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Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!

LIFE AT EOIR – PAST, PRESENT, AND FUTURE

Paul Wickham Schmidt

Retired U.S. Immigration Judge

Keynote Address

2017 Immigration Law Conference

Denver, CO

May 12, 2017

INTRODUCTION

Good afternoon. Thank you so much for inviting me. It’s an honor to appear before you.

Funny thing happened to me on the way to this conference. When I arrived at the airport yesterday afternoon, my good friend Judge Lory Rosenberg rushed up to me at baggage claim and said “Oh, I see we’re having you for lunch!” I said “What?” She said “You’re our keynote speaker at lunch tomorrow.” I scoffed at the idea, saying I might be on the after lunch panel with her, but that was it. However, when I actually took the time to look at the program I saw that certainly not for the first time, Lory was right. Unbeknownst to me I was, in fact, listed as the keynote speaker.

I’ve composed this speech on my I-pad, which I’m using as a teleprompter. As you know, those of us who worked at EOIR aren’t used to this new-fangled technology. So, please bear with me.

As we get started, I’d like all of you to join me in recognizing my friend and former colleague Judge Larry Burman for his tireless efforts to make the ILS the best section in the FBA. In the later years, I tried very hard to avoid being at court at nights, weekends, and holidays. But, occasionally I had to go pick up my cellphone or something else I had inadvertently left in my office. And, who should be there but Larry. And he was always working on a FBA project, the Green Card, Conference Planning, recruiting new members, etc. So, please join me in a round of applause for Judge Burman for all he has done for promoting productive dialogue and improving the practice of immigration law.

Now, this is when I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that I’m retired, we can skip that part.

My speech is entitled: “Life At EOIR, Past Present, and Future.” I will start by introducing myself to you and telling you a bit about how my life and career have been intertwined with EOIR. Then I will briefly address five things: the court system’s vision, the judge’s role, my judicial philosophy, what needs to be done to reclaim the due process vision of the Immigration Courts, and how you can get involved.

CAREER SUMMARY

I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.

I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers!

I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice (“DOJ”) under the Attorney General’s Honors Program. Admittedly, however, the BIA’s Executive Assistant culled my resume from the “Honors Program reject pile.” One of my staff colleagues at that time, now retired U.S Immigration Judge Joan Churchill, is right here in the audience.

At that time, before the creation of the Executive Office for Immigration Review – “EOIR” for you Winnie the Pooh fans — the Board had only five members and nine staff attorneys, as compared to today’s cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit in an opinion by the late Chief Judge Irving Kaufman.^[1] As an interesting historical footnote, that case was argued in the Circuit by then Special Assistant U.S. Attorney Mary Maguire Dunne, who went on to become a distinguished Member of the BIA and one of my Vice Chairs during my tenure as Chairman.

I also shared an office with my good friend, the late Lauri Steven Filppu, who later became a Deputy Director of the Office of Immigration Litigation (“OIL”) in the DOJ’s Civil Division and subsequently served with me on the BIA. The Chairman of the BIA at that time was the legendary “immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took Lauri and me under this wing and shared with us his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA.

In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a naturalized citizen who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts.

At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office! In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel. I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations.

Not long after I arrived, the General Counsel position became political. The incoming Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and colleague David Crosland, now an Immigration Judge in Baltimore, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel.

The third General Counsel that I served under was one of my most “unforgettable characters:” the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as “Iron Mike.” His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone. As my one of my colleagues said of “Iron Mike:” “He consistently and unreasonably demanded that we do the impossible, and most of the time we succeeded.” Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a “good cop, bad cop” routine, and I’ll let you guess who played which role. You can check the “Inman era” out with retired Immigration Judge William P. Joyce, who is sitting in the audience and shared the experience with me.

Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).

I also worked on the creation of EOIR, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division. I find it troubling that officials at today’s DOJ aren’t able to understand and act appropriately on the glaring conflict of interest currently staring them in their collective faces.

By the time I left in 1987, the General Counsel’s Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.

In 1987, I left INS and joined Jones Day’s DC Office, a job that I got largely because of my wife Cathy and her “old girl network.” I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA with which some of you might be familiar.

Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. You will note that immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (“AILA”) on a number of projects and was an adviser to the Lawyers’ Committee, now known as Human Rights First.

In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, Janet Reno, who recently died, was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didn’t always agree with our decisions and vice versa.

She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She was also kind to our clerical staff and invited them downtown to meet personally with her. She had a saying “equal justice for all” that she worked into almost all of her speeches, and which I found quite inspirational. She was also hands down the funniest former Attorney General to appear on “Saturday Night Live,” doing her famous “Janet Reno Dance Party” routine with Will Farrell immediately following the end of her lengthy tenure at the DOJ.

Among other things, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerk’s Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a “Plain Language Award” from then Vice President Gore.

I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is “persecution” for asylum purposes.^[2] As another historical footnote, the “losing” attorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous immigration professor at the University of Virginia Law who personally argued before the Board.

In reality, however, by nominally “losing” the case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga. Without David’s help, who knows if I would have been able to get an almost-united Board to make such a strong statement on protection of vulnerable women.

During my tenure as Chairman, then Chief Immigration Judge (now BIA Member) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees. Since my retirement, I have rejoined the IARLJ as a Vice President for the Americas.

In 2001, at the beginning of the Bush Administration, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, then Attorney General John Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30 of last year. So, I’m one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didn’t recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.

I have also taught Immigration Law at George Mason School of Law in 1989 and “Refugee Law and Policy” at Georgetown Law from 2012 through 2014. I’ve just agreed to resume my Adjunct position with Georgetown Law for a “compressed summer course” in “Immigration Law & Policy.”

Please keep in mind that if everyone agreed with me, my career wouldn’t have turned out the way it did. On the other hand, if nobody agreed with me, my career wouldn’t have turned out the way it did. In bureaucratic terms, I was a “survivor.” I have also, at some point in my career, probably been on both sides of many of the important issues in U.S. immigration law.

One of the challenges that lawyers will face in Immigration Court is that different judges have distinct styles, philosophies, and preferences. I always felt that although we might differ in personality and approach, at least in Arlington we all shared a commitment to achieving fairness and justice.

As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. In Arlington, for example, even with a new high of 10 Immigration Judges, the average docket is still 3,000 cases per judge. There currently are more than 30,000 pending cases at the Arlington Court. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical.

THE DUE PROCESS VISION

Now, let’s move on to the other topics: First, vision. The “EOIR Vision” is: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme.

Sadly, the Immigration Court System is moving further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now approaching an astounding 600,000 cases and no clear plan for resolving them in the foreseeable future. There are now more pending cases in Immigration Court than in the entire U.S. District Court System, including both Civil and Criminal dockets, with fewer than half as many U.S. Immigration Judges currently on board as U.S. District Judges.

And, the new Administration promises to add hundreds of thousands, if not millions, of new cases to the Immigration Court docket, again without any transparent plan for completing the half million already pending cases consistent with due process and fairness. In fact, notably, and most troubling, concern for fairness and due process in the immigration hearing process has not appeared anywhere in the Administration’s many pronouncements on immigration.

Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life or death issues at stake, unlike criminal court there is no right to an appointed lawyer. Individuals who can’t afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times!^[3]

You might have read about the unfortunate statement of an Assistant Chief Judge for Training who claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called “vulnerable populations” continue to challenge our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low cost lawyers available to handle the overwhelming need. In fact, soon to be former EOIR Director Juan Osuna once declared in an officially-sanctioned TV interview that the current system is “broken.”^[4]

Notwithstanding the admitted problems, I still believe in the EOIR vision. Later in this speech I’m going to share with you some of my ideas for reclaiming this noble due process vision.

THE ROLE OF THE IMMIGRATION JUDGE

Changing subjects, to the role of the Immigration Judge: What’s it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution. The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations.

We should all be concerned that the U.S. Immigration Court system is now totally under the control of Attorney General Jeff Sessions, who has consistently taken a negative view of immigrants, both legal and undocumented, and has failed to recognize the many essential, positive contributions that immigrants make to our country.

Perhaps ironically, the late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what it’s like to be an Immigration Judge. Judge Evans was not one of us, but saw plenty of our work during his lifetime. Judge Evans said:

“Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.”^[5]

My Arlington Immigration Court colleague Judge Thomas G. Snow also gives a very moving and accurate glimpse of an Immigration Judge’s life in a recent article from USA Today:

” Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.

We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times we’ve seen similar fact patterns before.

We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions

And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.^[6]

My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the President of the National Association of Immigration Judges, offers a somewhat pithier description: “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”^[7]

Another historical footnote: as a young lawyer, then known as Dana Marks Keener, Judge Marks successfully argued the landmark Supreme Court case INS v. Cardoza Fonseca, establishing the generous “well-founded fear” standard for asylum, while I helped the Solicitor General’s office develop the unsuccessful opposing arguments for INS.^[8] Therefore, I sometimes refer to Judge Marks as one of the “founding mothers” of U.S. asylum law.

From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is always on public display, particularly in this “age of the Internet.” His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the “performing artist” aspect, rather than from a lack of pertinent legal knowledge.

One of the keys to the Immigration Judge’s job is issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Court’s amazing Judicial Law Clerks (“JLCs”) assisted by all-star legal interns from local law schools. The JLC’s job is, of course, “to make the judge look smart,” no matter how difficult or challenging that might be in a particular case.

MY JUDICIAL PHILOSOPHY

Next, I’ll say a few words about my philosophy. In all aspects of my career, I have found five essential elements for success: fairness, scholarship, timeliness, respect, and teamwork.

Obviously, fairness to the parties is an essential element of judging. Scholarship in the law is what allows us to fairly apply the rules in particular cases. However, sometimes attempts to be fair or scholarly can be ineffective unless timely. In some cases, untimeliness can amount to unfairness no matter how smart or knowledgeable you are.

Respect for the parties, the public, colleagues, and appellate courts is absolutely necessary for our system to function. Finally, I view the whole judging process as a team exercise that involves a coordinated and cooperative effort among judges, respondents, counsel, interpreters, court clerks, security officers, administrators, law clerks and interns working behind the scenes, to get the job done correctly. Notwithstanding different roles, we all share a common interest in seeing that our justice system works.

Are the five elements that I just mentioned limited to Immigration Court? They are not only essential legal skills, they are also necessary life skills, whether you are running a courtroom, a law firm, a family, a PTA meeting, a book club, or a soccer team. As you might imagine, I am a huge fan of clinical experience as an essential part of the law school curriculum. Not only do clinical programs make important actual contributions to our justice system – due process in action – but they teach exactly the type of intellectual and practical values and skills that I have just described.

RECLAIMING THE VISION

Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed. What can be done to get it back on track?

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best.

Clearly, the due process focus was lost during the last Administration when officials outside EOIR forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases was not only unfair to all, but has created what I call “aimless docket reshuffling” — “ADR” — that has thrown the Immigration Court system into chaos and dramatically increased the backlogs.

Although those misguided Obama Administration priorities have been rescinded, the reprieve is only fleeting. The Trump Administration has announced plans to greatly expand the “priority” targets for removal to include even those who were merely accused of committing any crime. The Administration also plans a new and greatly expanded “immigration detention empire,” likely to be situated in remote locations near the Southern Border, relying largely on discredited private “for profit” prisons. The Administration also wants to make it more difficult for individuals to get full Immigration Court hearings on asylum claims and to expand the use of so-called “expedited removal,” thereby seeking to completely avoid the Immigration Court process.

Evidently, the idea, similar to that of the Obama Administration, is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers.

Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. The practice of having administrators in Falls Church and bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in a vain attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts must end.

If there are to be nationwide policies and practices, they should be developed by an “Immigration Judicial Conference,” patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary “consumers” of the court’s “product.”

Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Conference. Currently, the glacial hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system.

In particular, the judicial hiring process over the past 16 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds – particularly those with expertise in asylum and refugee law – have been so few and far between. Indeed, during the last Administration nearly 90% of the judicial appointments were from Government backgrounds. And, there is no reason to believe that pattern will change under the current Administration. In fact, only one of the seven most recent appointments by Attorney General’s Sessions came from a private sector background.

Fourth, I would repeal all of the so-called “Ashcroft reforms” at the BIA and put the BIA back on track to being a real appellate court. A properly comprised and well-functioning BIA should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate. All BIA Appellate Judges should be required to vote and take a public position on all important precedent decisions. The BIA must also “rein in” those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca^[9] and the BIA itself in Mogharrabi^[10] are not being followed.

Nearly a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.^[11] While there has been some improvement, the BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.

For example, let’s take a brief “asylum magical mystery tour” down the East Coast.^[12] In New York, 84% of the asylum applications are granted. Cross the Hudson River to Newark and that rate sinks to 48%, still respectable in light of the 47% national average but inexplicably 36% lower than New York. Move over to the Elizabeth Detention Center Court, where you might expect a further reduction, and the grant rate rises again to 59%. Get to Baltimore, and the grant rate drops to 43%. But, move down the BW Parkway a few miles to Arlington, still within the Fourth Circuit like Baltimore, and it rises again to 63%. Then, cross the border into North Carolina, still in the Fourth Circuit, and it drops remarkably to 13%. But, things could be worse. Travel a little further south to Atlanta and the grant rate bottoms out at an astounding 2%.

In other words, by lunchtime some days the Immigration Judges sitting in New York granted more than the five asylum cases granted in Atlanta during the entire Fiscal Year 2015! An 84% to 2% differential in fewer than 900 miles! Three other major non-detained Immigration Courts, Dallas, Houston, and Las Vegas, have asylum grants rates at or below 10%.

Indeed a recent 2017 study of the Atlanta Immigration Court by Emory Law and the Southern Poverty Law Center found:

[S]ome of the Immigration Judges do not respect rule of law principles and maintain practices that undermine the fair administration of justice. During the course of our observations, we witnessed the following [issue, among others]. Immigration Judges made prejudicial statements and expressed significant disinterest or even hostility towards respondents in their courts. In at least one instance, an Immigration Judge actively refused to listen to an attorney’s legal arguments. In another instance, an Immigration Judge failed to apply the correct standard of law in an asylum case. ^[13]

This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” These unusually low asylum grant rates are impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, and the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases.^[14] Yet, the BIA has only recently and fairly timidly addressed the manifest lack of respect for asylum seekers and failure to guarantee fairness and due process for such vulnerable individuals in some cases arising in Atlanta and other courts with unrealistically low grant rates.^[15]

Over the past 16 years, the BIA’s inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need a BIA which functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than an unfulfilled promise.

Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

GETTING INVOLVED

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former student, and those who have practiced before the Arlington Immigration Court.

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. Notwithstanding some recently publicized problems with policing the system, which I wrote about on my blog immigrationrcourtside.com, this is a critically important program for expanding representation in Immigration Courts. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, who are not lawyers to qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

Even if you are not practicing or do not intend to practice immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

Another critical area for focus is funding of nonprofit community-based organizations and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

But, many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, 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 being pursued by this Administration 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 American great and different from most of the rest of the world will go down with it.

CONCLUSION

In conclusion, I have introduced you to one of America’s largest and most important, yet least understood and appreciated, court systems: the United States Immigration Court. I have shared with you the Court’s noble due process vision and my view that it is not currently being fulfilled. I have also shared with you my ideas for effective court reform that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness’! Join the New Due Process Army! Due process forever!

Thanks again for inviting me and for listening. Have a great conference!

(05/12/17)

^[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).

^[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

^[3] TRAC Immigration, “Representation is Key in Immigration Proceedings Involving Women with Children,” Feb. 18, 2015, available online at http://trac.syr.edu/immigration/reports/377/.

^[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.

^[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring).
^[6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/

^[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.

^[8] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

^[9] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

^[10] Matter of Mogharrabi, 19 I&N Dec. 4379(BIA 1987).

^[11] Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007);

^[12] All statistics are from the EOIR FY 2015 Statistics Yearbook, available online at https://www.justice.gov/eoir/page/file/fysb15/download,

^[13] See Emory Law/SPLC Observation Study Rips Due Process Violations At Atlanta Immigration Court — Why Is The BIA “Asleep At The Switch” In Enforcing Due Process? What Happened To The EOIR’s “Due Process Vision?” in immigrationcourtside.com, available online at http://immigrationcourtside.com/2017/03/02/emory-lawsplc-observation-study-rips-due-process-violations-at-atlanta-immigration-court-why-is-the-bia-asleep-at-the-switch-in-enforcing-due-process-what-happened-to-the-eoirs-due-proces/

^[14] See 8 C.F.R. § 1208.13(b)(1).

^[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html

How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?” Does this represent the best that American justice has to offer?

Tex. Gov. Declares War On Local Police — Inks Bill Banning “Sanctuary Cities” — Critics Call Facebook Ceremony “Cowardly!”

https://www.washingtonpost.com/news/morning-mix/wp/2017/05/08/texas-gov-abbott-springs-surprise-on-critics-signing-sanctuary-cities-ban-unannounced-on-facebook-live/?hpid=hp_hp-more-top-stories_sanctuary-920pm%3Ahomepage%2Fstory&utm_term=.cbc2f01134b8

The Washington Post reports:

“Texas Gov. Greg Abbott made an unannounced appearance on Facebook live Sunday evening to sign a tough bill banning “sanctuary cities” in the state, thereby avoiding demonstrations opponents planned for later in the week when they thought he was going to put his signature on the legislation.

While Abbott’s spokesman said he was just trying to reach a wide audience, critics called Abbott “cowardly” for springing the signing without notice.

Though the bill, which cleared the Republican-controlled legislature last week, was opposed by most major police chiefs in Texas, Abbott said in a statement that the law was a blow against “those that seek to promote lawlessness in Texas.”

Abbott also blasted the one law enforcement officer in Texas who appears to have adopted any sort of policy resembling the amorphous concept of a sanctuary city, Travis County Sheriff Sally Hernandez, who said she would not cooperate with U.S. Immigration and Customs Enforcement requests to hold immigrants while federal authorities investigate their status.

“This law cracks down on policies like the Travis County sheriff who declared she would not detain known criminals accused of violent crimes,” Abbott said.

In fact, Hernandez does honor detainer requests from federal immigration authorities for inmates accused of serious offenses.”

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The lies just keep on flowing from folks like Abbott who are working tirelessly to make our cities and our nation less safe!

But my question is: Where is Jeff Sessions, that staunch defender of the right of local police to do anything they want, when we need him? Surely, he will come to the aid of local police who are trying to resist overreach by the Feds (in this case, the DHS)!

PWS

05-08-17

Two New Tools To Help You Understand/Practice Immigration Law: 1) USCIS “StatPack” & 2) Travel Ban Litigation Guide!

Nolan “Eagle Eyes” Rappaport kindly alerted me to this comprehensive source of USCIS immigration and citizenship data:

https://www.uscis.gov/tools/reports-studies/immigration-forms-data

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Additionally, Dan “Mr. Blog” Kowalski over at Lexis was kind enough to send me this like to a nationwide “Travel Ban” Litigation Database from “Lawfare,” helpfully organized by Circuit:

https://urldefense.proofpoint.com/v2/url?u=https-3A__lawfareblog.com_litigation-2Ddocuments-2Dresources-2Drelated-2Dtrump-2Dexecutive-2Dorder-2Dimmigration&d=DQIFAg&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=CeRQeXwCO1XABbcnui0VccohOAIcGihP TU6SjunQmI&m=8DFHNqD9Wh7TH2g60EeuBylX7190m96Q_YTMDTMs5P0&s=evpzDZD-Isv1nTFviIW1D-wNdPdmyJyu9fl1qEQXgf8&e=

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Check both of these out! Thanks again to Nolan and Dan for their tireless efforts to promote an informed approach to immigration law and policy!

PWS

05-07-17

WANTED: MORE IMMIGRANTS TO MAKE AMERICA GREAT! — Trump Administration’s “White Nationalism” Likely Road To National Disaster!

https://www.nytimes.com/2017/05/06/opinion/sunday/to-be-great-again-america-needs-immigrants.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-right-region®ion=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region&_r=0

Rushir Sharma writes in the NY Times Sunday Review:

“In short, the standard innovation theory of American exceptionalism is all about qualities that make each worker more productive. Today, nearly all the economic discussion about how to make America great again focuses on ways — like cutting red tape and taxes — to revive flagging productivity growth.

Though this discussion remains critically important, it plays down a big shift in the story. The underlying growth potential of any economy is shaped not only by productivity, or output per worker, but also by the number of workers entering the labor force. The growth of the labor force is in turn determined mainly by the number of native-born and immigrant working-age people. Over the last two decades, the United States’ advantage in productivity growth has narrowed sharply, while its population advantages, compared with both Europe and Japan, have essentially held steady.

What makes America great is, therefore, less about productivity than about population, less about Google and Stanford than about babies and immigrants.

The growing importance of the population race will be very hard for any political leader to fully digest. Every nation prefers to think of itself as productive in the sense of hard-working and smart, not just fertile. But population is where the real action is.

Comparing six of the leading developed countries — the United States, Germany, Japan, Canada, Australia and Britain — I found that not only has productivity growth been slowing across the board in recent decades, but also that the gaps in productivity growth among these rich nations are narrowing sharply. For example, in the 1990s and 2000s, productivity was growing much faster in the United States than in Germany or Japan, but that advantage has largely disappeared in this decade.

The reasons for this convergence are complex, possibly having to do with the way production technology now spreads quickly across borders. But this trend spans the developed world, and it basically holds regardless of which two countries you compare, which should raise doubts about how any one country, including the United States, can regain a distinct economic advantage by focusing only on reviving productivity.

Which brings us back to babies and immigrants. Like productivity, population growth has been slowing worldwide in recent decades, the big difference being that the gaps among the rich nations are increasingly significant. In the 1960s the United States population growth rate averaged 1.2 percent, or 50 percent higher than Europe’s and about the same as Japan’s. By the late 1960s, population growth peaked worldwide because of the spread of birth control and other cultural shifts, but it has slowed much more gradually in the United States than in its rivals.

Since 2005, per capita gross domestic product has grown on average by 0.6 percent a year in the United States, exactly the same rate as in Japan and virtually the same rate as in the 19 nations of the eurozone. In other words, if it weren’t for the boost from babies and immigrants, the United States economy would look much like those supposed laggards, Europe and Japan.

Indeed, if the United States population had been growing as slowly as Japan’s over the last two decades, its share of the global economy would be just 15 percent, not the 25 percent it holds today.

Moreover, immigrants make a surprisingly big contribution to population growth. In the United States, immigrants have accounted for a third to nearly a half of population growth for decades. In other countries with Anglo-Saxon roots — Canada, Australia and Britain — immigrants have accounted for more than half of population growth over the past decade. Those economies have also been growing faster than their counterparts in the rest of Europe or Japan. But much of that advantage would have disappeared without their population advantage.

Politically, the irony of this moment is stark. Population growth is increasingly important as an economic force and is increasingly driven by immigration. Yet now along comes a new breed of nationalists, rising on the strength of their promises to limit immigration. And they have been especially successful in countries where anti-immigrant sentiment has run strong, including the United States and Britain.

. . . .

It would be unrealistic to imagine that hard economic logic will turn the anti-global, anti-foreign tide any time soon. So the likely result is that the United States and Britain will go ahead and limit immigration. To the extent they do — and their rivals do not — they will undermine their key economic edge, and cede much of the growth advantage they have enjoyed over Europe and Japan.”

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The “other people’s babies” crowd is driven by xenophobia and racism, not by any real desire for a great future for all Americans.

Meanwhile, tone-deaf Republicans, including Jeff Sessions, are calling for limits on legal immigration, without any credible factual or statistical basis to support their restrictionist agenda. Same goes for those who would limit family-based immigration in favor of some type of “point system” favoring highly skilled migrants.

The U.S. needs (and uses) migrant labor in all parts of the economy. If anything, migration, both legal and undocumented, at the “worker bee level” — farmworkers, construction workers, food processors, child care workers, hospitality industry workers, janitors, and other service occupations — has been just as important to our growth and prosperity as a nation as have been scientists, researchers, professors, executives, star athletes, entertainers, and capitalists.

We need a comprehensive immigration reform package that not only legalizes those law-abiding immigrants already in the workforce, but provides opportunities for significantly expanded legal immigration. Not only would this more realistic approach address our economic needs, but it also would be a better way to solve immigration enforcement issues than money spent on walls, detention, and more enforcement bureaucracy.

As the system more reasonably matches supply and demand, the pressure for migration outside the system decreases and the incentive for “getting in line” increases. Just good old capitalist theory applied to the oldest human phenomenon: migration.

PWS

05-07-17

STONEWALLED!! — Congress Says “NO” To Trump’s Wall — Trims Back Requests For DHS Agents & Detention — Funds 10 New U.S. Immigration Judge Teams — Asks For 365 Day “Median” Court Case Cycle (Dream On, Dream On)!

Here’s the Section of the House Appropriations Committee Report relating to EOIR and the U.S. Immigration Courts:

"EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

                     (INCLUDING TRANSFER OF FUNDS)

    The Committee recommends $457,154,000 for the Executive 
Office for Immigration Review (EOIR), of which $4,000,000 is 
from immigration examination fees. The recommendation is 
$29,003,000 above the request. The recommendation will support 
25 additional immigration judge (IJ) teams. In addition, the 
recommendation includes a $1,706,000 program increase for the 
modernization of mission critical systems and a $5,727,000 
program increase for infrastructure improvements. The 
recommendation sustains the current legal orientation program 
and related assistance, such as the information desk pilot. The 
recommendation does not include any funding to establish or 
fund a legal representation program.
    Assuring immigration regulation helps optimize strong 
enforcement.--The Committee is concerned with the pace of 
hiring and onboarding Immigration Judges funded in fiscal years 
2015 and 2016, and expects the Department to accelerate the 
recruitment, background investigation and placement of IJ teams 
to areas that have the highest workload. The Committee is 
alarmed that despite the increased resources provided to EOIR 
in fiscal years 2015 and 2016, the median days pending for a 
detained immigration case is 71 days and the median days 
pending for a non-detained case is 665 days. While the 
Committee understands that factors outside the control of 
Immigration Judges can affect case length, these median case 
times are unacceptable. The Committee directs EOIR to establish 
a goal that by the end of the fiscal year 2017 the median days 
pending of detained cases be no longer than 60 days, and the 
median length for non-detained cases be no longer than 365 
days. To monitor the progress in this effort, the Committee 
directs EOIR to continue to provide monthly reporting on EOIR 
performance and IJ hiring as specified in the statement 
accompanying the fiscal year 2016 Omnibus Appropriation Act.
    Court space.--The recommendation fully funds the request 
for additional court infrastructure and expects EOIR to use 
these funds fully to ensure that additional IJ teams have the 
necessary court space. However, the Committee is concerned that 
EOIR is not using all available EOIR or Department of Homeland 
Security (DHS) space. EOIR is directed to provide a report to 
the Committee within 90 days of enactment of this Act outlining 
its utilization of existing EOIR and DHS space and its plans 
for acquiring additional space in order to accommodate 
additional Immigration Judges.
    Visa overstay cases.--The Committee directs EOIR to submit 
a report, no less than 60 days after enactment of this act, and 
monthly thereafter, detailing the number of instances of visa 
overstay cases that have been adjudicated through the court 
system, and recommend steps to take in coordination with other 
agencies to streamline visa overstay adjudication procedures.
    To better understand the policy and practice of immigration 
courts in setting detainee bonds, the Committee directs the 
Executive Office for Immigration Review (EOIR) to report within 
120 days of enactment on how immigration judges use ``ability 
to pay'' criteria in determining the amounts of bonds, and the 
process for appealing such bond decisions. In addition, the 
report should include for fiscal years 2012-2016 the number of 
requests for reconsideration or appeals of bond amounts; how 
many requests or appeals resulted in reductions in bonds; and 
how many detainees did not pay bond set by an immigration 
judge."

The complete Committee Report, H.R. Rep. No.114-605, is available here: https://www.congress.gov/congressional-report/114th-congress/house-report/605
****************************************

And, here is the actual language from the Appropriations Bill:

“EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

(INCLUDING TRANSFER OF FUNDS)

This Act includes $440,000,000 for the Executive Office for Immigration Review (EOIR), of which $4,000,000 is derived by transfer from fee collections. This reflects funding for EOIR in a separate appropriation account, in lieu of being funded under the former Administrative Review and Appeals appropriation.

Within the funding provided, EOIR is directed to continue ongoing programs, continue the hiring process of new judges funded in fiscal year 2016, recruit and hire no fewer than 10 new Immigration Judge (IJ) Teams, and complete modernization of mission critical systems and improvements in infrastructure as described in the budget request.

Immigration Judge Hiring and Adjudication Backlog.-The Department shall accelerate its recruitment, background investigation, and placement of IJ teams and establish median days pending targets for cases (detained and non-detained) as specified in the House Report. For fiscal year 2017, EOIR shall continue to submit monthly performance and operating reports to the Committees on Appropriations, to include the status of its hiring and deployment of new IJ teams, in the format and level of detail provided in fiscal year 2016. In addition, not later than 60 days after the date of enactment of this Act, EOIR shall report to the Committees on Appropriations on visa overstay cases as directed in the House report.”

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

In the final version of the bill, Congress supported EOIR’s mission with increased resources.

Not surprisingly, the Committee was concerned about the glacial pace at which the DOJ hired new Immigration Judges authorized in FY 2015 & FY 2016. Attorney General Sessions says he has already taken steps to “streamline and expedite” IJ hiring, although I’m not aware of the details of the revised judicial hiring process.

The Committee was also critical of the failure of the
DOJ/EOIR to obtain sufficient space for additional Immigration Judges, noting that EOIR was not currently using all available space for Immigration Courtrooms.

Notwithstanding these problems, the bill provides for 10 additional Immigration Judge “Teams” (including support staff). This was in lieu of the 25 additional Immigration Judge Teams mentioned in the report.

The Committee was shocked by the “median times” for completing both detained (71 days) and non-detained (665 days) cases. It ordered EOIR to establish goals of 60 days median for detained cases and 365 days for non-detained cases.

The 60 day detained goals appears achievable, particularly because the Trump Administration is now diverting Immigration Court resources to the detained docket. However, the Administration’s apparent intent to increase both arrests and detentions could hamper that goal.

By contrast, the 365 day non-detained goal shows a massive disconnect in the Committee’s knowledge and understanding of the current Immigration Court system. With the backlog steadily rising under the Trump Administration to 570,000 cases, careening toward 600,000, with no end in sight, a 365 day “goal” is right out of “Never-Never Land.”

Indeed, reassigning Immigration Judges from the non-detained to the detained docket to achieve a 60 day median is likely to result in further deterioration in the 665 day median for non-detained cases. And, 10 new IJs, while certainly very welcome, are a mere drop in the bucket — unlikely to make any significant dent in the backlog or the median time for non-detained cases.

The only ways to cut the median for non-detained cases to anything approaching 365 days would be by 1) doubling the size of the Immigration Judiciary (now at approximately 305), or 2) cutting the Immigration Court’s docket in half.

The former simply is not feasible in the foreseeable future, particularly given the DOJ’s inability to fill currently vacant IJ positions and to make realistic plans for expansion of courtrooms.

The second alternative could be achieved, but not the way the Trump Administration is proceeding. Instead of “jacking up” arrests, detention, and court dockets, the Administration would have to exercise discretion to pull the vast majority of the 570,000 pending cases out of court and allow individuals without serious criminal records to remain in the U.S. Eventually, some type of legalization legislation would have to be developed with Congress.

Additionally, rather than expanding the priorities to include “almost anybody,” the Administration would have to further refine the Obama Administration priorities so that only those individuals convicted of serious crimes were targeted for removal proceedings.

The current system is heading for a massive “train wreck.” While the Committee’s support of the Immigration Courts is an important step in the right direction, it doesn’t come close to addressing the current dysfunctions at DHS and DOJ with respect to the Immigration Court system.

Finally, the Committee seemed interested in getting more information about the bond system in Immigration Court, with particular emphasis on whether and how Immigration Judges were considering “ability to pay” as part of the equation for setting bonds.

PWS

05-02-17

FEAR WORKING? — Trump Showing Doubters That “Tough Talk & Actions” Can Alter Migration Patterns!

https://www.washingtonpost.com/politics/amid-immigration-setbacks-one-trump-strategy-seems-to-be-working-fear/2017/04/30/62af1620-2b4e-11e7-a616-d7c8a68c1a66_story.html?hpid=hp_rhp-top-table-main_trumpimmigration-710pm-1%3Ahomepage%2Fstory&utm_term=.f8b003fef8f7

David Nkamura writes in the Washington Post:

“In many ways, President Trump’s attempts to implement his hard-line immigration policies have not gone very well in his first three months. His travel ban aimed at some Muslim-majority countries has been blocked by the courts, his U.S.-Mexico border wall has gone nowhere in Congress, and he has retreated, at least for now, on his vow to target illegal immigrants brought here as children.

But one strategy that seems to be working well is fear. The number of migrants, legal and illegal, crossing into the United States has dropped markedly since Trump took office, while recent declines in the number of deportations have been reversed.

Many experts on both sides of the immigration debate attribute at least part of this shift to the use of sharp, unwelcoming rhetoric by Trump and his aides, as well as the administration’s showy use of enforcement raids and public spotlighting of crimes committed by immigrants. The tactics were aimed at sending a political message to those in the country illegally or those thinking about trying to come.

“The world is getting the message,” Trump said last week during a speech at the National Rifle Association leadership forum in Atlanta. “They know our border is no longer open to illegal immigration, and if they try to break in you’ll be caught and you’ll be returned to your home. You’re not staying any longer. If you keep coming back illegally after deportation, you’ll be arrested and prosecuted and put behind bars. Otherwise it will never end.”

The most vivid evidence that Trump’s tactics have had an effect has come at the southern border with Mexico, where the number of apprehensions made by Customs and Border Patrol agents plummeted from more than 40,000 per month at the end of 2016 to just 12,193 in March, according to federal data.

[Blame game: Trump casts immigrants as dangerous criminals, but the evidence shows otherwise]

Immigrant rights advocates and restrictionist groups said there is little doubt that the Trump administration’s tough talk has had impact.

“The bottom line is that they have entirely changed the narrative around immigration,” said Doris Meissner, who served as the commissioner of the U.S. Immigration and Naturalization Service in the Clinton administration. “The result of that is that, yes, you can call it words and rhetoric, and it certainly is, but it is changing behavior. It is changing the way the United States is viewed around the world, as well as the way we’re talking about and reacting to immigration within the country.”

. . . .

“One thing this administration has done that the Democrats’ message has to recalibrate for is that it’s not credible to the American people to say enforcement plays no role in [reducing] the numbers of immigrants coming illegally,” Fresco said. “Some have tried to perpetuate a myth that it is not linked. To the extent the numbers stay low, one thing the Trump administration has been able to say that is a correct statement is that enforcement does factor into the calculus.”

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Read the entire article at the above link. President Trump might be losing the battles, but winning the war. That, in turn, might force Democrats to revise their views on immigration enforcement as part of long-term immigration reform.

PWS

05-01-17

DUE PROCESS: Hold Those Thoughts! Professor Lenni Benson Tells Us How Due Process Could Be Achieved In Immigration Court!

http://cmsny.org/publications/jmhs-immigration-adjudication/

Here’s an Executive Summary of Lenni’s article in the Journal on Migration and Human Security:

“The United States spends more than $19 billion each year on border and immigration enforcement.[1] The Obama administration removed more people in eight years than the last four administrations combined.[2] Yet, to the Trump administration, enforcement is not yet robust enough. Among other measures, the administration favors more expedited and summary removals. More than 80 percent[3] of all removal orders are already issued outside the court process: When the Department of Homeland Security (DHS) uses summary removal processes, both access to counsel and an immigration judge can be nearly impossible. Advocates and policy analysts are equally concerned that a backlog of over 545,000 immigration court cases creates delay that harm people seeking asylum and other humanitarian protection. Recent use of priority or “rocket” dockets in immigration court and lack of appointed counsel also interfere with the fair adjudication of claims. Thus the administrative removal system is criticized both for being inefficient and moving too slowly, on the one hand, and for moving too quickly without adequate procedural safeguards, on the other. Both critiques have merit. The challenge is to design, implement, and most critically, maintain an appropriately balanced adjudication system.

While it is clear that US removal procedures need reform, process alone will not be able to address some of the systematic flaws within the system. Ultimately, the DHS will need to refine and prioritize the cases that are placed into the system and the government needs new tools, widely used in other adjudication systems, that can reduce backlogs, incentivize cooperation, and facilitate resolution. Congress should similarly reexamine the barriers to status and avenues for regularization or preservation of status. The paucity of equitable forms or relief and the lack of statutes of limitation place stress on the immigration court system. The lack of appointed counsel has a dramatic impact on case outcomes. Without counsel, the rule of law is barely a constraint on government authority. Conversely, a system of appointed counsel could lead to efficiencies and to a culture of negotiation and settlement within the immigration court system.

DHS has increasingly used every tool in its arsenal to expeditiously remove people from the United States and most of these tools bypass judicial hearings. In these “ministerial” or expedited forms of removal, there is no courtroom, there is no administrative judge, and there are rarely any opportunities for legal counsel to participate. Moreover, there is rarely an opportunity for federal judicial review. In these settings, the rule of law is entirely within the hands of Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officers who serve as both prosecutor and judge. There is little record keeping and almost no avenue for administrative or judicial review. This paper will argue that the rule of law is missing in the US removal adjudication system, and will propose ways in which it can be restored.

DOWNLOAD

[1] In fiscal year (FY) 2016, the budget for CBP and ICE was $19.3 billion. See analysis by the American Immigration Council (2017a) about the costs of immigration enforcement. The budget for the immigration court has grown only 30 percent in comparison with a 70 percent increase in the budget of the DHS enforcement.

[2] Taken from Obama removal data and comparison to past administrations (Arthur 2017).

[3] The DHS does not routinely publish full statistical data that allows a comparison of the forms of removal. In a recent report by the Congressional Research Service, the analyst concluded that 44 percent were expedited removals as described below, and an additional 39 percent were reinstatement of removals — 83 percent of all orders of removal were outside the full immigration court system (Congressional Research Service 2015).”

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And, here’s Lenni’s conclusion:

“Conclusion — A Dark Territory

Immigration law operates in the darkness beyond the reach of due process protections, accuracy, fairness, and transparency. Record numbers of immigrants live in the United States, but far too often they reside in a legal territory which the light does not reach. This essay has highlighted some of the characteristics of the US removal system. It outlines this system’s lack of substantive protections and its overreliance on hidden and expedited processes. It argues that this system needs to be redesigned to reflect the rule of law. The system needs to be exposed to the light of day.”

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Here is a link to Lenni’s complete article: Benson on Rule of Law.

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Before Jeff Sessions became the Attorney General, I wrote, with totally unjustified optimism and charity, that he could be the one person in Washington who could fix the due process problems in the U.S. Immigration Courts during the Trump Administration. http://wp.me/P8eeJm-ai.

But, sadly, it is now clear that Sessions, as his critics had predicted, is in fact “Gonzo-Apocalypto” — a relic of the past, wedded to a white nationalist, restrictionist, effectively racist (regardless of “actual intent”), anti-immigrant agenda.

So, there is no practical chance of the necessary due process reforms being made during the Trump Administration. Consequently, the “Gonzo-Apocalypto Agenda” will almost certainly drive the U.S. Immigration Court system into the ground. This will likely be followed by a “de facto receivership” of the Immigration Courts by the Article III Courts.

But, at some point in the future, the U.S. Immigration Court will “re-emerge from bankruptcy” in some form. Hopefully, those charged with running the reorganized system will remember the thoughtful ideas of Professor Benson and others who care about due process in America.

PWS

04-30-17

Trump “Channels A.R.” — Tells “Dreamers” To R-E-L-A-X, Nothing Bad Is Going To Happen — But, Should They Believe Him? — Sessions Has A Different Message: Nobody Is Protected!

https://apnews.com/85c427bf25c747ce85d837caccd90648

Julie Pace reports for AP:

“WASHINGTON (AP) — Young immigrants brought to the U.S. as children and now here illegally can “rest easy,” President Donald Trump said Friday, telling the “dreamers” they will not be targets for deportation under his immigration policies.

Trump, in a wide-ranging interview with The Associated Press, said his administration is “not after the dreamers, we are after the criminals.”

The president, who took a hard line on immigration as a candidate, vowed anew to fulfill his promise to construct a wall along the U.S.-Mexico border. But he stopped short of demanding that funding for the project be included in a spending bill Congress must pass by the end of next week in order to keep the government running.

. . . .

As a candidate, Trump strongly criticized President Barack Obama for “illegal executive amnesties,” including actions to spare from deportation young people who were brought to the country as children and now are here illegally. But after the election, Trump started speaking more favorably about these immigrants, popularly dubbed “dreamers.”

On Friday, he said that when it comes to them, “This is a case of heart.”

This week, attorneys for Juan Manuel Montes said the 23-year-old was recently deported to Mexico despite having qualified for deferred deportation. Trump said Montes’ case is “a little different than the dreamer case,” though he did not specify why.

The Deferred Action for Childhood Arrivals program was launched in 2012 as a stopgap to protect some young immigrants from deportation while the administration continued to push for a broader immigration overhaul in Congress.

Obama’s administrative program offered a reprieve from deportation to those immigrants in the country illegally who could prove they arrived before they were 16, had been in the United States for several years and had not committed a crime since being here. It mimicked versions of the so-called DREAM Act, which would have provided legal status for young immigrants but was never passed by Congress.

DACA also provides work permits for the immigrants and is renewable every two years. As of December, about 770,000 young immigrants had been approved for the program.”

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

Meanwhile, back at the ranch, “Fear Monger in Chief” Jeff Sessions had a somewhat less reassuring message for young people and their families:

As reported by Ted Hesson in Politico:

“Attorney General Jeff Sessions could not promise that so-called Dreamers, or participants in the Deferred Action for Childhood Arrivals program, will not be deported, when he was interviewed Wednesday morning on Fox News.

Sessions fielded questions from host Jenna Lee about an undocumented immigrant who claims he was deported to Mexico despite his enrollment in the program, which was created through administrative action during the Obama administration.

The program allows undocumented immigrants brought to the U.S. at a young age to apply for deportation relief and work permits. In a federal lawsuit filed Tuesday, Juan Manuel Montes, a 23-year-old enrollee in the program, claimed he was sent to Mexico in February despite active DACA status.

“DACA enrollees are not being targeted,” Sessions said on Fox. “I don’t know why this individual was picked up.” But when pressed, Sessions said, “The policy is that if people are here unlawfully, they’re subject to being deported.”

“We can’t promise people who are here unlawfully that they’re not going to be deported,” Sessions added.”

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

Neither Trump nor Sessions, or for that matter anyone else in the Trump Administration, has much credibility on anything, particularly immigration policy. In reality, however, it appears that very few, if any, “Dreamers” have actually been removed.

The facts of the “Montes case” are still rather murky. He appears to have reentered the U.S. illegally, which generally would subject even a green card holder to removal. Montes reportedly is asserting an earlier “illegal removal” to Mexico. But, even if proved, that wouldn’t necessarily justify an illegal return. We’ll have to see how this case “plays out” in Federal Court, before the same judge who had the “Trump University” case.

But, the situation seems unusual enough that I would not draw any conclusion that it represents a policy change. Indeed, most “Dreamers” of whom I am aware do not actually have “final orders of removal.”

If they had pending U.S. Immigration Court cases, such cases were “administratively closed” and removed from the docket. Removal of such a “former Dreamer” would require the DHS to submit a “motion to re-calendar” to the U.S. Immigration Judge.

Once re-calendared, the case would proceed in the “normal manner,” whatever that might mean in the zany world of today’s U.S. Immigration Court. Generally, however, if the “former Dreamer” were not detained, he or she would go to the “end” of the 542,000 pending cases.

In most Immigration Courts, that would mean an “Individual Hearing” date after 2020, the end of Trump’s first term. And, as I have pointed out before, absent some “smart reforms” of the Immigration Court by Congress or the Administration to restore sanity and an emphasis on due process, the 125 new U.S. Immigration Judges proposed by Sessions will not eliminate the docket backlog at any time in the near future.http://wp.me/p8eeJm-Jf

However, notwithstanding what sometimes is called “Docket TPS,” former Dreamers could face another major obstacle: lack of “employment authorization” which was included in the DACA program. Without such authorization, continuing employment could cause major legal problems for both former Dreamers and their U.S. employers.

One possible solution would be for the “former Dreamer” to file an application for immigration benefits that carries with it the opportunity to qualify for a new employment authorization. The most likely application is probably asylum, although some who have never previously been in Removal Proceedings might also qualify to file for “cancellation of removal” or other forms of regularization of status.

Indeed, many of the dreamers who were on my docket when DACA was granted by USCIS had asylum applications pending, either on their own or as a dependent on a parent’s or spouse’s application, at the time the case was “administratively closed” and removed from my docket. The complexity of individual situations makes the prospect of mass removal of Dreamers even more unlikely.

Stay tuned!

PWS

04-22-17

“Send Lawyers, Guns, and Money . . . .” — But, Bipartisan Legalization Is What Undocumented Residents REALLY Need, Says N. Rappaport in THE HILL!

Quote from “Lawyers, Guns and Money,” by Warren Zevon, check it out here: http://www.lyricsmode.com/lyrics/w/warren_zevon/lawyers_guns_and_money.html

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http://thehill.com/blogs/pundits-blog/immigration/329310-noncriminal-immigrants-facing-deportation-need-legalization

Nolan writes in a recent op-ed from The Hill:

“The absence of due process protections is permissible because IIRIA “clarified” that aliens who are in the United States without inspection are deemed to be “arriving.” In other words, they are not entitled to the rights enjoyed by aliens who have been admitted to the United States because, technically, they are not in the United States. This legal fiction has been accepted now for more than 20 years.

Previous administrations arbitrarily have limited expedited removal proceedings to aliens at the border and aliens who entered without inspection and were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

But Section 235(b)(1)(A)(iii)(ll) of the Immigration and Nationality Act (INA) authorizes expedited removal proceedings for any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.”

President Trump can use expedited removal proceedings to deport millions of noncriminal aliens without hearings before an immigration judge or the right to appeal removal orders to the Board of Immigration Appeals.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that includes a legalization program. And time is running out.

The Trump administration is quickly identifying ways to assemble the nationwide deportation force that President Trump promised on the campaign trail.

Preparations are being made for U.S. Customs and Border Protection (CBP) to hire 5,000 new officers and for U.S. Immigration and Customs Enforcement (ICE) to hire an additional 10,000. Also, ICE has identified 27 potential locations that could increase its detention space by 21,000 beds, and CBP plans to expand its detention capacity by 12,500 spaces.

But it is not too late to work on a deal that would meet the essential political needs of both parties … yet.”

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

Go over to The Hill at the link to read Nolan’s complete op-ed.

I agree with Nolan that given the huge backlogs in the U.S. Immigration Courts, the Administration will use every device at its disposal to avoid the Immigration Courts and completely eliminate due process protections for as many individuals as possible. Moreover, as I have pointed out in a recent blog, to date the Article III Courts have been willing to turn a blind eye to the rather obvious due process and statutory issues involved in expedited removal. See http://wp.me/p8eeJm-IG.

To state the obvious: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum” is meaningless without a fair opportunity to be heard on the asylum application before an impartial adjudicator, with a meaningful opportunity to present evidence, and represented by counsel of one’s choice. And, the idea that individuals who have spent months in detention in the U.S. aren’t entitled to “due process” in connection with their asylum applications (which are “life or death” applications) is facially absurd.

Yeah, I know that the Third Circuit in Castro v. DHS spent the whole decision on a turgidly opaque discussion of jurisdiction and and “suspension of habeas.” Surprising how folks living in the “ivory tower” with lifetime job security can sometimes drain all of the humanity out of “real life” tragedies.

But, frankly, in four decades of being a “highly interested observer” of immigration litigation, I’ve never seen an Article III Court, including the Supremes, be deterred from running over supposed statutory limitations on judicial review when motivated to do so. Perhaps it will take some Federal Judge’s nanny, maid, gardener, driver, handyman, neighbor, fellow church member, student, or in-law being swept up in the new “DHS dragnet” to “motivate” the courts here.

In the meantime, as pointed out to me by Nolan in a different conversation, there is some hope for due process in the Third Circuit’s dictum in Castro. In “footnote 13,” the court actually indicates that there might be a “constitutional break point” for review of expedited removal:

“Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.”

I suspect that the Administration eventually will push expedited removal and credible fear denials to the point where there will be some meaningful judicial review. But, lots of folks rights are likely to be trampled upon before we reach that point.

Nolan’s suggestion for a bipartisan legislative solution certainly seems reasonable and highly appropriate from the viewpoint of both sides. The Administration is about to invest lots of resources and credibility in a “war to deport or intimidate just about everybody” that it is likely to lose in the long run. But, advocates are likely to be bleeding resources and losing individual battles for some time before the tide eventually turns, if it ever does. Anything that depends on litigation as the solution has many risks and unpredictable outcomes that might leave both sides unsatisfied with the results.

Sadly, nobody in the Administration seems interested in solving this issue. The policy appears to be driven by Attorney General Jeff Sessions, a lifelong opponent of immigration reform who seldom if ever has a kind word to say about any immigrant, legal or undocumented.

Secretary Kelly has become “Sessions’s Parrot,” apparently devoid of any original or constructive thoughts on the subject of immigration. In particular, his recent “put up or shut up” outburst directed at Congressional Democrats who sought some meaningful oversight and clarification of his enforcement policies did not seem to be an entree for better dialogue.

Although there almost certainly is a majority of Democrats and Republicans in favor of reasonable immigration reform, which the majority of the country would also like to see, leadership of both parties seems fairly discombobulated. There seems to be “zero interest” in putting together a legislative coalition consisting of Democrats and a minority of Republicans to get anything done. And, even if such a coalition were to coalesce, President Trump likely would veto any constructive result in the area of immigration.

As I’ve pointed out before, there are a number of reasons why folks don’t always act in their best interests or the best interests of the country. But, I appreciate Nolan’s efforts to promote “thinking beyond conflict.” I want to think that it can come to fruition.

PWS

04-20-17

THE HILL: N. Rappaport Says Time For Congress To Pull The Plug On Troubled EB-5 Investor Program

http://thehill.com/blogs/pundits-blog/immigration/328386-congress-pull-fraud-laden-visa-program-for-mostly-chinese

Nolan concludes:

“So, should the EB-5 program be terminated?

Yes, Congress has had more than 25 years to fix the EB-5 program. There is not going to be a legislative “fix.” The only viable alternative is to terminate it and start over.

I have a few suggestions for the new investment program. It should:

Raise the investment amounts;
Establish more detailed statutory requirements for regional centers;
Require Chinese investors to establish that they have permission from the Chinese government to remove enough money from China to meet the investment requirement;
Provide for input from the states on designating Targeted Employment Areas but have the designations made by the federal government;
Establish guidelines for making the “Targeted Employment Area” designations which eliminate the current gerrymandering process and ensure that the investment money goes where it is supposed to go; and
Include measures to eliminate fraud from the program.

Some lawmakers have given up already. Rep. Steve King (R-Iowa) and Sen. Dianne Feinstein (D-Calif.) introduced bills to terminate the EB-5 program. These members have the right idea. It is time to put an end to a failing, faulty program and implement immigration policies that actually yield the intended result.”

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

PWS

04/12/17

REUTERS: “Aimless Docket Reshuffling” (“ADR”) Confirmed — “Detailed” U.S. Immigration Judges Pulled From Two Border Courts For Lack Of Cases — Meanwhile, “Home” Dockets Spiral Out Of Control — Mixed Up Priorities, Poor Planning, Political Interference Waste Taxpayer’s Money, Inconvenience Public, Deny Due Process, As DOJ’s Mismanagement Of U.S. Immigration Courts Continues Under Sessions — 2 Judges, 3 Weeks, 4 Total Cases, As Backlog Hits 542,000!

http://www.reuters.com/article/us-usa-immigration-judges-idUSKBN17D2SI

Julia Edwards Ainsley and Kristina Cooke report in Reuters:

“Two U.S. immigration judges recently sent to the Mexico border to process asylum requests from migrant women and children are being recalled as they have so few cases to hear, according to two people familiar with the matter.

The dearth of cases at two Texas facilities where the judges are based can be traced to a sharp drop in illegal border crossings by women and children since U.S. President Donald Trump took office in January.

Eight immigration judges were reassigned from their regular courts to detention centers at the border beginning on March 20 as part of Trump’s executive order to curb illegal immigration.

Six of the judges have had full dockets, handling dozens of cases per week. But the two at detention centers housing women and children in Dilley and Karnes County, Texas had so few cases their presence was deemed a waste of resources by the U.S. Department of Justice, according to one of the sources.

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

The number of parents and children apprehended at the U.S. Mexico border in March dropped to just over 1,000, a 93 percent fall from December, the Department of Homeland Security reported last week.

The decline follows Trump’s harsh rhetoric on illegal immigration and policies which classify almost all illegal migrants as subject to deportation.

The judges were deployed to the border in an effort to quickly hear the claims of migrants seeking asylum so that those deemed ineligible could be deported.

In more than three weeks at the border, the judge in Dilley had no hearings and the judge in Karnes County had four, according to a spokeswoman for the U.S. Department of Justice’s Executive Office of Immigration Review. [emphasis added].

. . . .

The judges deployed to the border left behind scheduled hearings in their home courts. As of early March, immigration courts were weighed down by a record backlog of more than 542,000 cases.”

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Haste makes waste. Meddling by political officials with no understanding of how the Immigration Court system works and who are not committed to due process and fairness as “mission one” has no place in our U.S. Immigration Court system, or indeed in our American system of justice. America needs an independent Article I Immigration Court now!

To further illustrate how money is being misdirected and due process undermined by the DOJ’s mal-administration of the U.S. Immigration Courts, I have heard “rumors” from several sources that the annual U.S. Immigration Judge Training Conference will be cancelled this year. This is despite some obvious quality control issues, such as gross disparities in asylum grant rates and and a gradual uptick in critical comments about the legal and factual quality of decisions by both trial and appellate judges made by some U.S. Courts of Appeals as they review removal orders. Moreover, with dozens of newly-hired Immigration Judges on board who have never attended a national training conference, there has never been a more critical time for effective, in-person training. While money is being poured down the drain on expensive, unneeded, and inappropriate details of judges, the real needs of the court system are going unmet by the DOJ.

PWS

04/12/17

“This Is The Trump Era” — Jeff Sessions Visits S. Border — Announces New Emphasis On Immigration Crimes — Although Majority of Feds’ Prosecutions Already Immigraton-Related, Enough Is Never Enough! — “Incarceration Nation” Coming! Sessions Also Seeks 125 New U.S. Immigration Judges Over Next 2 Years — Sessions “Disses” Forensic Science At DOJ!

https://www.wsj.com/articles/sessions-lays-out-tough-policy-on-undocumented-who-commit-crimes-1491930183

Aruna Viswanatha reports in the WSJ:

“Attorney General Jeff Sessions directed federal prosecutors to pursue harsher charges against undocumented immigrants who commit crimes, or repeatedly cross into the U.S. illegally, and promised to add 125 immigration judges in the next two years to address a backlog of immigration cases.

The moves are part of the administration’s efforts to deter illegal immigration and is meant to target gangs and smugglers, though non-violent migrants could also face more severe prosecutions.

In a memo issued Tuesday, Mr. Sessions instructed prosecutors to make a series of immigration offenses “higher priorities,” including transporting or harboring illegal immigrants, illegally entering or reentering the country, or assaulting immigration enforcement agents.

In remarks to border patrol agents at the U.S.-Mexico border in Nogales, Arizona on Tuesday, Mr. Sessions spoke in stark terms about the threat he said illegal immigration poses.

“We mean criminal organizations that turn cities and suburbs into warzones, that rape and kill innocent citizens,” Mr. Sessions said, according to the text of his prepared remarks. “It is here, on this sliver of land, where we first take our stand against this filth.”

“This is a new era. This is the Trump era,” Mr. Sessions said.

Former prosecutors said they didn’t expect the memo to dramatically impact U.S. attorneys offices along the southern border, which already bring thousands of such cases each year. They said it could impact those further inland, which haven’t historically focused on immigration violations.

In the fiscal year that ended in September 2016, 52% of all federal criminal prosecutions involved immigration-related offenses, according to Justice Department data analyzed by Transactional Records Access Clearinghouse at Syracuse University.

. . . .

Immigration advocates said they worried that the memo and tone set by the administration was describing a closer link between criminal behavior and immigration than statistics show.

“We are seeing an over-emphasis on prosecuting, at the federal level, immigration, illegal entry and reentry cases, and far less paid to criminal violations that implicate public safety,” said Gregory Chen, director of advocacy for the American Immigration Lawyers Association.”

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On April 8, 2017, Sari Horowitz reported in the Washington Post on how Sessions’s enthusiastic plans to reinstitute the largely discredited “war on drugs” is likely to “jack up” Federal Prison populations:

“Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.
“Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”

Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.

“They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).”

. . . .

Cook and Sessions have also fought the winds of change on Capitol Hill, where a bipartisan group of lawmakers recently tried but failed to pass the first significant bill on criminal justice reform in decades.

The legislation, which had 37 sponsors in the Senate, including Sen. Charles E. Grassley (R-Iowa) and Mike Lee (R-Utah), and 79 members of the House, would have reduced some of the long mandatory minimum sentences for gun and drug crimes. It also would have given judges more flexibility in drug sentencing and made retroactive the law that reduced the large disparity between sentencing for crack cocaine and powder cocaine.

The bill, introduced in 2015, had support from outside groups as diverse as the Koch brothers and the NAACP. House Speaker Paul D. Ryan (R-Wis.) supported it, as well.

But then people such as Sessions and Cook spoke up. The longtime Republican senator from Alabama became a leading opponent, citing the spike in crime in several cities.

“Violent crime and murders have increased across the country at almost alarming rates in some areas. Drug use and overdoses are occurring and dramatically increasing,” said Sessions, one of five members of the Senate Judiciary Committee who voted against the legislation. “It is against this backdrop that we are considering a bill . . . to cut prison sentences for drug traffickers and even other violent criminals, including those currently in federal prison.”
Cook testified that it was the “wrong time to weaken the last tools available to federal prosecutors and law enforcement agents.”

After GOP lawmakers became nervous about passing legislation that might seem soft on crime, Senate Majority Leader Mitch McConnell (R-Ky.) declined to bring the bill to the floor for a vote.

“Sessions was the main reason that bill didn’t pass,” said Inimai M. Chettiar, the director of the Justice Program at the Brennan Center for Justice. “He came in at the last minute and really torpedoed the bipartisan effort.”

Now that he is attorney general, Sessions has signaled a new direction. As his first step, Sessions told his prosecutors in a memo last month to begin using “every tool we have” — language that evoked the strategy from the drug war of loading up charges to lengthen sentences.

And he quickly appointed Cook to be a senior official on the attorney general’s task force on crime reduction and public safety, which was created following a Trump executive order to address what the president has called “American carnage.”

“If there was a flickering candle of hope that remained for sentencing reform, Cook’s appointment was a fire hose,” said Ring, of FAMM. “There simply aren’t enough backhoes to build all the prisons it would take to realize Steve Cook’s vision for America.”

. . . .

Sessions’s aides stress that the attorney general does not want to completely upend every aspect of criminal justice policy.

“We are not just sweeping away everything that has come before us.” said Robyn Thiemann, the deputy assistant attorney general in the Office of Legal Policy, who is working with Cook and has been at the Justice Department for nearly 20 years. “The attorney general recognizes that there is good work out there.”

Still, Sessions’s remarks on the road reveal his continued fascination with an earlier era of crime fighting.

In the speech in Richmond, he said, “Psychologically, politically, morally, we need to say — as Nancy Reagan said — ‘Just say no.’ ”

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Not surprisingly, Sessions’s actions prompted a spate of critical commentary, the theme of which was the failure of the past “war on drugs” and “Just say no to Jeff Sessions.” You can search them on the internet, but here is a representative example, an excerpt from a posting by Rebecca Bergenstein Joseph in “Health Care Musings:”

“We Can’t Just Say No
Posted on April 9, 2017 by Rebecca Bergenstein Joseph
Three decades ago, Nancy Reagan launched her famous anti-drug campaign when she told American citizens, “Say yes to your life. And when it comes to alcohol and drugs, just say no.” 1 Last month, Attorney General Jeff Sessions invoked the former First Lady’s legacy in a speech to Virginia law enforcement when he said, “ I think we have too much tolerance for drug use– psychologically, politically, morally. We need to say, as Nancy Reagan said, ‘Just say no.’”2 As our nation is confronted on a daily basis with the tragic effects of the opioid epidemic, it is important that we understand just how dangerous it is to suggest that we return to the ‘just say no’ approach.

In the 1980s and 1990s, the ‘just say no’ curriculum became the dominant drug education program nationwide in the form of DARE.3 The DARE program– Drug Abuse Resistance Education– was developed in 1983 by the Los Angeles police chief in collaboration with a physician, Dr. Ruth Rich. The pair adapted a drug education curriculum that was in the development process at University of Southern California in order to create a program that would be taught by police officers and would teach students to resist the peer pressure to use alcohol and drugs. With the backdrop of the War on Drugs that had continued from the Nixon presidency into the Reagan era, DARE grew quickly. Communities understandably wanted to prevent their children from using alcohol and drugs. The program was soon being used in 75% of schools nationwide and had a multimillion dollar budget.3 In fact, I would bet that many of you reading this are DARE graduates. I certainly am.

It did not take long for there to be research showing that the ‘just say no’ approach used in DARE was not working. By the early 1990s there were multiple studies showing that DARE had no effect on its graduates choices regarding alcohol and drug use.4 The decision to ignore the research about DARE culminated when the National Institute of Justice evaluated the program in 1994, concluded that it was ineffective, and proceeded to not publish this finding. In the 10 years that followed, DARE was subjected to evaluation by the Department of Education, the U.S Surgeon General’s Office, and the Government Accountability Office.4 The combined effect of these evaluations was the eventual transformation of DARE into an evidence-based curriculum, Keepin’ It REAL, which was released in 2011.5 But this only happened after billions of dollars were spent on a program that did not work and millions of students received inadequate drug education.

And yet, here we are again. The top law enforcement officer in our nation is suggesting that we go back to the days where elementary and middle school students were told that all they needed to do was ‘just say no.’”

Read the complete post here:

https://sites.tufts.edu/cmph357/author/rjosep06/

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Finally, just yesterday, on April 10, 2017, Spenser S. Hsu reported in the Washington Post that Sessions was “canning” the “National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013” as a consultant to the DOJ on proper forensic standards.

In plain terms, in Session’s haste to rack up more criminal convictions and appear “tough on crime,” the quality of the evidence or the actual guilt or innocence of those charged becomes merely “collateral damage” in the “war on crime.”

Here’s a portion of what Hsu had to say:

“Several commission members who have worked in criminal courts and supported the input of independent scientists said the department risks retreating into insularity and repeating past mistakes, saying that no matter how well-intentioned, prosecutors lack scientists’ objectivity and training.

U.S. District Judge Jed S. Rakoff of New York, the only federal judge on the commission, said, “It is unrealistic to expect that truly objective, scientifically sound standards for the use of forensic science . . . can be arrived at by entities centered solely within the Department of Justice.”

In suspending reviews of past testimony and the development of standards for future reporting, “the department has literally decided to suspend the search for the truth,” said Peter S. Neufeld, co-founder of the Innocence Project, which has reported that nearly half of 349 DNA exonerations involved misapplications of forensic science. “As a consequence innocent people will languish in prison or, God forbid, could be executed,” he said.

However, the National District Attorneys Association, which represents prosecutors, applauded the end of the commission and called for it to be replaced by an Office of Forensic Science inside the Justice Department. Disagreements between crime lab practitioners and defense community representatives on the commission had reduced it to “a think tank,” yielding few accomplishments and wasted tax dollars, the association said.

The commission was created after critical reports by the National Academy of Sciences about a dearth of standards and funding for crime labs, examiners and researchers, problems it partly traced to law enforcement control over the system.

Although examiners had long claimed to be able to match pattern evidence — such as with firearms or bite marks — to a source with “absolute” or “scientific” certainty, only DNA analysis had been validated through statistical research, scientists reported.

In one case, the FBI lab in 2005 abandoned its four-decade-long practice of tracing bullets to a specific manufacturer’s batch through chemical analyses after its method were scientifically debunked. In 2015, the department and bureau reported that nearly every examiner in an elite hair-analysis unit gave scientifically flawed or overstated testimony in 90 percent of cases for two decades before 2000.

The cases include 32 defendants sentenced to death. Of those, 14 have been executed or died in prison.”

Here is a link to the full article by Hsu: https://www.washingtonpost.com/local/public-safety/sessions-orders-justice-dept-to-end-forensic-science-commission-suspend-review-policy/2017/04/10/2dada0ca-1c96-11e7-9887-1a5314b56a08_story.html?utm_term=.97b814db4eac&wpisrc=nl_buzz&wpmm=1

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I “get” that some of the advocacy groups quoted in these articles could be considered “interested parties” and/or “soft on crime” in the world of hard-core prosecutors. But, Senate Judiciary Committee Chairman Chuck Grassley (R-IA), Sen. Mike Lee (R-UT), Speaker Paul Ryan (R-WI), and the Koch brothers “soft on crime?” Come on, man!

Capitalist theory says that as long as there is a nearly insatiable “market” in the United States for illegal drugs, and a nearly inexhaustible “supply” abroad, there is going to be drug-related crime. Harsher sentences might increase risks and therefore “jack up market prices” for “consumers” of “product,” while creating “new job opportunities” for “middlemen” who will have to take (and be compensated for) more risks and invest in more expensive business practices (such as bribery, or manipulation of the legal system) to get the product “to market.”

But, you can bet that until we deal with the “end causes” in a constructive manner, neither drug trafficking nor trafficking in undocumented individuals is likely to change much in the long run.

Indeed, authorities have been cutting off heads, hands, feet, and other appendages, drawing and quartering, hanging, crucifying, shooting, gassing, injecting, racking, mutilating, imprisoning in dungeons, transporting, banishing, and working to death those who have committed crimes, both serious and not so serious, for centuries. But, strangely, such harsh practices, while certainly diminishing the humanity of those who inflict them, have had little historical effect on crime. The most obvious effects have been more dead and damaged individuals, overcrowded prisons, and angry disaffected families.

125 new U.S. Immigration Judges should be good news for the beleaguered U.S. Immigration Courts. But, even assuming that Congress goes along, at the glacial pace the DOJ and EOIR have been hiring Immigration Judges over the past two Administrations, it could take all four years of Trump’s current term to get them on board and actually deciding cases.

More bad news: Added to the approximately 375 Immigration Judges currently authorized (but, only about 319 actually on the bench), that would bring the total to 500 Immigration Judges. Working at the current 750 completions/year (50% above the “optimum” of 500 completions/year) the currently authorized 375 Immigration Judges could complete fewer than 300,000 cases/year consistent with due process — barely enough to keep up with historic receipts, let alone the “enhanced enforcement” promised by the Trump Administration. They would not have to capacity to address the current “backlog” of approximately 550,000 cases.

If receipts remained “flat,” the 125 “new” Immigration Judges contemplated by AG Sessions could go to work on on the backlog. But, it would take them about 6 years to wipe out the 550,000 case existing backlog.

PWS

04/11/17

HISTORY: Matthew Yglesias In VOX Shows How Immigration Made America Great, Right From Our Beginning — It Wasn’t Always About Generosity To Others; It Was Mostly About What Made Us More Successful & Prosperous!

http://www.vox.com/policy-and-politics/2017/4/3/14624918/the-case-for-immigration

“George Washington set in motion a strategy so radical that it made this country the wealthiest and strongest on Earth — it made America great.

Immigration.

He embraced a vision for an open America that could almost be read today as a form of deep idealism or altruism. “America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions,” he told newly arrived Irishmen in 1783. He assured them they’d be “welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.”

But Washington’s vision wasn’t primarily about charity or helping others. It was about building the kind of country that he wanted the United States to become. Greatness would require great people. America would need more than it had.

The contemporary debate around immigration is often framed around an axis of selfishness versus generosity, with Donald Trump talking about the need to put “America first” while opponents tell heartbreaking stories of deportations and communities torn apart. A debate about how to enforce the existing law tends to supersede discussion of what the law ought to say.

All of this misses the core point. Immigration to the United States has not, historically, been an act of kindness toward strangers. It’s been a strategy for national growth and national greatness.

. . . .

Last but by no means least, while it’s certainly true that Americans care about the average well-being of American citizens, we also care about something else — greatness, for lack of a better word.

In per capita income terms, the United States has, by most measures, been overtaken by Switzerland. The Netherlands is relatively close behind, and when you consider inequality and quality of public services, the typical Dutch person may well enjoy a higher standard of living than the typical American. This kind of thing matters. But at the same time, there is a reason that when Americans feel anxiety about national decline, they tend to think of China and not Switzerland. The Netherlands is a great place to live, but it hasn’t been a great nation since the early 17th century.

Aggregates matter, in other words.

If Americans had listened to the counsel of the Know-Nothing movement in the 1850s and drastically curtailed immigration from outside of Protestant Europe, it would probably still be a rich country today. But it would be a very different kind of rich country from the one we know — one with fewer, smaller cities mainly focused on exporting agricultural goods and other natural resources to the wider world. A place more like Canada or a supersize version of New Zealand, rather than an industrial and technological powerhouse that intervened decisively in two world wars and anchored a coalition of liberal states to defeat communism.

Going forward, demographers forecast that immigration — both the people it provides directly and the children that immigrants bear and raise — is the only reason America’s working-age population isn’t declining. This is doubly true when you consider that immigrants’ work in the household and child care sectors likely serves to increase native-born Americans’ childbearing as well.
A declining working-age population, seen already in Japan and some southern European countries, poses some serious challenges to a national economy. It tends to push interest rates down to an incredibly low level, making it difficult for central banks to respond to a recession. It also makes it more difficult to sustain public sector retirement programs and elder care more generally.

There are some offsetting upsides (less strain on transportation infrastructure, for example), and, like anything else, the problems are solvable. Fundamentally, however, an America that is shrinking is a country that is going to be a lesser force in the world than an America that is growing. It’s true, of course, that an America that continues to be open to immigrants will be a progressively less white and less Christian country over time. That’s a threatening prospect to many white Christian Americans, who implicitly identify the country in ethnic and sectarian terms. But America’s formal self-definition has never been in those terms.

And for those who believe in the principles of the Declaration of Independence and the value of America’s ideals, accepting a future of decline and retreat in the name of ethnic purity should be unacceptable. That the more homogeneous America will be not just smaller and weaker but also poorer on a per capita basis only underscores what folly it would be to embrace the narrow vision. That hundreds of millions of people around the world would like to move to our shores — and that America has a long tradition of assimilating foreigners and a political mythos and civil culture that is conducive to doing so — is an enormous source of national strength.

It’s time we started to see it that way.”

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

I had these same feelings about many of the “happy cases” that came through my courtroom in Arlington over the years. I was constantly impressed with the courage, dedication, determination, and under-appreciated skills of the folks who came before me. And, I felt inspired and optimistic that they had chosen, notwithstanding hardship and obstacles, to join our national community and help make America even greater. Building America, one case at a time.

PWS

04//03/17

POLITICS/ENTERTAINMENT: Even With The Demise Of Ringling Bros. Opportunities For Clowns Abound — Daniel W. Drezner On “The Beclowning Of The Executive Branch!”

https://www.washingtonpost.com/posteverything/wp/2017/03/31/the-beclowning-of-the-executive-branch/?hpid=hp_regional-hp-cards_rhp-posteverything%3Ahomepage%2Fcard&utm_term=.0c04325e77c7

Daniel W. Drezner writes in the Washington Post:

“Fewer than a hundred days into the Trump administration, there are two, actually three, competing narratives about how the government is being run. The first narrative is the Trump administration’s claim that things are running so, so smoothly. A brief glance at the poll numbers suggests that not many people are buying this, so we can discard it quickly.

The second narrative, made by the Wall Street Journal’s editorial board among many others, is that America’s system of checks and balances turns out to be working pretty well. President Trump’s more egregious moves have been checked by federal courts and even by the court of public opinion at times. A historically unpopular and costly health-care bill did not pass the House of Representatives, which seems like the right outcome. Irresponsible foreign policy statements made by the president during the transition have been walked back. Efforts by the Trump White House to deny or scuttle investigations into foreign meddling into the election have resulted in congressional investigations, pushback by the intelligence community and recusals by Trump appointees. The administration successfully managed to pick a Supreme Court nominee who is not a laughingstock.

There’s a lot to this argument. But if I may, I’d like to proffer just a sampling of the news stories that have broken in the past 24 hours to suggest a third and more troubling narrative: the president and his acolytes are beclowning the American state.

Think I’m exaggerating? Consider the following: . . . .”

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

Read Drezner’s complete article at the above link.

In a “normal” Administration, any one of the items described by Drezner would be a jaw-dropper. But, in Trump’s Washington, it’s just another day under the Big Top. After all, “the show must go on.”

PWS

04/02/17

LINDY WEST IN THE GUARDIAN: The Party of “No Care!” — With Trump & The GOP, There Are No Positives, Only Negatives!

https://www.theguardian.com/us-news/commentisfree/2017/mar/28/america-party-less-caring-21-century-republicans-gop?CMP=fb_gu

“I don’t know that America has ever seen a political party so divested of care. Since Trump took office, Republicans have proposed legislation to destroy unions, the healthcare system, the education system and the Environmental Protection Agency; to defund the reproductive health charity Planned Parenthood and restrict abortion; to stifle public protest and decimate arts funding; to increase the risk of violence against trans people and roll back anti-discrimination laws; and to funnel more and more wealth from the poorest to the richest. Every executive order and piece of GOP legislation is destructive, aimed at dismantling something else, never creating anything new, never in the service of improving the care of the nation.

Contemporary American conservatism is not a political philosophy so much as the roiling negative space around Barack Obama’s legacy. Can you imagine being that insecure? Can you imagine not wanting children to have healthcare because you’re embarrassed a black guy was your boss? It would be sad if it wasn’t so dangerous.

That void at the heart of the party, that loss of any tether to humanity, is breeding anxiety on both sides of the political divide. According to the Atlantic, Florida Republican Tom Rooney recently turned on his cohort with surprising lucidity: “I’ve been in this job eight years and I’m racking my brain to think of one thing our party has done that’s been something positive, that’s been something other than stopping something else from happening. We need to start having victories as a party. And if we can’t, then it’s hard to justify why we should be back here.”

Vindictive obstructionism, it seems, is not particularly nourishing for the soul.”

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

West has a pretty good point. Every day, the Administration repeals, cuts, removes, reduces, blocks, restricts, revokes, disses, insults, backs away from, abrogates, disputes, defunds, threatens, shrinks, deregulates, withdraws, withholds, threatens — only the rich and corporations “get” anything or are taken care of. Everyone else is on his or her own with neither help nor encouragement from the Government. Or in the worst case, the most vulnerable among us, migrants, Muslims, the poor, gays, children, the sick, the disabled, are actually picked on, bullied, shamed, and blamed by Trump and his minions.

PWS

03/29/17

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