TAL @ SF CHRON TAKES US INSIDE EOIR’S LATEST ASSAULT ON DUE PROCESS: Lack Of Live Interpretation Causing Confusion, Delays, Misinformation, & Denials Of Fundamental Fairness In U.S. Immigration Courts — Bogus “Court” System Continues To Make Major Changes Diminishing Due Process Without Consulting Judges, Attorneys, Or The Affected Individuals!

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

Tal Kopan reports for the SF Chron:

https://www.sfchronicle.com/politics/article/Confusion-delays-as-videos-replace-interpreters-14414627.php

Confusion, delays as videos replace interpreters at immigrants’ hearings

By Tal Kopan

WASHINGTON — The Trump administration has been slow to implement its new policy replacing in-person interpreters with informational videos at immigrants’ initial hearings, but the switch is causing delays and confusion where it has been introduced, including in San Francisco, observers say.

The Justice Department informed immigration judges in late June that it would replace in-person interpreters at the first court appearance for immigrants facing deportation with videos advising them of their rights. The switchover began in July.

So far, the policy has been rolled out to courts in just four cities: San Francisco, Los Angeles, Miami and New York.

It’s not clear when the policy will expand. A spokesman for the Justice Department division that oversees the courts said the agency “is taking into consideration all feedback before additional translation videos are created and the program is rolled out to further immigration courts.”

Judges and attorneys observing the courts say the change has mostly served to delay proceedings, by adding lengthy steps and information that is not necessary for all migrants to hear.

After the videos are shown, each immigrant is called up for his or her individual hearing and may have questions for the judge. Although judges are now barred from scheduling in-person interpreters for the hearings, at times interpreters can be found on short notice in the courthouses. When none is available, judges must try a telephone service to reach an interpreter.

At issue are what are called master calendar hearings — immigrants’ first appearance in courts that determine whether they can remain in the U.S. The typically rapid-fire sessions serve to inform migrants of their rights and the process they will go through. Judges also schedule their next hearings.

Many immigrants in the system are Spanish speakers, but it’s also common for Chinese, Creole, and several indigenous languages from Central America and around the world to be spoken in courtrooms.

Judges in courts that have made the change are required to play either a Spanish-dubbed or English-language video for immigrants who do not have attorneys representing them. The 20-minute video runs through a lengthy list of technical legal advisories. Videos in other languages are not yet available, but the Justice Department has plans to introduce them.

Most of the dozens of immigrants going through their initial hearings Tuesday in San Francisco were shown the video. Many of them had attorneys present who translated, and others were able to use a Spanish-speaking interpreter who was on hand. Languages spoken in court included Spanish, Punjabi, Hindi, Mandarin and Fijian.

One hearing in the courtroom of Judge Arwen Swink involved a Mongolian woman who needed translation. After about five minutes, Swink was able to secure an interpreter in her language through the telephone service Lionbridge.

Swink asked the interpreter to introduce himself to the woman, who did not have an attorney, to ensure that she understood him. The interpreter said he had trouble hearing, but court staffers brought the microphone closer to the woman and the session was able to proceed.

With an interpreter in the room, such a hearing can take five minutes or less. The woman’s case took 15 minutes.

The Chronicle has obtained transcripts of the separate videos that are played for immigrants who are in detention and not in detention, as well as an FAQ handout they receive.

Roughly a fifth of the videos are devoted to a discussion of “voluntary departure,” under which immigrants can go back to their home country without being penalized if they try to come back someday. The videos also warn immigrants of the criminal consequences of trying to re-enter the country illegally after being deported.

Legal experts and veteran immigration judges say neither topic was commonly brought up in initial hearings before the videos were introduced because they are most relevant at the end of cases, if migrants do not prevail in their bid to remain in the U.S. Several said they feared the emphasis on voluntary departures and criminal penalties could prompt immigrants with valid claims to stay in the U.S. to waive their right without fully understanding what they’re doing.

The Justice Department did not consult with the union that represents immigration judges before making the change, and has proceeded despite ongoing bargaining with the group. The result is “lots of confusion, constantly changing parameters of the program by the agency and frustration among many judges,” said Ashley Tabaddor, president of the National Association of Immigration Judges and an immigration judge in Los Angeles.

Tabaddor added that courts in New York and Miami have had trouble securing help by phone, and that cases have been delayed in the Los Angeles court because of shortages of interpreters.

Amiena Khan, the union’s executive vice president and a judge in New York, said the videos make for a “really long day” for unrepresented immigrants who have to wait through proceedings for all migrants who have attorneys before watching a 20-minute video. She finds herself repeating or adding key advisories when immigrants are called before her.

“There was no problem that needed to be solved by the introduction of the video,” Khan said. “What I think really bothers me is that it’s mandatory. I think if it was discretionary as a tool for the judge to use, it could be helpful. (But) it takes away our judicial independence as to what method to employ to best get through the day’s docket.”

Khan and former immigration Judge Jeffrey Chase, who reviewed the transcripts, also noted that the videos do not include information that would be important for immigrants, including that they have only one year to formally apply for asylum in the U.S.

“The information provided is misleading in a way that can lead to a noncitizen’s removal,” said Chase, who now volunteers for organizations that provide legal assistance to immigrants.

Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, said the transcripts show that the videos use “scare tactics” instead of informing immigrants of their rights. The videos warn immigrants against filing frivolous asylum claims, but don’t explain what asylum is, she noted.

“The videos provide an overwhelming amount of information that no one can easily digest in one setting,” Lynch said. “What’s more disturbing is that the content itself only tells one side of the story.”

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Click on the link for Tal’s full story with links to actual transcripts of this “parody of justice.”

This is DOJ/EOIR’s “malicious incompetence” in action. Accurate interpretation is essential to Due Process and fundamental fairness as well as the hallmark of a competently and professionally run court system. Somewhere along the line, the money for interpreters was frittered away by what passes for “management” at DOJ/EOIR. And, let’s not even think about the waste of money on absurd “Immigration Judge Dashboards” while the two decades old overwhelming need for a functional nationwide e-filing system goes unmet.

Right now, Congress is paralyzed. When are the Article III Courts going to wake up, get some backbone, and enforce the U.S. Constitution by putting an end to this so-called “court system” run by prosecutors that provides not even a semblance of fair and impartial (and at least minimally competent) adjudication? No more “Clown Court!”🤡

PWS

09-05-19

IN MEMORIAM: JUSTICE JOHN PAUL STEVENS (1920-2019), AMERICAN HERO WHO LEAVES A LEGACY OF KINDNESS & COMMON SENSE — Authored One Of The Greatest Supreme Court Decisions, INS v. Cardoza-Fonseca!

https://www.law.com/nationallawjournal/2019/07/16/justice-john-paul-stevens-who-left-us-a-better-nation-dies-at-99/

Justice John Paul Stevens
Justice John Paul Stevens
1920-2019
Author of INS v. Cardoza-Fonseca
Marcia Coyle
Marcia Coyle
Supreme Court Reporter
National Law Journal

Marcia Coyle writes in the National Law Journal:

Justice John Paul Stevens, whose decisions during almost 35 years on the U.S. Supreme Court triggered a revolution in criminal sentencing and curbed government overreach in the war on terror, died on Tuesday evening at Holy Cross Hospital in Fort Lauderdale, Florida. He was 99.

Stevens died of complications following a stroke that he suffered on July 15, according to a statement from the Supreme Court’s public information office. His daughters were by his side.

Chief Justice John G. Roberts Jr. said of Stevens:

“On behalf of the court and retired Justices, I am saddened to report that our colleague Justice John Paul Stevens has passed away. A son of the Midwest heartland and a veteran of World War II, Justice Stevens devoted his long life to public service, including 35 years on the Supreme Court. He brought to our bench an inimitable blend of kindness, humility, wisdom, and independence. His unrelenting commitment to justice has left us a better nation. We extend our deepest condolences to his children Elizabeth and Susan, and to his extended family.”

Shortly after retiring from the high court in June 2010, Stevens, described by one legal scholar as “one of the most articulate, disciplined and accomplished” justices in U.S. history, “made clear that he still had a “lot to say.”

Over the next nearly 10 years, the indefatigable nonagenarian wrote three books and gave numerous speeches around the country in which he critiqued past and current Supreme Court decisions.

In “Five Chiefs: A Supreme Court Memoir,” he chronicled his experiences with chief justices from his time as a Supreme Court clerk in 1947 until his retirement as an associate justice. His favorite chief, he later said, was the current one—Chief Justice John Roberts Jr.

And in “Six Amendments: How and Why We Should Change the Constitution,” he proposed ways to change the founding document because “rules crafted by a slim majority of the members of the Supreme Court have had such a profound and unfortunate impact on our basic law that resort to the process of amendment is warranted.”

His proposed amendments would, among other tasks, hasten the demise of the death penalty—a punishment he supported early in his career but later found costly and ineffective; prohibit partisan gerrymanders; return the Second Amendment to its original meaning, in his view, as a collective militia right, not an individual right; and reverse the deregulation of money in elections achieved most prominently by the high court’s ruling in Citizens United v. Federal Election Commission.

His final book was: “The Making of a Justice: Reflections on My First 94 Years.”

An Unlikely “Revolutionary”

With his trademark bow-tie, mild manner and unfailingly polite questions on the bench, Stevens was an unlikely “revolutionary” in any area of the law.

Born April 20, 1920, in Chicago, Stevens was the youngest of four boys in a wealthy family headed by his father, Ernest Stevens. In 1927, his father built the Stevens Hotel in Chicago, now the Hilton Chicago, which at the time was one of the largest and finest hotels in the world.

A “very happy childhood,” according to Stevens, was disrupted when in 1934 the hotel went bankrupt and Stevens’ father, grandfather and uncle were indicted for diverting funds from the life insurance company that his grandfather had founded in order to make bond payments on the hotel. His father was convicted of embezzling $1.3 million. But, in that same year, the state Supreme Court overturned the conviction, holding there was “not a scintilla” of evidence of any fraud.

The experience had a profound effect on him, Stevens later said. Some legal scholars trace to that experience the deep sense of fairness and commitment to due process in the criminal justice system that marked his judicial career.

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After graduating from the University of Chicago, Stevens enlisted as an intelligence officer in the U.S. Navy, specializing in cryptology. His enlistment date was Dec. 6, 1941—the day before Pearl Harbor was attacked by the Japanese. Following his discharge in 1945, he enrolled in Northwestern University School of Law and graduated in two years after matriculating through regular and summer sessions.

Shortly before graduating, Stevens and his close friend, Art Seder, were informed by the dean of a possible clerkship with Justice Wiley Rutledge. The dean told the two men to decide who should be recommended. Stevens and Seder flipped a coin—and Stevens won.

Stevens’ clerkship with Rutledge was one of two factors that contributed to Stevens’ subsequent importance in the war on terror cases, Craig Green of Temple University School of Law told The National Law Journal in 2010. Stevens helped Rutledge write the dissent in Ahrens v. Clark in which Rutledge roundly criticized the majority for denying due process to German Americans detained during World War II.

“Rutledge was one of the crucial justices in the last round of really important war power decisions in World War II,” explained Green. “He was very strong on civil liberties. Those issues had a lot more prominence for Stevens than they might have had for another person.”

In Rumsfeld v. Padilla, the 2004 case involving U.S. citizen Jose Padilla, who was detained as an “unlawful combatant,” Stevens set out the foundation for his later opinions in a Rutledge-like dissent chastising his colleagues for dismissing Padilla’s case on jurisdictional grounds.

“At stake in this case is nothing less than the essence of a free society,” Stevens wrote. “Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.

After his high court clerkship ended, Stevens went into private practice in Chicago and served briefly on the Republican staff of the House Judiciary Committee in Washington, D.C.

In 1969, he became counsel to a committee assigned to investigate corruption in the Illinois Supreme Court. The result of that work was the prosecution of two state justices for bribery and exposure of corruption throughout the judicial system. His efforts caught the attention of Sen. Charles Percy, R-Illinois, who recommended him for a seat on the U.S. Court of Appeals for the Seventh Circuit. President Richard Nixon nominated Stevens in 1970 and he was confirmed that year.

Stevens served five years on the appellate court where he was known as a moderate conservative judge. In 1975, President Gerald Ford nominated him to fill the Supreme Court seat previously held by Justice William Douglas. He was unanimously confirmed just 19 days later.

From Maverick to Court Leader

During his early years on the high court, Stevens was something of a maverick, often writing lone concurrences or dissents on seemingly tangential issues. But with the departure of Justice Harry Blackmun and liberal lion Justices William Brennan and Thurgood Marshall, Stevens assumed a new role as leader of the court’s left wing and the senior associate justice. He always considered himself a conservative, even when labeled the leader of the court’s “liberal block.”  He often said he never moved left; it was the court that had moved increasingly to the right.

His position as the court’s senior associate justice empowered him to assign majority opinions when he was in the majority and the chief justice was in dissent. When Stevens was in dissent, he also could assign the main dissent to himself or a colleague.

Stevens used the assignment power deftly, forging majorities in a number of significant cases, often with the helpful vote of Justice Anthony Kennedy. One of the areas in which he crafted landmark rulings was fallout from the war on terror.

“On terrorism, he has been not just the leading light on the left, but the master strategist,” said Stephen Vladeck of American University Washington College of Law at Stevens’ retirement in 2010. “For the most part, as Justice Stevens has gone, so has gone the court.”

Besides the Padilla opinion, Stevens wrote the majority opinion in Rasul v. Bush (2004) holding that federal courts have habeas corpus jurisdiction to consider challenges to the legality of the detention of foreign nationals held by the United States at the Guantanamo Bay Naval Base in Cuba. And, he led the majority in Hamdan v. Rumsfeld (2006), holding that military commissions set up by the Bush Administration exceeded the president’s authority and their structure and procedures violated the Uniform Code of Military Justice and the Geneva Conventions.