Interior Enforcement – Page 17 – immigrationcourtside.com

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

ASSOCIATION OF DEPORTATION DEFENSE ATTORNEYS (“ADDA”)

NEW YORK CITY

MARCH 21, 2019

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

PAUL WICKHAM SCHMIDT

U.S. IMMIGRATION JUDGE (RETIRED)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(03-21-19)

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

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

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

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

PWS

03-22-19

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

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

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

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

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

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

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

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

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

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

PWS

03-20-19

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

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

By Nolan Rappaport

© Greg Nash

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

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

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

The Catch-22 at the heart of the matter

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

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

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

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

Published originally on The Hill.

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

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

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

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

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

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

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

PWS

03-18-19

DORIS MEISSNER @ MPI: Administration’s Failed Border Enforcement Policies Anchored In Past & Distorted By Xenophobia — Most Of Today’s Arriving Migrants Seek & Deserve Safety & Protection Unavailable In “Failed States” Of Northern Triangle!

https://www.washingtonpost.com/outlook/2019/03/14/real-border-problem-is-us-is-trying-stop-wrong-kind-migrants/

Doris writes in the Washington Post:

No matter what happens with Thursday’s vote on President Trump’s declaration of a national emergency, the real root of the difficulties at the U.S.-Mexico border won’t be addressed.

The whole approach the U.S. government takes at the border is geared to yesterday’s problem: Our border security system was designed to keep single, young Mexican men from crossing into the United States to work. Every day, more evidence mounts that it’s not set up to deal with the families and unaccompanied children now arriving from Central America — in search not just of jobs, but also of refuge. The mismatch is creating intolerable humanitarian conditions and undermining the effectiveness of border enforcement.

From the 1960s to the early 2000s, the reality of illegal immigration at the southwest border was overwhelmingly economic migration from Mexico. The U.S. responded, especially once the Sept. 11, 2001, attacks prompted tighter security everywhere, by building up a well-resourced, modernized, hardened border enforcement infrastructure, with more staff and more sophisticated strategies. Successive Congresses and administrations under the leadership of both Democrats and Republicans have supported major investments in border security as an urgent national priority. About $14 billion was allocated in fiscal year 2017 for U.S. Customs and Border Protection, a steep rise from $9.5 billion a decade earlier.

From a peak of 1.6 million apprehensions in fiscal 2000 — with 98 percent of those apprehended Mexicans — border apprehensions have fallen by about three-quarters, to 397,000 last year. More Mexicans now return to Mexico annually than enter the United States. The turnaround has been dramatic and is due to the combined effects of economic growth, falling fertility rates and improved education and job prospects in Mexico; job losses in the United States surrounding the 2008-2009 recession; and significant border enforcement successes.

At the same time, an entirely different type of migration became more common. Beginning in 2012, the number of unaccompanied minorsfrom Central America — principally El Salvador, Guatemala and Honduras — crossing the border illegally jumped sharply. Modest numbers of such migrants had been arriving for many years. However, by 2014, the arrival of unaccompanied children spiked to more than 67,000 and, for the first time, the number of non-Mexican apprehensions exceeded those of Mexicans.

By 2016, the Central American flows became predominantly families with young children. Some were fleeing their countries in search of economic opportunity, but many were seeking safety and protection from widespread violence and gang activity that especially targets young people approaching or already in their teens.

Last year, 40 percent of border apprehensions were either of migrant families or unaccompanied minors, as compared to 10 percent in 2012. The proportion has risen to 60 percent in recent months, and just-released numbers show 66,450 apprehensions last month, the highest February total in a decade.

The important story, however, is not so much the numbers, which remain well below earlier peaks, as it is the change in the character of the flow. Today’s migrants include especially vulnerable populations, a large share of whom are seeking safety. As my organization reported recently, more than one in three border crossers today is an unaccompanied child or asylum seeker, up from approximately one in 100 a decade ago.

Yet the U.S. government’s posture has not been recalibrated, remaining pointed toward an illegal immigration pattern that has largely waned.

[Trump isn’t trying to solve border problems. He’s trying to make them look worse.]

Today, many people who cross the border illegally actively seek out and turn themselves in to enforcement officials so they can apply for asylum. Others have been presenting themselves at ports of entry, seeking protection. Ground sensors, camera towers and similar surveillance technology and infrastructure are less helpful as a result.

Border Patrol facilities are designed for holding people only for short periods because that used to be all they needed to do: Most Mexicans who are apprehended are processed and returned across the border within hours. The same is not the case for Central Americans and others from noncontiguous countries, increasing numbers of whom are arriving exhausted and in ill health after lengthy, arduous journeys. They can’t simply be driven back to Mexico, because they’re not from there in the first place.

Border Patrol stations are ill-suited for dealing with these vulnerable populations, as the tragedy of the two young children who died recently in Border Patrol custody sadly illustrates. The situation has been further taxed by the increasing numbers of what the Border Patrol refers to as large-group arrivals: In the first five months of this fiscal year, the Border Patrol encountered 70 groups of more than 100 migrants crossing illegally, up from 13 last year and two the year before.

Asylum officers and immigration judges, not Border Patrol and port-of-entry inspectors, make the decisions in asylum cases. The asylum and immigration court systems don’t have anywhere near the sustained funding spent on border enforcement programs. As larger shares of migrants have arrived claiming asylum, workloads have ballooned into huge backlogs as a result. And even in cases where resources have been provided, they are not always used: Congress has allocated funding for 534 immigration judges, and yet only 427 are serving. Children and families are vulnerable to physical and emotional health dangers that argue for minimal detention periods, but their cases can take months or years to decide. And policies that precipitated the separation of more than 2,700 children from their parents have only added to the trauma.

These and other factors point to the need for dramatically different border management policies and budget decisions from those made in the past, largely successfully, to deter illegal inflows from Mexico.

Testifying in Congress last week, Homeland Security Secretary Kirstjen Nielsen said the situation at the border has reached a “breaking point.” There is a crisis, but it is a crisis of an asylum system that is severely overburdened by the major uptick in humanitarian protection claims.

The asylum system can only work effectively with timely, fair decisions about who is eligible for protection — and who is not, and therefore must be returned to their country of origin. More broadly, just as improved conditions in Mexico have been key to reducing illegal crossings of Mexicans, the best way to prevent Central Americans from fleeing their native countries must include attacking the violence, corruption and poverty driving them to leave home.

Yet the Trump administration has curtailed access to asylum and ended a program allowing some Central Americans to apply for protection from within the region to keep pressure off the border. Most recently, the administration rolled out a new policy that forces some asylum seekers to stay in Mexico in highly uncertain conditions to await asylum decisions, which they are told may take up to a year. Such measures seem only to be spurring on prospective migrants to journey to the U.S. before policies get even more restrictive.

This is not to say there are easy answers. Dealing with mixed flows is a challenge not only for the United States but for other major migrant destinations in Europe and beyond. Building systems that can sift through mixed flows to fairly and efficiently provide protection to those who truly qualify and identify and remove those who don’t is difficult.

[Trump is right: There is a crisis at the border. But he’s causing it.]

But course corrections are well past due.

Steps that could be taken now include devoting money and applying new strategies to the asylum and immigration court systems so they can effectively handle a burgeoning caseload, rather than greatly narrowing who can access them. Building suitable Border Patrol facilities for receiving children and families and training agents and other staff to spot and act upon medical and other emergencies would also be required. The government could foster networks of community-based monitoring and case management programs with legal representation that provide alternatives to detention so migrants are detained for minimal periods, at less overall expense and are treated more humanely, but still appear for their asylum interviews and deportation hearings.

Ramped-up anti-smuggling initiatives and intelligence cooperation with neighboring countries are a must. Affected communities on both sides of the border need support and new partnerships with government actors, especially in the face of caravans, a method of movement on the rise among Central Americans to gain safety in numbers but posing new logistical and political difficulties for governments. And U.S. policies must give greater priority to our geographic neighborhood in developing longer-term solutions with Mexico and Central America that are in our joint national interests.

Rather than unproductive political fights over walls and national emergency declarations, these steps would go a long way to restoring order at the border. It is past time for policymakers and the public to recognize there are no quick fixes but that, even with migrant arrivals on the rise, the border can be managed through an array of proven policy initiatives.

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It’s no surprise to me that an Administration committed to a racist, White Nationalist political agenda, rather than governing in the public interest, will consistently fail to solve problems and will govern incompetently.

Families who turn themselves in to the Border Patrol at the first opportunity to apply for asylum are by no stretch of the imagination “law enforcement issues” except to the extent that Trump’s inappropriate unwillingness to process them fairly at ports of entry and to establish a robust refugee program for the Northern Triangle has created a misdirection of law enforcement resources. To claim otherwise is totally disingenuous.

PWS

03-15-19

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

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

Beth writes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

03-15-09

“DUE PROCESS DIES IN DARKNESS” — BIA “STONEWALLS” REQUEST FOR INFORMATION ON CRITERIA FOR LIFE OR DEATH “EMERGENCY STAY” DECISIONS — Lawsuit Follows!

https://psmag.com/social-justice/the-government-has-not-revealed-how-deportation-decisions-are-made

Arvind Dilawar reports for Pacific Standard:

Imagine: You are living in the United States without documentation. Years ago, you were in danger of deportation but were allowed to stay by the federal government through prosecutorial discretion. Suddenly, you are caught in a surprise mass raid of your community by Immigration and Customs Enforcement. Your family and lawyer bring your case to the Department of Justice’s Board of Immigration Appeals, petitioning board members to recognize that you should be allowed to stay in the U.S. But in as little as 24 hours, ICE has already deported you back to a country where you have not been in years, where you may have no family or friends, where you may even be in danger from the local government or paramilitary forces. The BIA has yet to make a decision about your case—or, perhaps worse, the board has decided that you should not have been deported in the first place. How do you return to your family and your home in the U.S. now?

It is scenarios like this—which affect a portion of the 256,085 peopledeported each year—that a new lawsuit filed against the BIA hopes to avert by bringing transparency to the procedures, timelines, and other aspects of the board’s inner workings. The American Immigration Council, a non-profit that protects immigrants’ rights, and the Kathryn O. Greenberg Immigration Justice Clinic, which represents indigent immigrants facing deportation, brought the suit after the BIA failed to respond to Freedom of Information Act requests about their process for granting stays of removal. Such stays allow non-citizens to avoid deportation before their cases are heard by immigration courts.

The advocates behind the suit hope that a court will order the release of information about the BIA’s criteria for granting stays and the full numbers of motions for appeals made, opened, and won. Both groups believe such information can be used to better arm immigrants, their families, and lawyers in their fights against deportation.

Pacific Standard recently interviewed representatives from both the American Immigration Council and Kathryn O. Greenberg Immigration Justice Clinic—Claudia Valenzuela and Rikke Bukh, respectively—about the motivation behind their suit against the BIA, its aims, and its importance.

Was there a specific incident or general trend that inspired you to file suit against the BIA?

Valenzuela: Both the Council and the Clinic have heard via reports, and experienced via clients, that individuals facing speedy deportation were not getting their motions for a stay of removal decided in time to avoid their physical removal. As we outlined in our complaint to the federal district court, this scenario is quite problematic as it is extremely difficult for individuals to fight their immigration cases once deported.

Bukh: Since [President Donald] Trump took office in early 2017, ICE has become much more aggressive in its enforcement and has begun increasingly apprehending, detaining, and attempting to deport large numbers of people. There have been a number of examples of ICE conducting mass raids on longtime immigrant communities. Many of the targeted individuals have been ordered deported years ago but were given permission by the federal government to remain in the U.S. through prosecutorial discretion. These non-citizens have lived here for years, even decades, and have since built their families and communities here. Now, these people are at risk of deportation to countries where they fear persecution, torture, or even death.

The stay of removal mechanism was intended to serve as a critical, potentially life-saving safeguard, and it should protect many of these people. However, the BIA’s deficient practices surrounding stays have made it ineffective, and the devastating consequences have emerged particularly sharply in the wake of these enforcement actions.

What specific information are you hoping to get out of the BIA?

Valenzuela: We are looking for all policies and procedures regarding stays of deportation filed in conjunction with motions to reopen or reconsider—and in particular how these requests are processed and tracked, timelines for deciding these requests, and how decisions on stays of deportation are communicated to individuals who request them and/or their attorneys. We also requested statistical data on the numbers of stays requested in conjunction with motions to reopen or reconsider, and rates of grants or denials in deciding those motions.

Bukh: We are seeking information that would give us insight into how the BIA makes these decisions, including guidance on adjudicating stay motions and other internal materials, as well as data to show how they make these types of decisions and the impact of current procedures and standards. It is necessary to make this information public so that courts, attorneys, and, most importantly, individuals who do not have representation can meaningfully access and utilize these mechanisms to prevent unlawful deportations.

On what grounds is the BIA refusing to share the information you’re requesting?

Valenzuela: The board claims that its information is protected on law-enforcement and national-security grounds. However, it is our position that the BIA has incorrectly invoked these exemptions.

Bukh: The agency has failed to respond in any substance regarding a significant category of information that we requested. It has also said that it does not track “non-emergency” requests for stays in its system and refused to locate such information in its files because, in its view, it would be “burdensome.”

How do you anticipate the case will proceed? If the BIA prevails, what then?

Bukh: We hope and expect that the court will see the important need for this information and require the agency to produce it expeditiously. However, the agency may recognize that its responses have been deficient and begin producing these records even before a court order. The important thing is that the public has access to this information. If the BIA were to prevail, we would review the basis for a decision and consider next steps from there.

Valenzuela: We are hopeful that the court will agree that the records we have requested are subject to public disclosure and order the BIA to release all records and statistics. Our requests address precisely the type of information that the BIA should make available to the public because it governs procedural due process for individuals in the most dire of circumstances: imminent deportation.

This interview has been edited for length and clarity.

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

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

Kate Smith reports for CBS News:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chairman Serrano Statement at Hearing on Executive Office for Immigration Review

March 7, 2019

Press Release

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

The subcommittee will come to order.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

03-12-19

THE ART OF SOCIAL JUSTICE — HON. POLLY WEBBER’S TRIPTYCH “REFUGEE DILEMMA” HITS THE ROAD!

a) “Fleeing From Persecution;” b) “Caught in the Covfefe;” c) “Safe Haven;”
The stories behold each rug by the artist, Hon. Polly Webber;
Hon. Jeffrey S. Chase & Hon. Polly Webber admiring “Caught in the Covfefe” during a break at the 2019 FBA New York Asylum & Immigration Law Conference at NY Law School on March 8, 2019;
Closeup of “Caught in the Covfefe.”

Art powerfully expresses the overwhelming need to fight for social justice and human dignity in the age of Trump’s unabashed cruelty, racism, and White Nationalism.

It’s even more powerful when the artist is Retired U.S. Immigration Judge Polly Webber (a proud member of “Our Gang” of retired judges) who has spent her life promoting Due Process, fundamental fairness, justice, and the rule of law in American immigration. She has served as an immigration attorney, former President of AILA, U.S. Immigration Judge, and now amazing textile artist bringing her full and rich life and deeply held humane values to the forefront of her art.

Thanks, Polly, for using your many talents to inspire a new generation of the “New Due Process Army!”

I’m only sorry that my photos don’t do justice to Polly’s art. Hopefully, the “real deal” will come to a venue near you in the future!

PWS

03-10-19

TWO LA TIMES EDITORIALS “SPOT ON” IN CALLING OUT TRUMP’S FAILED BORDER POLICIES, BOGUS EMERGENCY, & ABUSE OF IMMIGRATION ENFORCEMENT AUTHORITY!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=d85e48a2-1a59-4182-854b-dfd9a146177c

TThe numbers are sobering. The federal government reported Tuesday that immigration agents apprehended 76,000 people — most of them families or unaccompanied minors — at the U.S.-Mexico border in February, twice the level of the previous year and the highest for February in 11 years. The increase continues a trend that began in the fall, and offers direct evidence that President Trump’s strategy of maximal enforcement at the border is not reducing the flow of migrants.

And no, the answer is not “a big, beautiful wall.” Most of those apprehended weren’t trying to sneak past border agents; instead, they sought out agents once they reached the border and turned themselves in, hoping to receive permission to stay.

Furthermore, the situation isn’t a national security emergency, as he has declared in an effort to spend more on his border wall than Congress provided. It’s a complex humanitarian crisis that appears to be worsening, and it’s going to take creative analytical minds to address.

For instance, the vast majority of the families flowing north in recent months come from poor regions of Guatemala, where food insecurity and local conflicts over land rights and environmental protections are pushing more people off their farms and into even deeper poverty, according to human rights observers and U.S. Customs and Border Protection. Just months earlier, gang violence in urbanized areas were pushing people north to the United States; increasingly now, it’s economics.

But Trump’s rhetoric may be playing a role too. The more he threatens draconian enforcement and cutbacks in legal immigration, the more people contemplating moving north are pushed to go sooner, before it gets even harder to reach the U.S. Similarly, more migrants are arriving at more treacherous and remote stretches of the border to avoid getting stuck in Tijuana or other border cities where the U.S. government has reduced the number of asylum seekers it will allow in, claiming an inability to process the requests.

The system is overwhelmed. But the solution isn’t to build a wall, incarcerate more people, separate children from their parents or deny people their legal right to seek asylum. The solution is to improve the efficiency and capacity of the system to deal with the changed migrant demographics. A decade ago, about 1 in 100 border crossers was an unaccompanied minor or asylum seeker; now about a third are.

More judges and support staffs are necessary for the immigration court system, as the Trump administration has sought from Congress. Yet the case backlog there has continued to grow — in part because the increase in enforcement actions, in part because the Justice Department ordered the courts to reopen cases that had been closed administratively without deportations, often because the migrant was in the process of obtaining a visa. A faster and fair process would give those deserving asylum the answer they need sooner, cutting back on the years they spend in limbo, while no longer incentivizing those unqualified for asylum to try anyway.

The Migration Policy Institute, a think tank, has suggested one partial fix. Currently, migrants claiming asylum have a near-immediate initial “credible fear” hearing with an asylum officer from U.S. Citizenship and Immigration Services, who determines whether the migrant has a significant potential to make a successful asylum claim. Most migrants pass that low threshold and are then directed to the immigration courts to make the formal case, a more involved process that can take years. Keeping those cases within the citizenship and immigration branch for an administrative hearing instead of sending them to immigration court could lead to faster decisions for the deserving at a lower cost — a single asylum agent is cheaper than a court staff — while preserving legal rights by giving those denied asylum a chance to appeal to the immigration courts. That’s a process worth contemplating.

More fundamentally, the current system hasn’t worked for years, and under Trump’s enforcement strategy it has gotten worse. It’s a big ask, but Congress and the president need to work together to develop a more capable system that manages the many different aspects of immigration in the best interests of the nation while accommodating the rights of the persecuted to seek asylum.

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=1cbd9b3d-f2d0-4249-b602-37223ff3f407

The U.S. government is reportedly compiling dossiers on journalists, lawyers and activists at the border.

ASan Diego television station recently obtained some troubling documents that seem to show that the U.S. government, working with Mexican officials under a program called Operation Secure Line, has created and shared dossiers on journalists, immigrant rights lawyers and activists covering or involved with the so-called caravans of migrants moving from Central America to the U.S.-Mexico border.

Worse yet, the government then detained some of these people for questioning (one photojournalist was held for 13 hours), barred some of them from crossing the border and interfered with their legitimate efforts to do their jobs. NBC 7 also received a copy of a purported government dossier on lawyer Nicole Ramos, refugee program director for a migrant rights group, that included a description of her car, her mother’s name, and details on her work and travel history. That’s not border security, that’s an intelligence operation and, as the American Civil Liberties Union pointed out, “an outrageous violation of the First Amendment.”

The ACLU noted correctly that it is impermissible for the government to use “the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”

It’s unclear when the intelligence gathering began, or how widespread it is, but the Committee to Protect Journalists reported in October that U.S. border agents, using the broad power the law gives them to question people entering the country, seemingly singled out journalists for in-depth examinations, including searching their phones, laptops and cameras — all without warrants, because they’re generally not required at the border. These are troubling developments deserving of close scrutiny by Congress and, if warranted, the courts.

The Department of Homeland Security is responsible for controlling the flow of people across U.S. borders and has broad and court-recognized authority to search for contraband. But the government should not use that authority as a pretext to try to gain information to which it would not otherwise be entitled. And it certainly doesn’t give it a framework for harassing or maintaining secret files on journalists, lawyers and activists who are covering, representing or working with activists.

Homeland Security defended the targeting by linking the intelligence operation to the agency’s investigation of efforts this winter by some Central American migrants to cross the wall near San Ysidro, Calif. It said also that all the people entered into the database had witnessed border violence. That sounds an awful lot like a criminal investigation, not a border security operation.

The name of the report leaked to NBC 7 was “Migrant Caravan FY-2019: Suspected Organizers, Coordinators, Instigators, and Media.” The only thing suspect here is the government’s actions.

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

Unfortunately, the second editorial on the “enemies list” shows why the first one on solving the Central American forced migration issue in a sensible, legal, and humanitarian manner simply isn’t in the cards without “regime change.”

First, the Trump Administration simply lacks the competence, professionalism, and expertise to solve real problems. The absolutely stunning incompetence of Nielsen and the rest of the politicos who supposedly run immigration and national security policy these days was on full display this week. America’s “real” enemies must have been watching with glee at this public demonstration of lack of competence and concern for any of the actual national security issues facing our nation.

Career civil servants who have the knowledge, expertise, motivation, and ability to solve migration problems have been forced out, buried in make-work “hallwalker jobs” deep in the bowls of the bureaucracy, or simply silenced and ignored. The Administration has also declared war on facts, knowledge, human decency and scorns the humanitarian expertise available in the private and NGO sectors.

Second, there is zip motivation within the Trump Kakistocracy to solve to the problem. As long as neo-Nazi Stephen Miller is in charge of immigration policy, we’ll get nothing but White Nationalist, racist nonsense. Miller and the White Nationalist restrictionists (like Trump & Sessions) have no motivation to solve immigration problems in a practical, humane, legal manner.

No, the White Nationalist agenda is to use lies, intentionally false narratives, racial and ethnic stereotypes, bogus statistics, and outright attacks on our legal system to further an agenda of hate, intolerance, and division in America intended to enfranchise a largely White GOP kakistocracy while disenfranchising everyone else. It plays to a certain unhappy and ill-informed political “base” that has enabled a minority who cares not a whit about the common good to seize control of our country.

While the forces of evil, division, and Constitutional nihilism can be resisted in the courts, the press, and now the House of Representatives, the reign of “malicious incompetence” can only be ended at the ballot box. If it doesn’t happen in 2020, and there is certainly no guarantee that it will, it might well be too late for the future of our republic.

PWS

03-07-19

WORLD ECONOMIC FORUM: GOOD NEWS: Migration Is Good For The World, Sending & Receiving Countries Benefit, & The Oft-Repeated Myths Of Fiscal Burdens & Wage Depression For “Host Countries” Are False — BAD NEWS: Countries With Nationalistic Leaders Who Are “Invested In The Myths” Are Unlikely To Realize The Full Potential Of Migration

https://www.project-syndicate.org/commentary/global-compact-opposition-migration-development-by-mahmoud-mohieldin-and-dilip-ratha-2019-02

On December 19, 2018, the United Nations General Assembly voted to adopt the Global Compact for Safe, Orderly and Regular Migration, with 152 votes in favor, five votes against, and 12 abstentions. Supporters hailed the Compact as a step toward more humane and orderly management of migration, yet opposition remains formidable.

The Compact is not a legally binding treaty, nor does it guarantee new rights for migrants. In fact, the Compact’s 23 objectives were drafted on the basis of two years of inclusive discussions and six rounds of negotiations, focused specifically on creating a framework for international cooperation that would not interfere excessively in countries’ domestic affairs.

Because of misunderstandings about the Compact, it is worth taking a closer look at the migration challenge – and the vast benefits that a well-managed system can bring to host countries and home countries alike.

Migration is motivated, first and foremost, by lack of economic opportunities at home. With the average income level in high-income countries more than 70 times higher than in low-income countries, it is not surprising that many in the developing world feel compelled to try their luck elsewhere.

This trend is reinforced by demographic shifts. As high-income countries face population aging, many lower-income countries have burgeoning working-age and youth populations. Technological disruption is also putting pressure on labor markets. Moreover, climate change, as indicated by a recent World Bank report, will accelerate the trend, by driving an estimated 140 million people from their homes in the coming decades.

But, contrary to popular belief, nearly half of all migrants do not move from developing to developed countries. Rather, they migrate among developing countries, often within the same neighborhood.

Moreover, return migration is increasing, a fact that is often overlooked, often because migrants were denied entry into the labor market or their work contracts ended. For example, the number of newly registered South Asian workers in the Gulf states declined significantly – by anywhere from 12% to 41% – over the last two years. Between 2011 and 2017, the number of potential returnees in Europe – asylum-seekers whose applications were rejected or who were found to be undocumented – increased fourfold, reaching 5.5 million. Over the same period, the number of potential returnees in the United States more than doubled, to over three million. Return migration from Saudi Arabia and South Africa has increased as well.

Those migrants who remain in their host countries make substantial contributions. Although the world’s estimated 266 million migrants comprise only about 3.4% of the global population, they contribute more that 9% of GDP.

To achieve this, migrants must overcome high barriers to economic success. For example, unskilled workers, especially those from poor countries, often pay very high fees – which can exceed an entire year’s income for a migrant worker in some destination countries – to unscrupulous labor agents to find employment outside their own countries. That is why the Sustainable Development Goals (SDGs) include a target to reduce recruitment costs.

Migration also delivers major economic benefits to home countries. While migrants spend most of their wages in their host countries – boosting demand there – they also tend to send money to support families back home. Such remittances have been known to exceed official development assistance. Last year, remittances to low- and middle-income countries increased by 11%, reaching $528 billion, exceeding those countries’ inflows of foreign direct investment.

Globally, the largest recipient of remittances is India ($80 billion), followed by China, the Philippines, Mexico, and Egypt. As a share of GDP, the largest recipients were Tonga, Kyrgyzstan, Tajikistan, and Nepal. The increase in remittances during 2018 was due to improvement in the labor market in the US and the recovery of flows from Russia and the Gulf States.

But the potential of remittances to support sustainable development is not being met. A major obstacle is the high cost of transferring money.

Migrants sending money home pay, on average, 7% of the total of the transfer itself, owing to weak competition in the market for remittance services – a result of stringent regulations intended to combat financial crimes like money laundering – as well as reliance on inefficient technology. Achieving the SDG target of reducing transfer costs below 3% – which would support progress toward the target of increasing the total volume of remittances – will require countries to address these weaknesses.

We are closely monitoring these often-overlooked ways that migration can support development, owing to their links to SDG indicators. But recent research busts other migration myths as well, showing, for example, that migrants neither impose a significant fiscal burden on host countries nor depress wages for lower-skill native workers.

Migration flows are increasing – a trend that is set to continue. Fragmented migration policies shaped by popular myths cannot manage this process effectively, much less seize the opportunities to spur development that migration creates. Only a coordinated approach, as envisioned in the Global Compact, can do that.

Share

Written by

Mahmoud Mohieldin, Corporate Secretary, World Bank

Dilip Ratha, Manager of Migration and Remittances, Development Prospects Group of the World Bank

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

Needless to say, the Trump Administration has rejected the Global Compact out of hand, as an “infringement on sovereignty,” and takes a unilateral “America first, last, and always, who cares about anyone else” approach to migration issues.

These authors speak a “core truth:”

Migration flows are increasing – a trend that is set to continue. Fragmented migration policies shaped by popular myths cannot manage this process effectively, much less seize the opportunities to spur development that migration creates. Only a coordinated approach, as envisioned in the Global Compact, can do that.

That’s why “regime change” will be essential for the U.S. to take full advantage of the benefits of migration and for our country to regain its leadership role on the world stage.

PWS

03-06-19

PERSPECTIVE: OUR FAILED IMMIGRATION ENFORCEMENT POLICIES LOOK JUST AS DUMB, SHORT-SIGHTED, & CRUEL FROM THE OTHER SIDE OF THE BORDER!

https://apple.news/

Looking at deportation from south of the border, I saw our own flawed attitudes about migration more clearly

February 25, 2019

While reporting on deported Mexicans in that country’s capital, I saw the human cost of our failure to develop a thoughtful immigration policy.

By

By Tyrone Beason

Times staff reporter

MEXICO CITY — For the thousands of Mexicans who’ve been deported from the United States and who’ve chosen to rebuild their lives in this massive capital city, America represents “el otro lado,” Spanish for “the other side.”

On our side of the U.S./Mexico border, from Florida to Washington state, these repatriated Mexicans left behind jobs, loved ones and community ties.

On our side, they experienced the chaos and coldness of America’s immigration and deportation system, one that has shown little interest in broken families and the loss of economic viability, or the relative unsafety and cultural hostility toward migrants of all kinds that deported people face after returning to their native country.

Earlier this month, two of my Times colleagues and I traveled here, to the other side of America’s border crisis, to learn about life after deportation. The stories we heard, the hardships we came to understand and the grass roots efforts we learned about will all be presented soon in a special package in The Times.

But before I write about that, I wanted to write about the strange context in which we did our reporting.

There we were covering the real-life experience of being kicked out of the United States, during the same week that our president declared a state of emergency to prevent an imaginary army of Mexican and Central American migrants from barging in.

The way President Donald Trump describes it, we are at war with craven invaders who don’t want to play by America’s immigration rules.

From the vantage point of Mexico City, though, it seemed as if America had plunged deeper into a war with itself, in part because it can’t come up with sensible rules for a nation that has been built and sustained by immigrants and migrant workers — both free and captive.

People who live and work in the United States without legal documents do represent a special category of migrant, and they certainly know the risks.

But as I sat and listened to returnees in Mexico City — who had migrated to the United States with their families when they were minors, or who started their own families while on American soil in the years before being deported — the trauma of deportation and the complexity of the rebuilding process seemed more real.

We are good at sending people “back where they came from” for the crime of being here without papers and sometimes for committing other offenses that result in being considered unfit for legal residency. What we are not so good at is considering the possible injustice of forcing people back into countries that may not be equipped to reintegrate them, that may not even want to welcome them home, and that for all intents and purposes may not feel like “home” anymore.

Mexico City — a teetering metropolis that sits at an elevation of 7,300 feet and that’s more than 20 million people strong — is a hard place to navigate even for those who were born here and never left. It’s especially challenging for those who left years ago in search of a better life in America and now find themselves back here and needing to start over, in a city dealing with issues like poverty and corruption.

We met repatriated Mexicans who spoke like homies from around the way, who shook my hand with the soul-brother salute, who talked about the United States as if they had been born wrapped in red, white and blue, who are proudly making it work in the land of their ancestors while also displaying the spirit of their adoptive motherland up north.

In deportation cases, the decision can seem pretty cut-and-dry: Should they stay or should they go?

On the ground in the beautiful cacophony that is Mexico City, the overcrowded and smoggy incubator of dreams big and small, everything was a blur and there were nothing but gray areas.

It’s so easy in our society to portray immigrants who carry proper documentation as “good” and those who don’t have those documents as “bad,” but when our government behaves as if it doesn’t care about the aftereffects of the decision to expel someone from our soil — which seems to be the case right now — it is our character that’s in question.

Trump’s wall is not the only story. And immigration isn’t our only crisis.

We have a responsibility to be careful about who we let into this country, to be sure. But we also have to find a way to more humanely manage the detention, departure and reintegration of those we send away — to see them as human beings even when they have violated the integrity of our borders.

We can act as if the fate of undocumented migrants isn’t our problem, that they shouldn’t have come here under those circumstances in the first place.

But if we deal with the original sin of entering the United States illegally in such a clinical way, we will be committing the equal sin of heartlessness when humanity is due.

Justice is never truly blind.

Because of that, as we think about deportation, we should view this tough journey with our eyes wide open.

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

Callous treatment of those who might once have thought of our country as “home” is never a good idea. Not fully considering the human and political consequences of our own actions is the height of arrogance. It says to the world “who cares about others and what they think — we can do as we please because we’re the biggest and richest bullies on the block.”

Under Trump, the U.S. is faltering on most foreign policy fronts, unnecessarily alienating our potential friends and allies and “sucking up” to the worst and most dangerous strongmen in the world while getting little of verifiable value in return (notably, one of the worst among them, Putin, helped install Trump in his current position).

No country remains “on the top of the heap” forever. And, as our power and influence begin to wane under Trump’s erratic and incompetent hand, we might someday soon find that we need all the friends we can get, even outside our border, to maintain and regain our position and prestige in the world. Just ask the Brits about the perils of “going it alone” — or letting national policies be driven by irrational and self-defeating nativist sentiment.

PWS

02-26-19

INSIDE THE “NEW AMERICAN GULAG:” Conditions Are Cruel, Inhuman, Degrading, & Life-Threatening — Why Are We Funding The Perpetrators, Rather Holding Them Accountable & Demanding An End To Human Rights Abuses In America?

https://www.latimes.com/opinion/op-ed/la-oe-saadi-immigration-health-care-detention-facilities-2019025-story.html

Altaf Saadi, M.D., writes in the LA Times:

This week, a 45-year-old immigrant in the U.S. illegally died in Border Patrol custody. His death follows the December deaths of 7-year-old Jakelin Caal and 8-year-old Felipe Alonzo-Gomez in United States immigration custody, both of which prompted demands for improving healthcare for immigrants in detention.

As a physician who has evaluated dozens of individuals in Immigration and Customs Enforcement detention for legal groups and human rights organizations, I know that high-profile deaths are only one small piece of the story of severely substandard healthcare in America’s immigration detention system.

For example, in one detention center I met and reviewed the medical records of a man who had been thriving and holding steady employment for years while on schizophrenia medications. Then he was picked up and detained by ICE. In detention, he told me, ICE personnel abruptly stopped his medications. After a nearly two-week delay, an alternative medication was prescribed, but it was not as effective. His mental health deteriorated, and he experienced worsening auditory hallucinations and suicidal thoughts. He attempted suicide four times.

Media reports of high-profile deaths capture only a sliver of the human rights violations occurring in detention.

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Another individual I met with and whose medical records I reviewed had longstanding hypothyroidism, but ICE failed to provide her with thyroid medication in detention. When she was first hospitalized for worsening mental health, her thyroid hormone level was 60 times higher than normal. Despite the hospital medical team’s explicit instructions, ICE still failed to provide her thyroid medication when she returned to detention. It was not until a second hospitalization, again with a critically abnormal thyroid hormone level, that she finally received her medication.

I also met with a man who had developed a stomach ulcer and vomited blood after ICE medical personnel gave him ibuprofen repeatedly for back pain — even though he had reported symptoms of severe heartburn. Any physician applying the proper standard of care would know to minimize prescribing ibuprofen to an individual with severe heartburn.

The kinds of problems I saw are in keeping with the type repeatedly documented by immigrant advocates, filed in litigation and contained in the government’s own reports. According to Freedom for Immigrants, a national advocacy group seeking to end immigration detention, the top complaint they hear from detained immigrants is medical neglect.

In addition, multiple Department of Homeland Security inspector general reports have concluded that detention facilities repeatedly fail to comply with federal standards, including those requiring adequate healthcare. In 2017, a report noted delays in the provision of healthcare and a lack of adequate documentation. And the problems extend beyond healthcare. A report in January 2019 cited more than 14,000 deficiencies found during inspections of 106 immigrant detention facilities nationwide between October 2015 and June 30, 2018.

Substandard conditions can significantly harm an individual’s health. Many of the individuals I met with said they experienced sleep deprivation from lights being kept on 24 hours a day. Some said they had to wear dirty prison uniforms that caused urinary and vaginal infections. Others complained of being served rotten or inadequate food, a violation of standards that has been repeatedly documented in inspection reports.

Enter the Fray: First takes on the news of the minute »

Some detainees also reported verbal and physical abuse by guards, which can significantly worsen the mental health of immigrant detainees. For example, during one of his acute mental health crises, the schizophrenic man I interviewed recalled banging his body against a wall as he wrestled with voices telling him to kill himself. He said a guard referred to his distress as a “tantrum” and told him to “get over it.”

Other detainees told me that staff used frequent racial epithets and also referred to them as “crazies,” or “Loony Tunes,” or “trash.” As one detainee put it: “They see us not like human but as animals here.”

Media reports of high-profile deaths capture only a sliver of the human rights violations occurring in detention. None of the patients I interviewed died from the dangerous neglect they experienced, and so their experiences didn’t garner headlines. But their experiences were dangerous — and not uncommon. We need to hold the U.S. government accountable not just for the deaths that occur of immigrants in their custody, but also for the neglect and abuse that can lead to or exacerbate serious health problems.

Altaf Saadi is a neurologist, clinical instructor of medicine, and fellow at the National Clinician Scholars Program at UCLA. She has performed numerous evaluations for the Physicians for Human Rights Asylum Network.

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

I continue to think that the bipartisan Goverment funding bill was not the right place to deal with the “New American Gulag.” But, Democrats should “keep hammering” on this important “below the radar screen” issue. Making an oversight record of the many abuses, false narratives, cover-ups, and lies underlying the Gulag should be a high priority.

What meaningful civil immigration detention reform could look like:

A “hard cap” probably in the area of 10,000 to 15,000 detention slots;
An end to private detention;
Enactment of strict standards governing the conditions of civil immigration detention;
A specific requirement for proper health and psychiatric care for those detained;
A bar on detention being used for “deterrence” or “punishment;”
Change in the law to permit all individuals in civil immigration detention to seek release on bond in U.S. Immigration Court (obviously, the Immigration Judges would retain the discretion to deny bond on the merits where warranted by the facts) with review by an Article III Court;
Periodic bond hearings every six months for those in “long-term detention;”
A requirement that access to counsel be a primary consideration in establishing immigration detention sites, and that pro bono groups and NGOs be consulted and given an opportunity to comment before any new immigration detention centers are established;
An end to the regulatory practice of allowing ICE Counsel to unilaterally block the order of a U.S. Immigration Judge pending appeal of a decision to release on bond (the Immigration Judge and the BIA would retain discretion to grant stays pending appeal, where appropriate, on application by ICE);
A statutory presumption in favor of ankle monitoring and other “alternatives to detention,” with physical detention being a disfavored, “last resort:”
Accountability for how detention dollars are spent and consequences for those in DHS and DOJ, including political officials, who violate or evade the law, including intentional falsification or misrepresentation of statistics, or who fail to implement the mandated reforms in a timely and reasonable manner.

Remember folks, these aren’t “beds,” or other “pieces of furniture;” these are fellow human beings, most of whose “offenses” consist largely of seeking to exercise their legal rights to fair treatment and Due Process under our laws and our Constitution!

PWS

02-25-19

ORION DONOVAN-SMITH @ WASHPOST: Long-Time Liberian Residents Learn That No Group Is Too Small To Escape The Xenophobic Wrath Of The Trump Administration! — PLUS “BONUS COVERAGE” — My “Saturday Essay” — “ANOTHER PERSPECTIVE”

https://www.washingtonpost.com/national/end-of-immigration-program-gives-liberians-in-us-a-choice-leave-their-american-children-or-become-undocumented/2019/02/20/03b3cae6-30db-11e9-813a-0ab2f17e305b_story.html

Orion writes:

MAPLE GROVE, Minn. — Magdalene Menyongar’s day starts with a 5:30 a.m. conference call with women from her church. They pray together as Menyongar makes breakfast and drives to work, reflecting on everything they are thankful for.

But lately, the prayers have turned to matters of politics and immigration. They pray with increasing urgency for Congress or President Trump to act before Menyongar, 48, faces deportation to her native Liberia, where she fled civil war nearly 25 years ago.

In less than six weeks, the order that has allowed her and more than 800 other immigrants from the former American colony in West Africa to live in the United States for decades will end, the result of Trump’s decision last year to terminate a program that every other president since George H.W. Bush supported. Come March 31, Menyongar will face a choice: Return to Liberia and leave behind her 17-year-old daughter, an American citizen, or stay in the United States, losing her work authorization and becoming an undocumented immigrant.

“It’s hard to think about because you have built a life,” said Menyongar, who works as a certified nursing assistant. “Maybe it’s part of my brain that I try to block out. When I think about it, all I do is pray.”

A portrait of Menyongar outside her home in Maple Grove, Minn., on Feb. 3. She faces a decision: Leave her daughter in the United States and return to Liberia or stay and become an undocumented immigrant. (Jenn Ackerman for The Washington Post)

Menyongar is among thousands of Liberian immigrants who were given temporary permission to stay in the United States in 1999, when President Bill Clinton implemented “deferred enforced departure.” DED was routinely extended by previous administrations but is set to end under Trump’s effort to terminate programs for immigrants without permanent status, which also has endangered Deferred Action for Childhood Arrivals and temporary protected status for immigrants from 10 other countries.

Temporary protected status, or TPS, was established by Congress in 1990 for citizens of countries suffering from war, environmental disaster, health epidemics or other unsafe conditions. They are given temporary permission to work in the United States and travel abroad without fear of deportation.

A class-action lawsuit filed Feb. 12 in a federal court in California seeks to block the Trump administration from ending TPS for immigrants from Honduras and Nepal. In October, a federal judge in the same court issued an injunction that stalled the end of TPS for citizens of four other countries.

But that court action does not apply to the smaller and lesser-known DED program, which operates purely at the president’s discretion and gives no statutory basis on which to sue.

Without a change of heart from the president — or new legislation from Congress — Liberians living in the United States under DED will lose their work authorization and become subject to deportation. Instead of self-deporting, many are expected to stay in the United States in hopes of getting a hearing in immigration courts, a process that could take years.

Trump has made curtailing illegal immigration a central tenet of his agenda, saying in his State of the Union address this month that immigrants should come to the United States “in the largest numbers ever, but they have to come in legally.”

But critics say his move to end protection for Liberians, leaving them undocumented after decades in the country legally, reflects an immigration policy that is capricious and, at worst, driven by racial bias.

Menyongar gets ready for work. Her paychecks from two nursing homes help support relatives in Liberia. (Jenn Ackerman for The Washington Post)

Family photos at Menyongar’s home. (Jenn Ackerman for The Washington Post)

Menyongar and her daughter, Gabby, at home. (Jenn Ackerman for The Washington Post)

“There comes a point where even if relief started as temporary, it needs to end with some possibility for permanence,” said Royce Murray, managing director of programs at the American Immigration Council, an advocacy group. “These are people who have built their lives here, have invested in their communities and are raising American citizens.”

Last week, a group of DED holders from Minnesota traveled to Washington to lobby representatives, and Democrats have responded with legislative efforts. Rep. Dean Phillips, a freshman Democrat who represents Menyongar’s Minnesota district, pushed unsuccessfully for a DED provision to be included in the spending bill Trump signed.

In addition, Sen. Jack Reed (D-R.I.) reintroduced a narrow bill he has pushed in every session of Congress since 1999 to offer Liberians with DED a chance to apply for permanent residency. A spokesman for Rep. Nydia M. Velázquez told The Washington Post the New York Democrat is working to include similar provisions in a broader immigration bill to be unveiled in the coming weeks.

Opponents of the programs say they have outlasted their original intent, to provide temporary protection, and represent a misuse of executive authority.

RJ Hauman, government relations director at the Federation for American Immigration Reform, which favors reduced immigration and greater enforcement, calls DED and TPS “flagrant abuses of our immigration system.”

“Both of these ‘temporary’ designations have been on autopilot for years, with one unmerited, open-ended extension after another,” Hauman said. “These individuals should return to their homeland, which has since recovered, and use their skills to enrich Liberian society.”

Like many Liberians who fled their country’s back-to-back civil wars between 1989 and 2003, Menyongar applied for asylum when she arrived in America in 1994. Her request was denied when she was unable to reach relatives in Liberia to get proof of her family ties to a politician there, whose prominence she feared would make her a target should she return. She was able to remain in the United States under TPS until 1999, when the program expired for Liberians and DED was created to extend protection to about 10,000 people at the time.

Liberians don’t have to register with the federal government to qualify for DED, so there’s no reliable count of how many people depend on the program. But as of March 2018, approximately 840 had work authorization under DED, according to U.S. Citizenship and Immigration Services. Liberians must have lived in the United States continuously since 2002 or earlier to qualify.

Most of the original DED beneficiaries have since left the country, died or gained permanent status, Murray said. She estimates as many as “a few thousand” may remain in the country but have not renewed their optional work permits, which cost a total of $495 in annual fees.

Permanent residency can come through political asylum, marriage to a U.S. citizen, family ties or an employer’s sponsorship. Menyongar’s husband, also a Liberian immigrant, died in 2011. Her attorney has advised that her surest option for a green card would be sponsorship by their daughter, Gabby Gworlekaju — something the teenager can’t provide until she is 21.

[American Girl: A 14-year-old prepares for life without her immigrant parents]

Gabby’s primary focus these days is preparing for college, possibly in Atlanta to be close to her father’s family and escape the frigid Midwest winters. She said she didn’t understand that her mother could have to leave until last March, when Trump declared a one-year “wind-down period” for DED. She has told her best friend how worried she is about the situation but avoids talking about it otherwise.

“It’d be a life-changing choice,” Gabby said. “That would mean that my mother would have to physically be removed out of my life, and I’d have to continue on. I can’t even explain how I would react.”

Some members of Bethel Robbinsdale’s congregation may face deportation when deferred enforced departure ends. (Jenn Ackerman for The Washington Post)

Pastor Natt J. Friday preaches at Bethel Robbinsdale on Feb. 3. “These people, if you grant them permanent residence, they are going to be so patriotic,” he said. (Jenn Ackerman for The Washington Post)

The choir sings at Bethel Robbinsdale on Feb. 3. (Jenn Ackerman for The Washington Post)

A second family, a second home

Minnesota is home to the nation’s largest Liberian community, concentrated in the northwestern suburbs of Minneapolis. A few times each week, Menyongar makes a 20-minute drive to Bethel Robbinsdale — one of several Liberian churches in the Twin Cities area — where she serves as president of the women’s ministry.

After communion during a recent Sunday service, the band and choir struck up a euphoric tune while Menyongar joined the congregation in dancing through the pews. Dressed in a brightly colored jumpsuit and a turquoise head wrap, she exchanged handshakes and hugs along the way.

“The church is my second family,” Menyongar said. “It’s like a support system that we have for each other.”

At one point during the two-hour service, the worship paused so a church member could announce an upcoming rally at the state capitol to raise the alarm about the end of DED. Later, Pastor Natt J. Friday led a prayer for those affected.

Friday knows Menyongar isn’t the only member of his church who could face deportation, but he can’t say for sure how many will. Many keep their immigration status secret.

“These people, if you grant them permanent residence, they are going to be so patriotic,” Friday said. “The burden would be lifted off their shoulders to know that they can finally live a normal life.”

Liberian immigrants have taken prominent positions in Minneapolis and its suburbs, such as Brooklyn Center, which recently elected its first Liberian-born mayor. They moved in part for the job market — a shortage of nurses and other health-care workers drew many, like Menyongar, to work in hospitals and assisted-living facilities.

Mary Tjosvold, who owns group homes for seniors and people with disabilities, employs more than 150 Liberians. Although she does not track how many of her employees are protected by DED, she said losing even a few workers would have wide ripple effects.

“People have had these jobs for a long time. They’re important parts of businesses,” said Tjosvold. “On an economic basis, it doesn’t make any sense, no matter what you think politically.”

[‘I feel this is my home’: Hundreds protest in Washington to support immigrants with temporary protected status]

An end to the policy also has economic implications abroad. Remittances sent from those working in the United States to their relatives in Liberia act as “a source of de facto foreign aid,” said Paul Wickham Schmidt, a former immigration judge and current adjunct professor at Georgetown Law School.

Menyongar works a combined 60-plus hours each week at two nursing homes, and her paychecks support her 97-year-old mother and other relatives in Liberia.

Schmidt said the idea that Liberians losing DED will self-deport is unrealistic.

“My experience is that most people go home not because they’re threatened, but because they deem it in their overall best socioeconomic interest,” he said. “A lot depends on what faces you at home, which is why this administration’s policy doesn’t work.”

Mark Krikorian, executive director of the Center for Immigration Studies, a Washington think tank that supports sharp immigration restrictions, argues that a president should not be able to prolong temporary programs like DED without congressional approval. Even so, he said, “When we’ve permitted people to lawfully reside here for decades, it’s practically and politically and morally problematic to say, ‘Okay, now time is up.’ ”

Liberia has been emerging from war during the past 15 years and last year saw its first peaceful transfer of power since 1944. In a memorandum announcing the end of the temporary status, Trump wrote, “I find that conditions in Liberia no longer warrant a further extension of DED.”

Menyongar strongly disagrees with that assessment, citing violent crime, poor health care and infrastructure, and a lack of jobs in explaining why she could not return to her country of birth.

“The Liberia that I knew and grew up in is not the Liberia of today,” she said.

Menyongar worships at Bethel Robbinsdale. (Jenn Ackerman for The Washington Post)

This article was produced in partnership with the Investigative Reporting Workshop at American University, where Donovan-Smith is a student.

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

ANOTHER PERSPECTIVE: There Is Nothing Inherently Wrong With TPS Or DED — But, There Is Plenty Wrong With The Trump Administration’s Mistreatment Of 800 Long-Term Residents From Liberia

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

Far from being a “problem,” as Trump and his restrictionist “naysayers” like to falsely claim, the TPS/DED program for Liberians has been a tremendous success! With a little “Congressional tinkering,” it could easily become a model for resolving future humanitarian situations without overburdening the US asylum system and adding to the huge existing U.S. Immigration Court backlog.

The US was able to provide humanitarian assistance to at least 10,000 Liberians during the darkest time for their country. This was accomplished without the time, expense, and often inconsistent and unsatisfactory results of forcing them into the formal US asylum system.

While in TPS/DED, Liberians were able to work legally, pay taxes, raise their families, live in peace, and otherwise contribute to American society. Over the years, many were over able to fit within our legal immigration system. Some died. Others found that with changes in Liberia, it made socio-economic sense for them to return there. A very few violated the rules of our hospitality and were duly arrested and removed after receiving Immigration Court hearings (most before the Trump Administration “trashed” due process in Immigration Court). The Government might even have turned a slight profit on the routine renewals of work authorization for which a fee was charged that probably exceeded the actual time it took to adjudicate them.

Now, we have approximately 800 long-term residents remaining who would like to stay here with their families, jobs, and communities. Passing the necessary legislative fix to allow them to get green cards should be a “bipartisan no brainer” — indeed if the Administration introduced and supported such a fix, it almost certainly would pass by huge margins and be signed into law. Presto — problem fixed and everyone wins! At a minimum, a rational Administration would exercise “prosecutorial discretion” (“PD”) to maintain the status quo and allow the few remaining Liberians to reside in the US and work legally pending good behavior and a legislative solution.

The law might or might not have been specifically designed for this outcome. But, wiser Administrations in the past used the available legal mechanisms along with Executive authority and common sense to solve human problems in a practical, efficient manner. Thanks exactly what “good government” is supposed to do.

That the Trump Administration chooses to use laws selectively to create “bogus emergencies” and “engineer problems” where none existed, rather than solving problems in a way that promotes the common good, should be of concern to all of us who favor good government and humane solutions to humanitarian issues.

PWS

02-23-19

COURTING DISASTER: NEW AILA REPORT SHREDS DOJ’S “BUILT TO FAIL” IMMIGRATION COURT BACKLOG REDUCTION PROGRAM — “Malicious Incompetence” Turns Tragedy To Travesty! — McKinney, Lynch, Creighton, & Schmidt Do Press Conference Exposing Injustice, Waste, Abuse — Listen To Audio Here!

OUR TEAM:

Jeremy McKinney, Attorney, Greensboro, NC, AILA National Treasurer

Laura Lynch, Senior Policy Counsel, AILA,

Emily Creighton, Deputy Legal Director, American Immigration Council

Paul Wickham Schmidt, Retired U.S. Immigration Judge

Read the AILA Report (with original formatting) at the link below:

19021900

FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog February 21, 2019
Contact: Laura Lynch (llynch@aila.org) 1
On December 19, 2018, AILA and the American Immigration Council obtained a partially redacted memorandum through the Freedom of Information Act (FOIA), entitled the Executive Office for Immigration Review’s (EOIR) Strategic Caseload Reduction Plan (hereinafter “EOIR’s plan”). EOIR’s plan, which was approved by the Deputy Attorney General for the Department of Justice (DOJ) on October 31, 2017,2 states that the overarching goal was “to significantly reduce the case backlog by 2020.” 3 In the following months, DOJ and EOIR implemented the plan by rolling out several policy initiatives, including multiple precedent-setting opinions issued by then-Attorney General (AG) Jeff Sessions.
Contrary to EOIR’s stated goals, the administration’s policies have contributed to an increase in the court backlog which exceeded 820,000 cases at the end of 2018.4 This constitutes a 25 percent increase in the backlog since the introduction of EOIR’s plan.5 For example, the October 2017 memorandum reveals that EOIR warned DOJ that the Department of Homeland Security’s (DHS) potential activation of almost 350,000 low priority cases or cases that were not ready to be adjudicated could balloon the backlog.6 Nonetheless, then-AG Sessions ignored these concerns and issued a decision that essentially stripped immigration judges (IJs) of their ability to administratively close cases and compelled IJs to reopen previously closed cases at Immigrations Customs Enforcement’s (ICE) request.7
The policies EOIR implemented as part of this backlog reduction plan have severely undermined the due process and integrity of the immigration court system. EOIR has placed enormous pressure on IJs by setting strict case quotas on and restricting their ability to manage their dockets more efficiently. This approach treats the complex process of judging like an assembly line and makes it more likely that judges will not give asylum seekers and others appearing before the courts enough time to gather evidence to support their claims. People appearing before the courts will also have less time to find legal counsel, which has been shown to be a critical, if not the single most important factor, in determining whether an asylum seeker is able to prove eligibility for legal protection.
The foundational purpose of any court system must be to ensure its decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. Efforts to improve efficiency are also important but cannot be implemented at the expense of these fundamental principles. EOIR’s plan has not only failed to reduce the backlog but has eroded the court’s ability to ensure due process. Furthermore, EOIR’s plan demonstrates the enormous power DOJ exerts over the immigration court system. Until Congress creates an immigration court that is separate and independent from DOJ, those appearing before the court will be confronted with a flawed system that is severely compromised in its ability to ensure fair and consistent adjudications.
I. Background on EOIR’s Inherently Flawed Structure
The U.S. immigration court system suffers from profound structural problems that have severely eroded both its capacity to deliver just and fair decisions in a timely manner and public confidence in the system
AILA Doc. No. 19021900. (Posted 2/21/19)

itself.8 Unlike other judicial bodies, the immigration courts lack independence from the Executive Branch. The immigration courts are administered by EOIR, which is housed within DOJ – the same agency that prosecutes immigration cases at the federal level. This inherent conflict of interest is made worse by the fact that IJs are not classified as judges but as government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the AG, the chief prosecutor in immigration cases. The current administration has taken advantage of the court’s structural flaws, introducing numerous policies — including EOIR’s plan — that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.
II. Policies Identified in EOIR’s Plan
Administrative Closure
Stated Policy Goal: To reduce the case backlog and maximize docket efficiency, EOIR’s plan called for the strengthening of EOIR and DHS interagency cooperation.9 EOIR’s plan advised DOJ that “any burst of case initiation by a DHS component could seriously compromise EOIR’s ability to address its caseload and greatly exacerbate the current state of the backlog.”10
Reality: Despite EOIR’s warning, then-AG Sessions issued a precedent decision in Matter of Castro Tum,11 which contributed to a rise in the case backlog. This decision severely restricts a judge’s ability to schedule and prioritize their cases, otherwise known as “administrative closure” and even compels IJs to reopen previously closed cases at ICE’s request.12
Administrative closure is a procedural tool that IJs and the BIA use to temporarily halt removal proceedings by transferring a case from active to inactive status on a court’s docket. This tool is particularly useful in situations where IJs cannot complete the case until action is taken by USCIS or another DHS component, state courts and other authorities. Prior to the issuance of Matter of Castro Tum, numerous organizations, including the judges themselves, warned DOJ that stripping IJs of the ability to utilize this docket management tool “will result in an enormous increase in our already massive backlog of cases.”13 In fact, an EOIR-commissioned report identified administrative closure as a helpful tool to control the caseload and recommended that EOIR work with DHS to implement a policy to administratively close cases awaiting adjudication in other agencies or courts.14
Nonetheless, the former AG issued Matter of Castro Tum15 sharply curtailing IJs’ ability to administratively close cases. The decision even called for cases that were previously administratively closed cases to be put back on the active immigration court dockets.16 In August 2018, ICE directed its attorneys to file motions to recalendar “all cases that were previously administratively closed…” with limited exceptions—potentially adding a total of 355,835 cases immediately onto the immigration court docket.17 Three months later, ICE had already moved to recalendar 8,000 cases that had previously been administratively closed, contributing to the bloated immigration court case backlog.18 In response, members of Congress sent a letter to DOJ and DHS outlining their concerns about ICE’s plans to recalendar potentially hundreds of thousands of administratively closed cases, further clogging the system and delaying and denying justice to the individuals within it.19
Quotas and Deadlines
Stated Policy Goal: To expedite adjudications, EOIR’s plan calls for the development of caseload
management goals and benchmarks.20
Reality: EOIR imposed unprecedented case completion quotas and deadlines on IJs, that pressure judges to complete cases rapidly at the expense of balanced, well-reasoned judgment.21
2
AILA Doc. No. 19021900. (Posted 2/21/19)

At the time EOIR’s plan was issued, EOIR’s collective bargaining agreement with the National Association of Immigration Judges (NAIJ) prohibited “the use of any type of performance metrics in evaluating an IJ’s performance.”22 Despite opposition from NAIJ,23 DOJ and EOIR imposed case completion quotas and time-based deadlines on IJs, tying their individual performance reviews to the number of cases they complete.24 Among other requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.25 Disturbingly, DOJ unveiled new software, resembling a “speedometer on a car” employed to track the completion of IJs’ cases.26
Sample Image of “IJ Performance Data Dashboard”
(Source: Vice News)27
AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the NAIJ as a “death knell for judicial independence.”28 The purported argument for these policies is that it will speed the process up for the judges. However, applying this kind of blunt instrument will compel judges to rush through decisions and may compromise a respondent’s right to due process and a fair hearing. Given that most respondents do not speak English as their primary language, a strict time frame for completion of cases interferes with a judge’s ability to assure that a person’s right to examine and present evidence is respected.29
These policies also impact asylum seekers, who may need more time to gather evidence that is hard to obtain from their countries of origin, as well as unrepresented individuals, who may need more time to obtain an attorney. The Association of Pro Bono Counsel explained that the imposition of case completion quotas and deadlines “will inevitably reduce our ability to provide pro bono representation to immigrants in need of counsel.”30 Unrepresented people often face hurdles in court that can cause case delays, and scholars have concluded that immigrants with attorneys fare better at every stage of the court process.31 Furthermore, these policies compel IJs to rush through decisions may result in errors which will lead to an increase in appeals and federal litigation, further slowing down the process.
Continuances
Stated Policy Goal: To “streamline current immigration proceedings”32 and “process cases more
efficiently,”33 EOIR’s plan called for changes in the use of continuances in immigration court.34
Reality: The restrictions DOJ and EOIR placed on the use of continuances make it far more difficult for immigrants to obtain counsel and interfere with judges’ ability to use their own discretion in each case.
EOIR and DOJ introduced policies that pressure judges to deny more continuances at the expense of due process. In July 2017, the Chief IJ issued a memorandum which pressures IJs to deny multiple continuances, including continuances to find an attorney or for an attorney to prepare for a case.35 Following this policy change, then-AG Sessions issued the precedential decision, Matter of L-A-B-R- et al., interfering with an IJ’s ability to grant continuance requests and introducing procedural hurdles that will also make it harder for people to request and IJs to grant continuances.36
3
AILA Doc. No. 19021900. (Posted 2/21/19)

These policy changes weaken due process protections and contradict the agency’s plan to “improve existing laws and policies.” Continuances represent a critical docketing management tool for IJs and are a necessary means to ensure that due process is afforded in removal proceedings. The number one reason respondents request continuances is to find counsel, who play a critical role in ensuring respondents receive a fair hearing.37 Continuances are particularly important to recent arrivals, vulnerable populations (such as children), and non-English speakers—all of whom have significant difficulties navigating an incredibly complex immigration system. Furthermore, individuals represented by counsel contribute to more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, explained, “It is our experience, when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”38
Video Teleconferencing (VTC)
Stated Policy Goal: To expand its adjudicatory capacity, EOIR called for pilot VTC “immigration
adjudication centers.”39
Reality: EOIR expanded the use of VTC for substantive hearings undermining the quality of communication and due process.
A 2017 report commissioned by EOIR concluded that court proceedings by VTC should be limited to “procedural matters” because appearances by VTC may lead to “due process issues.”40 Despite these concerns, EOIR expanded use of VTC for substantive hearings. A total of fifteen IJs currently sit in two immigration adjudication centers—four in Falls Church, Virginia, and eleven in Fort Worth, Texas.41 IJs are currently stationed at these “centers” where they adjudicate cases from around the country from a remote setting.42
For years, legal organizations such as AILA and the American Bar Association (ABA) have opposed use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.43 Technological glitches such as weak connections and bad audio can make it difficult to communicate effectively, and 29 percent of EOIR staff reported that VTC caused meaningful delay.44 Additionally, VTC technology does not provide for the ability to transmit nonverbal cues. Such issues can impact an IJs’ assessment of an individual’s credibility and demeanor, which are significant factors in determining appropriate relief.45 Moreover, use of VTC for immigration hearings also limits the ability for attorneys to consult confidentially with their clients. No matter how high-quality or advanced the technology is that is used during a remote hearing, such a substitute is not equivalent to an in-person hearing and presents significant due process concerns.
IJ Hiring
Stated Policy Goal: In order to increase the IJ corps and reduce the amount of time to hire new
IJs, the former AG introduced a new, streamlined IJ hiring process.46
Reality: Following DOJ’s implementation of the streamlined IJ hiring process, DOJ faced allegations of politicized and discriminatory hiring47 that call into question the fundamental fairness of immigration court decisions.
On its face, the agency “achieved” its goal to quickly hire more IJs, reducing the time it takes to onboard new IJs by 74 percent and increasing the number of IJs on the bench from 338 IJs at the end of FY2017 to 414 IJs by the end of 2018.48 What these statistics do not reveal is that the new plan amended hiring processes to provide political appointees with greater influence in the final selection of IJs.49 In addition to procedural changes, DOJ also made substantive changes to IJ hiring requirements, “over-emphasizing litigation experience to the exclusion of other relevant immigration law experience.”50 Both Senate and
4
AILA Doc. No. 19021900. (Posted 2/21/19)

House Democrats requested an investigation with the DOJ Inspector General (IG) to examine allegations that DOJ has targeted candidates and withdrawn or delayed offers for IJ and BIA positions based on their perceived political or ideological views.51 These allegations are particularly troublesome given the influx in the number of IJs resigning and reports that experienced IJs are “being squeezed out of the system for political reasons.”52
Telephonic Interpreters
Stated Policy Goal: EOIR requested additional funding to support additional IJs on staff and to
improve efficiency.53
Reality: EOIR failed to budget for needed in-person interpreters54 resulting in the use of telephonic interpreters for most hearings, which raises concerns about hearing delays and potential communication issues.55
In April of 2017, an EOIR-commissioned report revealed that 31 percent of court staff reported that telephonic interpreters caused a meaningful delay in their ability to proceed with their daily responsibilities.56 With more than 85 percent of respondents in immigration court relying on use of an interpreter, EOIR’s decision to replace in-person interpreters with telephonic interpreters will undoubtedly make court room procedures less efficient.57 In addition, similar to many of the technological concerns cited with use of VTC, communication issues related to use of remote interpreters can jeopardize an immigrant’s right to a fair day in court. For example, it is impossible for telephonic interpreters to catch non-verbal cues that may determine the meaning of the speech.
III. Conclusion
The immigration court system is charged with ensuring that individuals appearing before the court receives a fair hearing and full review of their case consistent with the rule of law and fundamental due process. Instead of employing policies that propel the court toward these goals, the administration’s plan relies on policies that compromise due process. IJs responsible for adjudicating removal cases are being pressured to render decisions at a break-neck pace. By some accounts “morale has never, ever been lower” among IJs and their staff.58 Moreover, since the introduction of EOIR’s plan, the number of cases pending in the immigration courts has increased 25 percent (from 655,932 on 9/31/17 to 821,726 on 12/31/18). This number does not even account for the 35-day partial government shutdown that cancelled approximately 60,000 hearings while DHS continued carrying out enforcement actions.59 Congress must conduct rigorous oversight into the administration’s policies that have eroded the court’s ability to ensure that decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. But oversight is not enough. In order protect and advance America’s core values of fairness and equality, the immigration court must be restructured outside of the control of DOJ, in the form of an independent Article I court.60
900,000 800,000 700,000 600,000 500,000 400,000 300,000 200,000 100,000
0
792,738 821,726
655,932 521,416
460,021 430,095
356,246
PENDING IMMIGRATION CASES
EOIR Pending Cases
5
Pending cases equals removal, deportation, exclusion, asylum-only, and AILA Doc. No. w1it9hh0o2ld1in9g0o0nl.y. (Po
Source: Department of Justice
sted 2/21/19)

1 For more information, contact AILA Senior Policy Counsel Laura Lynch at (202) 507-7627 or llynch@aila.org.
2 *An earlier version of this policy brief, dated February 19, 2019, incorrectly stated that the memo was signed on October 17, 2017. This typo has been corrected. FOIA Response, see pg. 9.
3 On December 5, 2017, EOIR publicly issued a backgrounder for the EOIR Strategic Caseload Reduction Plan. U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
4 U.S. Department of Justice, EOIR Adjudication Statistics, Pending Cases, (Dec. 31, 2018). The over 820,000 cases does not account for the 35-day partial government shutdown that cancelled approximately 60,000 immigration court hearings while at the same time, DHS continued carrying out enforcement actions, Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
5 U.S. Department of Justice, Adjudication Statistics, Pending Cases, Dec. 31, 2018.
6 FOIA Response, see pg. 6.
7 Jason Boyd, The Hill, “8,000 new ways the Trump administration is undermining immigration court independence,” Aug. 19, 2018.
8 ABA Commission on Immigration, Reforming the Immigration System, Proposals to Promote the Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (2010).
9 FOIA Response, see pg. 6. See also U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
10 FOIA Response, see pg. 6.
11 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
12 Id.
13 NAIJ Letter to then-Attorney General Sessions, Jan. 30, 2018.
14 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017, pg. 26, [hereinafter “Booz Allen Report”].
15 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
16 Id.
17 ICE Provides Guidance to OPLA Attorneys on Administrative Closure Following Matter of Castro Tum, June 15, 2018.
18 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
19 Congressional Letter Requesting Information Regarding Initiative to Recalendar Administratively Closed Cases, Sept. 13, 2018.
20 FOIA Response, see pg. 5.
21 Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
22 FOIA Response, see pg. 5.
23 Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
24 FOIA Response, pg. 5. See also Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018. See also Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
25 See Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
26 C-SPAN, Federal Immigration Court System, Sept. 21, 2018. (“[t]his past week or so, they [EOIR] unveiled what’s called the IJ dashboard…this mechanism on your computer every morning that looks like a speedometer on a car… The goal is for you to be green but of course you see all of these reds in front of you and there is a lot of anxiety attached to that.” NAIJ President, Judge A. Ashley Tabaddor).
27 Ani Ucar, Vice News, “Leaked Report Shows the Utter Dysfunction of Baltimore’s Immigration Court,” Oct. 3, 2018.
28 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges (October 2017).
29 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence.
6
AILA Doc. No. 19021900. (Posted 2/21/19)

30 Association of Pro Bono Counsel (APBCo), Letter to Congress IJ Quotas, Oct. 26, 2017.
31 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court (2016).
32 U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017, pg. 2.
33 FOIA Response, pg. 8.
34 FOIA Response, pgs. 7-8.
35 U.S. Department of Justice, Operating Policies and Procedures Memorandum 17-01: Continuances, July 31, 2017. 36 Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018).
37 GAO Report, 17-438, Immigration Courts, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, (June 2017).
38 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
39 FOIA Response, pg. 3.
40 Booz Allen Report, pg. 23.
41 U.S. Department of Justice, EOIR Immigration Court Listings, Feb. 2019.
42 Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
43 AILA Comments on ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Letter to ACUS, Feb. 17, 2012.
44 Booz Allen Report, pg. 23.
45 An EOIR commissioned report suggested limiting use of VTC to procedural matters only because it is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC. Booz Allen Report, pg. 23.
46 FOIA Response, pg. 3.
47 Priscilla Alvarez, The Atlantic, Jeff Sessions is Quietly Transforming the Nation’s Immigration Courts, Oct. 17, 2018.
48 U.S. Department of Justice, EOIR Adjudication Statistic, IJ Hiring, (Jan. 2019).
49 U.S. Department of Justice, EOIR Announces Largest Ever Immigration Judge Investiture, Sept. 28, 2018; Document Obtained via FOIA by Human Rights First, Memorandum for the Attorney General, Immigration Judge Hiring Process, Apr. 4, 2017.
50 Strengthening and Reforming America’s Immigration Court System, Hearing Before Subcommittee on Border Security and Immigration, of the Senate Committee on the Judiciary, 115th Cong. 5 (2018) (A. Ashley Tabaddor, President, NAIJ), See also Questions for the Record.
51 Senate and House Democrats Request IG Investigation of Illegal Hiring Allegations at DOJ, May 8, 2018. Problematic hiring practices are not new for this agency. Over a decade ago, the IG and the Office of Professional Responsibility revealed that then-Attorney General Alberto Gonzales utilized political and ideological considerations in the hiring of IJ and BIA candidates. U.S Department of Justice IG Report, (2008).
52 Hamed Aleaziz, BuzzFeed News, Being an Immigration Judge Was Their Dream. Under Trump, It Became Untenable, Feb. 13, 2019.
53 FOIA Response, pg. 3.
54 NAIJ Letter to Senators, Government Shutdown, Jan. 9, 2019.
55 Id.
56 Booz Allen Report, pg. 25.
57 Laura Abel, Brennan Center For Justice, Language Access in Immigration Courts, (2010).
58 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
59 Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
60 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
7
AILA Doc. No. 19021900. (Posted 2/21/19)

Here’s the link to the audio:

https://www.aila.org/infonet/aila-press-call-on-eoir-memo-obtained-via-foia

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

Here’s “simul-coverage” from LA Times star reporter Molly O’Toole:

https://www.latimes.com/politics/la-na-pol-immigration-court-backlog-worsens-20190221-story.html

The Trump administration’s controversial plan to shrink the ballooning backlog of immigration cases by pushing judges to hear more cases has failed, according to the latest data, with the average wait for an immigration hearing now more than two years.

Since October 2017, when the Justice Department approved a plan aimed at reducing the backlog in immigration court, the pending caseload has grown by more than 26%, from 655,932 cases to just shy of 830,000, according to Syracuse University’s Transactional Access Records Clearinghouse, which tracks data from immigration courts.

Even that figure likely understates the backlog because it doesn’t include the impact of the 35-day government shutdown in December and January. Because the system’s roughly 400 immigration judges were furloughed during the shutdown, some 60,000 hearings were canceled. Thousands were rescheduled, adding to the already long wait times.

The administration “has not only failed to reduce the backlog, but has eroded the court’s ability to ensure due process” by pressuring judges to rule “at a breakneck pace” on whether an immigrant should be removed from the United States, the American Immigration Lawyers Assn. — a nonprofit organization of more than 15,000 immigration attorneys and law professors — said in a statement.

When the Justice Department’s Executive Office of Immigration Review, which administers immigration courts, released its plan, officials described it as a “comprehensive strategy for significantly reducing the caseload by 2020,” according to a partially redacted copy of an October 2017 memo obtained by the immigration lawyers group through a Freedom of Information Act request.

“The size of EOIR’s pending caseload will not reverse itself overnight,” the memo said, but by fully implementing the strategy, the office can “realistically expect not only a reversal of the growth of the caseload, but a significant reduction in it.”

Instead, the average wait has grown by a month from January alone, to 746 days — ironically extending the stay of thousands of migrants whom the administration might want to deport from the United States. The Justice Department declined to immediately comment on the growth of the backlog.

The number of pending immigration cases has risen dramatically in recent years, doubling from less than 300,000 in 2011 to 650,000 by December 2017, the end of Trump’s first year in office, according to the Justice Department.

The Trump administration has blamed the ballooning backlog on President Obama’s immigration policies, saying that “policy changes in recent years have slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.”

Administration officials have pointed to Obama’s effort to focus deportation on immigrants with serious criminal records and protecting certain immigrants known as Dreamers who were brought to the U.S. as children as examples of policies that have provided incentives for illegal border crossings.

The administration’s plan to reverse the backlog included a number of controversial steps.

One move restricted the ability of immigration judges to schedule and set priorities for their cases under a process known as “administrative closure.” That change compelled judges to reopen thousands of cases that had been deemed low priority and had been closed. Within three months of the memo, Immigration and Customs Enforcement had moved to reschedule 8,000 cases, prompting concern from lawmakers, according to the immigration lawyers association. Potentially, as many as 350,000 cases ultimately could be added back onto the court dockets.

The administration’s plan also tied immigration judges’ individual performance reviews to the number of cases they complete, calling for them to finish 700 removal cases in the next year.

In contrast to regular courts, immigration judges are not independent; they’re part of the Justice Department. Because of that, the attorney general is both the chief prosecutor in immigration cases and the ultimate boss of the judges, who are classified as government attorneys.

The National Assn. of Immigration Judges, as well as the immigration lawyers association and other groups, have long called for Congress to end what they see as a built-in conflict of interest and create an immigration court separate from the Justice Department.

“As long as we continue to allow the court to be used as a law enforcement tool,” said Ashley Tabaddor, president of the National Assn. of Immigration Judges, “you’re going to get these kinds of backlogs and inefficiencies.”

Any speedup that may have resulted from the imposition of quotas on the judges has been overtaken by the administration’s stepped-up enforcement efforts, which have pushed thousands of new cases into the system.

Stepped-up enforcement without a corresponding increase in judicial resources provides the main reason the backlog has gone up so dramatically, said Stephen Legomsky, Homeland Security’s chief counsel for immigration from 2011 to 2013.

“Immediately upon taking office, President Trump essentially advised Border Patrol agents and ICE officers that they were to begin removal proceedings against anyone they encountered that they suspected of being undocumented, without sufficiently increasing resources for immigration judges,” Legomsky said.

Under previous administrations, “the thinking was, ‘Let’s not spend our limited resources on people who are about to get legal status,’” he said, “Taking that discretion away dramatically increased the caseload.”

Some officials warned that could happen when the effort to curtail the backlog began.

“Any burst of case initiation,” by Homeland Security “could seriously compromise” the Justice Department’s “ability to address its caseload and greatly exacerbate the current state of the backlog,” the acting director of the immigration review office wrote in the October memo to Deputy Atty. Gen. Rod Rosenstein.

The quota effort could also prevent attorneys from providing representation to immigrants, according to the Assn. of Pro Bono Counsel, which represents lawyers who handle cases free of charge for the poor.

Whether immigrants have legal representation makes a huge difference in the outcome of cases: Between October 2000 and November 2018, about 82% of people in immigration court without attorneys were either ordered deported or gave up on their cases and left the country voluntarily, while only 31% of those with lawyers were deported or left.

The administration has succeeded in speeding the hiring of new immigration judges by 74%. The number of immigration judges has grown from 338 when the plan was introduced to 414 by the end of 2018.

Lawmakers have raised concerns that some of those new hires have been politically motivated. In May, House Democrats requested an investigation by the Justice Department Inspector General’s office into allegations that candidates have been chosen or rejected for perceived ideological views.

“The current administration has taken advantage of the court’s structural flaws,” the immigration lawyers association wrote, “introducing numerous policies … that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.”

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

My Takeaways:

The DOJ politicos made the already bad situation immeasurably worse;
At no time did any of those supposedly “in charge” seriously consider taking measures that could have promoted Due Process and fundamental fairness in a troubled system whose sole function was to insure and protect these Constitutional requirements;
Sessions was warned about the severe adverse consequences of eliminating “administrative closure” by EOIR, but went ahead with his preconceived “White Nationalist” agenda, based on bias, not law;
Deputy Attorney General Rod Rosenstein, who signed off on this monstrosity, is no “hero” just because he stood up to Trump on the Mueller investigation; he’s just another “go along to get along,” like the rest of the Trump DOJ political appointees (with the possible exception of FBI Director Chris Wray);
No sitting judge, indeed no real “stakeholder,” was consulted about these “designed to fail” measures;
The placement of what purports to be a “court system” dedicated to Due Process within the Justice Department is preposterous;
Congress, which created this parody of justice, and the Article III Courts who have failed to “just say no” to all removal orders produced in this “Due Process Free Zone” must share the blame for allowing this Constitutionally untenable situation to continue;
Once again, the victims of the Trump Administration’s “malicious incompetence” are being punished while the “perpetrators” suffer few, if any, consequences.

PWS

02-21-19

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

UPDATE: Molly’s article was the “front page lead” in today’s print edition of the LA Times.

https://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Gotta give the crew at DOJ/EOIR HQ credit for screwing this up so royally that it’s now off the “back pages” and into the headlines where it belongs. You couldn’t buy publicity like this!

First EOIR Director David “No News Is Good News” Milhollan must be rolling over in his grave right now. And his “General Counsel/Chief Flackie,” my friend and former BIA Appellate Judge Gerald S. “No Comment/We Don’t Track That Statistic” Hurwitz must be watching all of this with amusement and bemusement from his retirement perch. Just goes to support the “Milhollan/Hurwitz Doctrine” that “only bad things can happen once they know you exist.”

PWS

02-22-19

AMERICAN MORASS: Trump Administration’s Breathtaking “Malicious Incompetence” Masks True Extent Of Immigration Court Disaster, Makes Accountability Impossible – See The Latest From TRAC!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

The latest available data from the Immigrant Court indicates that as of February 1, 2019 the court is still playing catch up in the aftermath of the five-week partial government shutdown. It is therefore still too early to get an accurate reading of just how much larger the backlog has grown, or how much longer court delays will be before canceled hearings can be rescheduled.

Available data thus far indicate that somewhere between 80,051 and 94,115 hearings may have been cancelled. However, many entries for scheduled hearings that weren’t held have yet to be marked as canceled in the court’s records leaving some uncertainty in the final tally.

Another troubling indicator of how far court staff are behind is that relatively few new filings were recorded since the shutdown began. Even based on these albeit incomplete records, the backlog has already grown to 829,608. But until new filings are recorded, any new DHS actions seeking removal orders aren’t reflected in this backlog count. After that, huge volumes of hearings will need to be rescheduled. Only then will a proper accounting of the full impact of the shutdown be possible.

For more details on these preliminary figures, see:

https://trac.syr.edu/immigration/reports/546/

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

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

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

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

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

http://facebook.com/tracreports

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

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

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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

Time for some meaningful House Oversight of this national disgrace! Any DOJ witness who tries to blame this largely self-created disaster on migrants, their lawyers, Immigration Judges, or court staff, or who claims the solution is slashing rights, more detention, or making judges “pedal faster” should be referred for prosecution for lying to Congress under oath!

It also would be a good idea to get some folks like Susan Long and David Burnham from TRAC, the Center for Migration Studies, AILA, Human Rights First, the Heartland Alliance, the Women’s Refugee Committee, ACLU, and the ABA in to inform Congress as to how the DOJ and EOIR have been manipulating and hiding (perhaps even intentionally falsifying) “statistics” to portray a false White Nationalist anti-immigrant restrictionist narrative developed for Trump by Miller, Sessions, and Nielsen, but likely to continue under Barr.

Barr probably wants a “real job” and at least some of his reputation back after he’s finished with his stint as A.G./Trump Legal Apologist. So, his incentive not to perjure himself in front of Congress is probably greater than for some of the other Trump enablers who are used to basically “getting away with murder” with non-existent GOP oversight over the past two years.

Even if Congress and the law don’t hold these folks accountable for their wanton destruction of American institutions, history will. So, it’s important to make the record for the future. “We are all witnesses.”

PWS

02-19-19

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ANOTHER PERSPECTIVE: There Is Nothing Inherently Wrong With TPS Or DED — But, There Is Plenty Wrong With The Trump Administration’s Mistreatment Of 800 Long-Term Residents From Liberia

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

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