast majority of countries do not impose a fee on asylum claims.

“The majority of people coming to the United States seeking asylum are coming with little more than the shirts on their back,” Victoria Neilson, a former official at U.S. Citizenship and Immigration Services, told Reuters.

Trump, who’s repeatedly lambasted migrants for exploiting what he says are legal loopholes in the asylum system, also ordered asylum seekers who’ve entered the country illegally to be banned from obtaining work authorization “before any applicable application for relief or protection from removal has been granted.” Currently, asylum seekers who’ve entered the U.S. both legally and illegally are allowed to work while their claims are pending.

“There’s a reason that we give people work permits while they are waiting for asylum, so that they can support themselves and don’t have to be depending on government assistance during that time,” Michelle Brané of the Women’s Refugee Commission told The New York Times.

. . . .

The memo also demands that all asylum applications, save for those involving “exceptional circumstances,” are adjudicated in immigration court within 180 days of filing.

As the Post noted, U.S. law already dictates that asylum cases are adjudicated within that time ― but due to an overwhelming number of cases and inadequate resources, asylum seekers can often wait years before their claims are processed.

“The provision to process cases in 180 days has been on the books for over two decades,” Ashley Tabaddor, president of the immigration judges’ union, told the paper. “The problem is that we have never been given adequate resources to adjudicate those claims in a timely fashion.”

Trump has directed Attorney General William Barr and Acting Homeland Security Secretary Kevin McAleenan to introduce the new asylum regulations within 90 days. Immigration advocates, however, are expected to challenge the measures in court.

The administration is already involved in several court battles over earlier changes to U.S. asylum rules, including the so-called “remain in Mexico” policy requiring some asylum seekers to return to Mexico to await court hearings.

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

QUICK TAKES:

Regulatory Incompetence. Changing legal regulations requires 1) notice and an opportunity for public comment; and 2) a rational legal explanation for the proposed changes. So far, the Trump Administration has shown little ability for either. Indeed both their “preferred method” of policy change by “Executive Action” (e.g., DACA) and past attempts to change regulations (e.g., barring asylum for illegal entrants) have often ended up blocked or modified by the courts.
Time Limits Don’t Work. The current law, INA s. 208(d)(5)(A)(iii), already provides a statutory 180 day limit for asylum adjudications. But it has never been achievable in practice for various reasons including due process, chronic understaffing of Immigration Courts, and unavailability of private counsel. It might be possible to develop a system that could fairly process the vast majority of asylum claims through the Immigration Judge level within 180 days. But, that would require three things that an Administration committed to “malicious incompetence” has rejected: 1) clearing most of the 1.3 million backlogged cases off Immigration Court dockets through aggressive use of “prosecutorial discretion” (“PD”) as a first step toward a much-needed legalization program; 2) working cooperatively with NGOs, states, and municipalities to provide universal representation of asylum seekers; and 3) granting many more asylum cases at the Asylum Office and Immigration Court level.
The Administration Doesn’t Control Article III Courts (Yet). As the Immigration Courts and the BIA become more biased against asylum seekers, more individuals will seek review by the Article III Courts. The number of cases in the Article IIIs, who operate largely beyond the Administration’s control, is likely to grow exponentially. “Fake timetables” (on top of the mindless “deportation quotas” already in effect for Immigration “Judges”) result in “haste makes waste” poor quality at EOIR that, in turn, leads to lots of remands from the Article IIIs, thereby further clogging the Administrative system.
“Asylum Only” Hearings Aren’t Substantively Different From “Full” Removal Hearings. Trump reportedly would like to limit asylum seekers to “Asylum Only” hearings where asylum, withholding of removal, and relief under the Convention Against Torture are the only forms of relief available. But, few recently arrived asylum seekers apply for other forms of relief “right off the bat.” The major difference is often eligibility for bond in a “full removal hearing.” But, AG Barr has already acted to make most who pass “credible fear” ineligible for bond in his recent precedent Matter of M-S-, overruling 15 years of contrary BIA law originating in the Bush II Administration. The due process limitations on indefinite detention of asylum seekers will be fought out in the Article IIIs regardless of whether the Administration uses “Asylum Only Proceedings” or “Full Removal Proceedings.” And, so far, the Administration has consistently lost on the Constitutional issue in the lower Federal Courts.
Article IIIs Have Already Slammed This Administration’s Prior Attempts To Illegally Misconstrue Asylum Law To Reduce The Number Of Positive “Credible Fear” Determinations. Sessions & Nielsen already unsuccessfully tried to game the credible fear system against legitimate asylum seekers. They were strongly rebuked by U,S. District Judge Emmet Sullivan (DC) in Grace v. Whitaker. Judge Sullivan barred Immigration Judges from using most of Session’s erroneous Matter of A-B- precedent in “credible fear reviews.” He also required USCIS to rewrite its “Credible Fear” instructions to restore the generous intent of the law. It’s likely that what Trump is seeking to do will run afoul of Judge Sullivan’s order. Sullivan isn’t afraid to hold Cabinet officials accountable. So, while Trump himself might be beyond the court’s reach, “Trump‘s Chumps” McAleenan and Barr might want to have their jail bags packed and check their personal liability insurance before accepting Trump’s invitation to violate the law. Also, the Administration’s actual and threatened misuse of “expedited removal” in an attempt to implement a “lawless credible fear” policy has inspired the Ninth Circuit to recognize a right to appeal to the Article IIIs, even in expedited removal. THURAISSIGIAM v. USDHS, https://immigrationcourtside.com/2019/03/07/9th-cir-says-statute-barring-meaningful-judicial-review-of-expedited-removal-process-violates-constitutions-suspension-clause-throws-monkey-wrench-into-administra/ In other words, the field that Trump is mindlessly ordering McAleenan and Barr to plow has already been largely ruled “off limits” by the Article IIIs.
While Imposing Fees For Asylum Applications Is Undoubtedly Cruel, Unnecessary, & Unprecedented, It Won’t Be A Long-Term Deterrent. By misusing “metering” to make it difficult or impossible to apply for asylum at legal ports of entry the Administration already has increased smuggling fees, made routes more dangerous for asylum seekers, and predictably increased the number of illegal entries to apply for asylum; but, it hasn’t “deterred” asylum seekers. It just shifted the traffic from legal ports of entry where it could have been more easily controlled to other places on the border, where it’s harder to control. Stupid? Yeah, of course. Basically, the Trump Administration now wants to get in on the financial bonanza it has created for human smugglers by charging its own version of illicit fees. While cruel and punitive, it’s unlikely to have much impact on the flow of refugees.
Denial Of Work Authorization Will Create Hardship, Without Deterrence, & Actually Hurt Our Economy. Under current law, asylum seekers can’t get work authorization for at least 180 days. If the Administration really were able to fairly process asylum applications in that period, there actually wouldn’t be much need for work authorization. Also, work authorization doesn’t apply to those detained for asylum hearings and most juveniles. Assuming that legitimate asylum applicants continue to get released and shunted into the backlogged Immigration Court system, denial of work authorization will deprive them of the opportunity to use their (usually ample) skills to be self-supporting and contribute to our economy, regardless of whether they ultimately are granted asylum. Many such folks will now be forced into the “underground economy” where they are more likely to be both underemployed and exploited by unscrupulous employers. Trump is turning a “win-win” into a “lose-lose.” But, it’s unlikely to deter those fleeing for their lives.
Eventually, Trump’s “Malicious Incompetence Approach” Might Convince Asylum Seekers That Our Legal System Is A Cruel Farce That Must Be Avoided. Smugglers will simply take refugees into the interior of the U.S. for higher fees. They will stop turning themselves in to use a bogus legal system. Some will die; a few will get caught and removed; but, the chances of entering illegally and losing oneself in the U.S. for as long as one wants are probably much better than the chances of getting legal asylum in Trump’s increasingly bogus, biased, and dishonest system.
Two Things Are For Certain: 1) Desperate People Will Continue To Come No Matter What Trump Does On This End; and 2) Once Trump Destroys The Legal Asylum & Immigration Systems, They Won’t Easily Be Rebuilt. The result will be a permanent “immigration underground/black market.” That’s a “lose-lose” that will be horrible for migrants, but even worse for America’s future.

Coming up: A New Washington Post/ABC Poll Shows Little Public Support For Trump’s Harsher Asylum Policies.

PWS

04-30-19

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