WNYC – immigrationcourtside.com

COURTS OF INJUSTICE: How Systemic Bias, Bad Precedents, Gross Mismanagement, & Poor Decision-Making Threaten Lives In Immigration Court — What Should Be “Slam Dunk” Grants Of Protection Are Literally “Litigated To Death” Adding To Backlogs While Mocking Justice! — Featuring Quotes From “Roundtable” Leader Hon. Jeffrey Chase!

Beth Fertig
Senior Reporter
Immigration, Courts, Legal
WNYC & The Gothamist

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

https://gothamist.com/news/they-fled-gang-violence-and-domestic-abuse-nyc-immigration-judge-denied-them-asylum

Beth Fertig reports for WNYC:

They Fled Gang Violence And Domestic Abuse. An NYC Immigration Judge Denied Them Asylum

BY BETH FERTIG, WNYC

SEPT. 26, 2019 5:00 A.M.

Seventeen year-old Josue and his mom, Esperanza, were visibly drained. They had just spent more than four hours at their asylum trial inside an immigration court at 26 Federal Plaza in Lower Manhattan, answering questions from their attorney and a government lawyer. We are withholding their full names to protect their identities because they’re afraid.

“It was exhausting,” said Josue, whose angular haircut was neatly combed for the occasion. In Spanish, he told us the judge seemed nice but, “you feel bad if you don’t know if you are going to be allowed to stay or if you have to go.”

The teen and his mother crossed the U.S. border in California in the summer of 2018. At the time, a rising number of families were entering the country, and the Trump administration wanted to send a message to them by swiftly deporting those who don’t qualify for asylum. But immigration judges are so busy, they can take up to four years to rule on a case. In November, judges in New York and nine other cities were ordered to fast track family cases and complete them within a year.

This is how Esperanza and Josue wound up going to trial just 10 months after they arrived in the U.S. and moved to Brooklyn. They were lucky to find attorneys with Central American Legal Assistance, a nonprofit in Williamsburg that’s been representing people fleeing the troubled region since 1985.

Listen to reporter Beth Fertig’s WNYC story on Josue and Esperanza’s cases.

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Winning asylum was never easy. But in 2018, former Attorney General Jeff Sessions made it tougher for people like Josue and Esperanza when he issued his own ruling on an immigration case involving a woman from El Salvador who was a victim of domestic violence. He wrote: “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

Immigration judges were bound to give heavy weight to that ruling. Their courts are run by the Department of Justice, whose boss is the Attorney General. And the AG’s boss, President Trump, frequently asserts that too many migrants lie about being threatened by gangs when they’re just coming for jobs. “It’s a big fat con job, folks,” he said at a Michigan rally this year.

Esperanza and Josue went to court soon after Sessions’ decision. She was fighting for asylum as a victim of domestic abuse; Josue claimed a gang threatened his life. Both would eventually lose their cases.

Josue’s case

Esperanza and Josue are typical of the Central American families seeking asylum these days, who say they’re escaping vicious drug gangs, violence and grinding poverty. The two of them came from a town outside San Pedro Sula, one of the most dangerous cities in the world.

During their trial, Josue testified under oath about how gang members repeatedly approached him outside his high school, asking him to sell drugs to the other students. He tried to ignore them, and gave different excuses for resisting, until one day when they spotted him playing soccer and became more aggressive. That’s when he said the gang leader put a gun in his face.

“He told me that if I didn’t accept what he wanted he was going to kill my whole family, my mother and sister,” he said, through a Spanish interpreter.

“I was in shock,” he said. “I had no other choice to accept and said yes.”

He told his mother and they left Honduras the next day. When Josue’s lawyer, Katherine Madison, asked if he ever reported the threat to the police he said no. “That was practically a suicide,” he said, explaining that the police are tied to the gang, because it has so much power.

Josue said his older sister later moved to Mexico because she was so afraid of the gang.

Winning asylum is a two-step process. You have to prove that you were persecuted, and that this persecution was on account of your race, religion, nationality, social group or political opinion. Madison, Josue’s attorney, argued that in Honduras, defying gangs is a risky political statement.

“They function in many ways as the de facto government of the areas where people like Josue lived,” she told WNYC/Gothamist, summing up the arguments she submitted to the judge. “They make rules. They charge basically taxes, they say who can live there and who can’t.”

And they’re known to kill people who don’t obey.

In her ruling, issued in August, Immigration Judge Oshea Spencer found Josue did experience persecution. But she denied his application for asylum. She said much of what he described “were threats and harm that exist as part of the larger criminal enterprise of the gangs in Honduras and not on the basis of any actual or perceived opposition to the gangs.”

Esperanza’s case

Esperanza’s attorney argued that her life was at risk because the gang member threatened Josue’s family. But Spencer didn’t find that specific enough. She wrote that the gang members “were motivated by their efforts to expand their drug trade, not the family relationship.” Among other cases, she referred to a recent decision by the current Attorney General, William Barr, that makes it harder for the relatives of someone who’s been threatened to win asylum.

Esperanza also lost on a separate claim that she deserved asylum because she was repeatedly beaten by Josue’s father. In court, she testified about years of abuse culminating in an incident in which he chased her with a machete. She said she couldn’t get the police to issue a restraining order, and said he kept threatening her after she moved to another town to stay with relatives.

Madison argued that women like Esperanza belong to a persecuted social group: they can’t get help from the authorities in Honduras because they’re viewed as a man’s property. The country is one of the deadliest places to be a woman; police are known to ignore complaints; and it’s extremely hard for women to get justice.

But Spencer ruled that there is no persecuted social group made up of “Honduran women who are viewed as property” for being in a domestic relationship.

Echoing the Sessions’ ruling, the judge said these categories “all lack sufficient particularity,” and called them “amorphous” because they could be made up of a “potentially large and diffuse segment of society.”

She also cited evidence submitted by the government that showed conditions in Honduras are improving for women. This evidence came from a 2018 State Department report on human rights in Honduras. Immigration advocates claim it’s been watered down from the much harsher conditions described in the last report from 2016. It’s also much shorter in length.

Jeffrey Chase, an immigration lawyer and former New York immigration judge, said it’s not surprising that Esperanza and Josue would each lose asylum. Judge Spencer only started last fall and is on probation for her first two years in the job.

“This was decided by a brand new judge who didn’t have any immigration experience prior to becoming an immigration judge,” he said, referring to the fact that Spencer was previously an attorney with the Public Utility Commission of Texas. He said she went through training which, “These days, includes being told that we don’t consider these to be really good cases.”

Sitting judges don’t talk to the media but Chase noted that they must consider the facts of each individual case, meaning the former Attorney General’s ruling doesn’t apply to all cases. He noted that some women who were victims of abuse are still winning asylum. He pointed to a case involving a Guatemalan woman who was raped by her boss. A Texas immigration judge found she did fit into a particular social group as a woman who defied gender norms, by taking a job normally held by a man.

During Josue and Esperanza’s trial, there was a lot of back and forth over their individual claims. A trial attorney from Immigration and Customs Enforcement questioned why Esperanza didn’t contact the police again after moving to another town, where she said her former partner continued to threaten her. Esperanza said it was because her brother chased him away and the police “don’t pay attention to you.”

The ICE attorney also asked Josue if his father was physically violent with anyone besides Esperanza. Josue said he did fight with other men. San Diego immigration lawyer Anna Hysell, who was previously an ICE trial attorney, said that could have hurt Esperanza’s case.

“The government was able to make the arguments that he didn’t target her because of being a woman that was in his relationship,” she explained. “He just was probably a terrible person and targeted many people.”

Hysell added that this was just her analysis and she wasn’t agreeing with the decision.

Attorney Anne Pilsbury said she believes Esperanza would have won her case, prior to the asylum ruling by Sessions, because she suffered years of abuse. But she said Josue would have had a more difficult time because gang cases were always tough. And like a lot of migrants, Josue had no evidence — he was too afraid to go to the cops. Pilsbury said immigration judges are even more skeptical now of gang cases.

“They’re getting so that they won’t even think about them,” she said. “They aren’t wrestling with the facts. They’re hearing gang violence and that’s it.”

She said Judge Spencer does sometimes grant asylum, and isn’t as harsh as other new judges. New York City’s immigration court used to be one of the most favorable places for asylum seekers. In 2016, 84 percent of asylum cases were granted. Today, that figure has fallen to 57 percent, according to TRAC at Syracuse University. Meanwhile, the government is forcing migrants to wait in Mexico for their immigration court cases or seek asylum in other countries before applying in the U.S., as the national backlog of cases exceeds one million.

Pilsbury, who founded Central American Legal Assistance in 1985, said immigration courts are now dealing with the result of a regional crisis south of the border that’s never been properly addressed since the wars of the 1980s.

“The anti-immigrant people feel it’s broken because people get to come here and ask for asylum and we feel it’s broken because people’s asylum applications aren’t seriously considered,” she explained. “We should be doing more to understand what’s going on in those countries and what we can do to help them address the chronic problems.”

Esperanza and Josue’s cases will now be appealed. Madison said she believes the judge ignored some of her evidence about gangs. She’s now turning to the Board of Immigration Appeals. However, it’s also controlled by the Justice Department — meaning the odds of getting a reversal are slim. If they lose again, the family can go to a federal circuit court which may have a broader definition of who’s eligible for asylum.

But Esperanza and Josue won’t be deported as long as their case is being appealed. On a late summer day, they seemed relaxed while sitting in a Brooklyn park. Esperanza talked about how happy she is that Josue is safe at his public high school, and can even ride a bike at night with his friends.

“He goes out and I’m always trusting the Father that just as he goes out, he comes back,” she said.

Even if they knew they would lose their asylum case, both said they still would have come to the U.S. because the risk of staying in Honduras was too great. Josue said the gang would definitely find him if he ever returned because their networks are so deep throughout the country. He’s now taking the long view. He knows there will be a Presidential election next year.

“It’s like a game of chess,” Josue said. “Any mindset can change at any moment. Maybe Trump changes his mind or maybe not. But I would have always made the decision to come.”

With translation assistance from Alexandra Feldhausen, Lidia Hernández-Tapia and Andrés O’Hara.

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

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CORRECTION: An earlier version of this posting incorrectly identified Beth’s network affiliation. She reports for WNYC.

By clicking on the link at the top and going to Beth’s article on The Gothamist, you will be able to get a link to the original WNYC audio broadcast of this story.

It’s not “rocket science.” Better, fairer outcomes were available that would have fulfilled, rather than mocked, our obligation to provide Due Process and protection under our own laws and international treaties.

Here’s how:

Esperanza’s claim is a clear asylum grant for “Honduran women” which is both a “particular social group” (“PSG”) and a persecuted group in Honduras that the government is unwilling or unable to protect.
- Here’s a much better recent decision along those lines from Judge Howard Hom of the same Immigration Court granting a very similar case based on the PSG of “Guatemanlan women.” https://immigrationcourtside.com/2019/09/19/the-good-news-gender-based-asylum-claims-continue-to-win-in-the-post-a-b-era-the-bad-news-applicants-subjected-to-let-em-die-in-mexico-compl/
Although the last two Administrations have intentionally twisted the law against Central American asylum seekers, Josue has a clear case for asylum as somebody for whom opposition to gang violence was an “imputed political opinion” that was “at least one central reason” for the persecution. See, e.g, https://www.jeffreyschase.com/blog/2018/6/3/3rd-generation-gangs-and-political-opinion.
In any event, on this record, Josue clearly showed that he faced a probability of torture by gangs with the acquiescence of the Honduran government, and therefore should have been granted mandatory protection by the Immigration Judge under the Convention against Torture (“CAT”).
The Immigration Judge’s assertion that things are getting better for women in Honduras, one of the world’s most dangerous countries for women where femicide is rampant, not only badly misapplies the legal standard (“fundamentally changed conditions that would eliminate any well founded fear”) but is also totally disingenuous as a factual matter. See, e.g., https://www.nytimes.com/interactive/2019/04/05/opinion/honduras-women-murders.html.
Additionally, Honduras remains in a state of armed conflict. See, e.g., https://www.tandfonline.com/doi/full/10.1080/23740973.2019.1603972?needAccess=true. Under an honest Government, granting TPS to Hondurans (as well as Salvadorans and Guatemalans affected by environmental disasters heightened by climate change) would be more than justified.
Under honest Government following the rule of law, well-documented cases like this one could be quickly granted by the USCIS Asylum Officer or granted on stipulation in short hearings in Immigration Court. Many more Central Americans could be granted CAT relief, TPS, or screened and approved for asylum abroad. They could thereby be kept off of Immigraton Court dockets altogether or dealt with promptly on “short dockets” without compromising anybody’s statutory or constitutional rights (compromising individual rights is a “specialty” of all the mostly ineffective “enforcement gimmicks” advanced by the Trump Administration).
Over time, the overwhelming self-inflicted Immigration Court backlogs caused by the Trump Administration’s “maliciously incompetent” administration of immigration laws (e.g., “Aimless Docket Reshuffling”) would be greatly reduced.
- That, in turn, would allow the Immigration Courts to deal with cases on a more realistic timeline that would both aid rational, non-White-Nationalist immigration enforcement and provide real justice for those seeking protection under our legal system.
As I’ve said before, it’s not “rocket science.” All it would take is more honest and enlightened Government committed to Due Process, good court management, and an appropriate legal application of laws relating to refugees and other forms of protection. I doubt that it would cost as much as all of the bogus “enforcement only gimmicks” now being pursued by Trump as part of his racist, anti-migrant, anti-Hispanic agenda.
Poor judicial decision making, as well illustrated by this unfortunate wrongly decided case, not only threatens the lives of deserving applicants for our protection, but also bogs down an already grossly overloaded system with unnecessarily protracted litigation and appeals of cases that should be “clear grants.”
Contrary to the intentionally false “party line” spread by “Big Mac With Lies” and other corrupt Trump sycophants at the DHS and the DOJ, a much, much higher percentage, probably a majority, of asylum applicants from the Northern Triangle who apply at our Southern Border should properly be granted some type of legal protection under our laws if the system operated in the fair and impartial manner that is Constitutionally required. The Trump Administration aided by their sycophants and enablers, all the way up to the feckless Supremes, are literally “getting away with murder” in far, far too many instances.
Consequently, quickly identifying and granting relief to the many deserving applicants would be a more efficient, humane, and lawful alternative to the “Kill ‘Em Before They Get Here” deterrence programs being pursued by Trump, with the complicity of the Supremes, the Ninth Circuit, and some of the other Federal Circuit Courts who have been afraid to put a stop to the extralegal nonsense going on in our Immigraton Courts, detention centers (the “New American Gulag”), our Southern Border, and countries like Mexico, El Salvador, Guatemala, and El Salvador where we are basically encouraging extralegal abuses and gross human right violations against migrants. It will eventually come back to haunt our nation, or whatever is left of our nation after Trump and his gang of White Nationalist thugs, supporters, appeasers, apologists, and enablers, are done looting and destroying it.

PWS

09-30-19

BETH FERTIG @ WNYC/NPR: Judges Under Artificially Enhanced Stress: A Portrait Of The Newer Judges At The New York Immigration Court

https://www.wnyc.org/story/presiding-under-pressure/

On a weekday morning inside 26 Federal Plaza, you’ll see hundreds of people waiting in lines outside the small immigration courtrooms housed on the 12th and 14th floors. These hallways and courtrooms have no windows, making the place feel even more claustrophobic as guards remind everyone to stand against the walls to avoid blocking traffic.

In this bureaucratic setting, you’ll meet people from Central America, China, India and Eastern Europe all trying to stay in the U.S. Parents clutch the tiny hands of toddlers who want to run and play. Inside the court rooms, mothers hold crying babies on their laps and parents with large families cluster their children around them once they’re seated before a judge.

It’s a pressure cooker. Not only because each immigrant’s fate eventually will be decided here, but because judges complain their jobs have never been busier or more politicized. There’s a backlog of almost 900,000 cases, according to TRAC. The Justice Department, which oversees the immigration court system, established a quota for judges to complete 700 cases per year, an especially high hurdle in New York City, according to a WNYC analysis, because it’s the nation’s busiest immigration court. Meanwhile, the judges have new constraints in their ability to grant asylum because former Attorney General Jeff Sessions decided certain cases are not eligible. Judges are now granting asylum less often — even in New York, where immigrants historically had an easier time winning. Many judges and lawyers believe these actions show how the immigration court is becoming a vehicle for President Trump’s immigration agenda.

In a city where about 40 percent of residents were born abroad, New Yorkers have passionate views on immigration. Yet, few get to see where immigrants learn an often life-or-death decision. Trials are closed to the public, and sitting judges are not allowed to speak to the media. WNYC spent months in the main immigration court at Federal Plaza observing hearings to see how judges are handling new pressures, and how they interact with immigrants and lawyers (most of whom wanted to remain anonymous because they don’t want to hurt their cases). We focused on new judges who have taken the bench since Trump became president.

Here is what we learned.

Judges Who Worked for ICE or the Justice Department

Judges Lena Golovnin, Maria Lurye, Lisa Ling and Jem Sponzo.

(Jane Rosenberg for WNYC)

Eighteen judges in New York City started since Trump took office — almost half of all immigration judges here. Those new hires are under probation their first two years, putting them under extra pressure to meet priorities set by the Justice Department. Eight judges were lawyers at Immigration and Customs Enforcementand another had a similar role at the Justice Department. Their old jobs were to make the government’s case for deporting immigrants. Now, they’re supposed to be neutral adjudicators.

Lena Golovnin worked for ICE before starting as a judge in August 2018. From the bench, she speaks briskly and is very polite when handling 50-100 procedural hearings in a morning, typical for New York judges. Judges also schedule trial dates during these hearings but the backlog is so long, some won’t happen until 2023.

During a visit to her courtroom in December, Golovnin was stern with an attorney whose 16-year-old client didn’t provide school records to excuse himself from court that day. Minors don’t have to come to court if they’re enrolled in school, but proof is needed. “I’m not happy,” Golovnin said, noting the boy could have asked his school to fax the records to court.

The boy’s lawyer asked for an extra day to provide the records, but the government trial attorney objected. Golovnin then ordered the boy removed in absentia. This did not mean he’d be immediately deported because his lawyer could apply to reopen the case. But several attorneys and former judges said this was harsh, and that a more seasoned judge would have given the lawyer and client an extra day.

Some immigration lawyers worry too many judges come from ICE, but they acknowledge that experience doesn’t automatically bias them against immigrants. One lawyer called Golovnin a “delightful person” who should be a good judge. The Justice Department had a history long before Trump of hiring ICE attorneys as judges because of their immigration trial experience.

“I would much rather have a trial attorney as a judge,” said Stan Weber, a former ICE attorney who is now an immigration lawyer in Brooklyn. “I know that personally,” he said, adding that of the former ICE trial attorneys on the bench, “many of them I helped train.”

It’s difficult to measure which judges are more favorable to immigrants, but one factor is how often they grant asylum. This data is collected by TRAC and updated once a year. Not all new judges had completed enough cases to measure, but others did.

Judge Jem Sponzo came from the Justice Department’s Office of Immigration Litigation. She was appointed at the end of the Obama administration and took the bench in 2017. TRAC calculated she grants asylum about 69 percent of the time — a little lower than average for New York City’s court, which was more than 80 percent before Trump took office. Another judge, Paula Donnolo, had a grant rate of 80 percent. She left suddenly in March before her two-year probation period ended. Neither the Justice Department, Donnolo nor her union would comment.

Judges Donald Thompson, Michael McFarland, Cynthia Gordon and James McCarthy all used to work for ICE.

(Jane Rosenberg for WNYC)

Judge James McCarthy started in July 2017 and his asylum grant rate is 36 percent. McCarthy can seem gruff and no nonsense but he has a hearty laugh. In December, one attorney had a complicated case involving two teenage brothers in foster care, neither of whom came to court. When McCarthy gave the boys another court date, the government’s lawyer objected to granting them extra time without a prior discussion. The judge ignored this objection, adding “it’s in the best interest of the children” for them to get another day in court.

He also pushed back at a government lawyer’s line of questioning during an African man’s deportation trial. The wife testified that her husband had become more mature since committing minor crimes in his youth plus a felony conviction for robbery. The government lawyer asked her, “Have you ever heard the expression ‘talk is cheap’?” Judge McCarthy reproached her with, “that’s not a question.”

According to TRAC, Judge Donald Thompson granted asylum to 75 percent of immigrants in the last year. Not surprisingly, immigration lawyers call him “a wonderful judge.” One attorney in Thompson’s courtroom was representing a Nigerian woman seeking asylum, because she claimed to be a victim of female genital mutilation. She was given a trial date in May 2021. When the attorney expressed a desire to go sooner, Thompson found a date in September.

Taramatee Nohire came to Judge Lisa Ling’s court one day in December. She’s seeking asylum because she claims she’ll be persecuted in her native Trinidad for being a Kali worshipper. “I was a bit nervous,” she said, about going to immigration court. She was still collecting documents that are hard to obtain. “That also made me have anxiety,” she added. Her attorney, Pertinderjit Hora, was glad when Ling scheduled the trial for November, giving her more time to prepare the case. She expected the newly-minted judge to be scheduling cases even sooner.

In trials, judges have to listen to hours of testimony by immigrants and their witnesses — often with the help of a translator. During one asylum trial, Judge Cynthia Gordon asked many detailed questions of a Central American woman who claimed she was a victim of domestic abuse. The woman’s attorney said the judge’s questions made it feel like there were two trial attorneys in the room.

Another judge who formerly worked for ICE, Susan Beschta, started as a punk rocker before becoming a lawyer. She was hired last fall and died this month.

Judges Who Used to Represent Immigrants

Judges Howard Hom, Maria Navarro and Charles Conroy.

(Jane Rosenberg for WNYC)

Although the Department of Justice selects many ICE attorneys as judges, it also chooses lawyers who have represented immigrants, as well as those who have worked in various government agencies.

Judge Charles Conroy worked for the Legal Aid Society and was an immigration lawyer in private practice. He wrote a play called “Removal” that was performed at the Manhattan Repertory Theatre in 2015. It was described as a legal drama on its website.

“Two immigrants find themselves caught up in America’s deportation system — a Haitian escaping the torture he suffered back home at the hands of his government and a mentally ill Cambodian brought to the U.S. as a young child decades ago. Their attorney, Jennifer Coral, fights to keep them both in the U.S., but their common struggle opens old wounds and exposes a deep political and cultural rift in America.”

Immigration lawyers expected Conroy would often rule in their favor. However, since taking the bench in 2017, TRAC calculated that he denied asylum about half the time.

In court, Conroy seemed focused on moving cases as expeditiously as possible. He spoke quickly and rarely looked up from his desk. He reminded each lawyer which documents they needed to take before they leave. One lawyer said, “He will not bend at all accepting documents that are late.”

But another immigration lawyer called him, “a nearly perfect judge. Impartial, smart, efficient and knows the law.”

Many lawyers said they have a good shot with Judge Maria Navarro, who also worked for the Legal Aid Society. She has an asylum grant rate of 85.5 percent.

Another new judge, Howard Hom, worked as an immigration attorney. But he was also an administrative law judge for California and a trial attorney with the former Immigration and Naturalization Service.

Judges With No Immigration Trial Experience

Judges Samuel Factor, Oshea Spencer and Brian Palmer.

(Jane Rosenberg for WNYC)

Last November, the Justice Department issued a memo requiring judges to expedite family cases and complete their trials within a year or less. Most appear to be families from Central America who crossed the border in the past year. Their cases are often assigned to new judges who have more room on their calendars. Some of these judges had no prior immigration experience.

Judge Oshea Denise Spencer was an attorney with the Public Utility Commission of Texas before becoming an immigration judge last October. She was assigned many of the family unit cases the Justice Department wants completed quickly. In mid-December, she told one attorney representing a Honduran mother and son that she wanted to move their asylum trial from May to March. The attorney objected because she’s juggling so many cases at her busy nonprofit. “It would be a violation of due process,” she said. Spencer let the attorney keep her original date.

Judge Samuel Factor was an administrative law judge with New York State Office of Temporary and Disability Assistance before becoming an immigration judge in October, 2018. By December, he was so busy he was scheduling trials in August 2020. “Give me 15 minutes we’ll be in 2021,” he joked to an attorney. He then apologized to another attorney for needing to schedule a trial in 2021. But in a family case involving a woman and child from Guatemala, he scheduled the trial much sooner, in October.

Judge Brian Palmer was previously an attorney, judge and commanding officer in the U.S. Marine Corps before taking the bench last October. Some immigration lawyers wonder why he’d want the job.

“On the Brink of Collapse?”

This year, the American Bar Association declared the U.S. immigration courts “on the brink of collapse.” It cited the quota system, and new rules from former Attorney General Sessions that took away judges’ ability to control their dockets. Meanwhile, the backlog grows as more migrants arrive at the border and some cases get delayed.

According to data obtained by WNYC, 14,450 hearings were adjourned in fiscal year 2018 because the judges couldn’t finish them — an increase from 9,181 from the previous year. More than 1,700 of those adjournments were in New York City. And there aren’t enough translators. More than 5,300 hearings were adjourned in fiscal year 2018 because no interpreter was scheduled, an increase from 3,787 the previous year.

The Executive Office for Immigration Review, a division of the Justice Department which runs the nation’s immigration courts, said those numbers aren’t even half of 1 percent of all 1.3 million hearings that year.

Nonetheless, these problems do affect the flow of a courtroom. In December, Judge Howard Hom was scheduling cases involving Punjabi speakers later than others because he couldn’t get a translator until September. Another judge, Maria Lurye, decided to group her 47 cases on a morning in March to make them move more efficiently. She started by calling all attorneys whose clients were seeking asylum.

“Are all of your clients here today?” Lurye asked. “Yes,” eight lawyers replied in unison. She then gave them different trial dates in April 2022, without taking individual pleadings. After that, she formed a group for other cases that were similar. The judge was able to see about 17 cases in 90 minutes, slightly faster than without the groupings.

Ashley Tabaddor, president of the National Association of Immigration Judges, described her members as being under a huge strain. “We are absolutely seeing some of the lowest morale and anxiety that’s completely unprecedented,” she said. The union leader also said the quotas have only made things worse because they risk sacrificing due process for expediency. Judges now see dashboards on their computers showing in red, yellow and green, indicating if they’re on target for their case completion goals.

Two examples of the dashboards the Justice Department uses to monitor an immigration judge’s case completion rate.

(Courtesy of National Association of Immigration Judges)

In a congressional subcommittee hearing, Executive Office for Immigration Review Director James McHenry defended the quotas. He said immigration judges completed more cases in Fiscal Year 2018 than in any year since 2011. He called this a “direct refutation” of critics who claim judges lack the integrity and competence “to resolve cases in both a timely and impartial manner.”

But because of the ways in which President Trump’s Justice Department is shaping the immigration court, one New York City immigration lawyer, Jake LaRaus, said it is “at best a kangaroo court.”

Former New York immigration judge Jeffrey Chase said, “All moves made by this administration must be viewed as pieces in a puzzle designed to erode the independence of immigration judges in order to allow the administration to better control case outcomes to conform with its political goals.”

This month, the judges union and a coalition of former judges each wrote stern letters to the Justice Department for releasing “wildly inaccurate and misleading information” in a fact sheet it released to the media about the courts.

A New Path for Immigration Court

An empty judge’s chair in New York City’s immigration court.

(Jane Rosenberg for WNYC)

The judges’ union wants to take the immigration court out of the Executive Branch and make it independent, like tax and bankruptcy courts. These are called Article Icourts. Congress would have to approve this change.

The Federal Bar Association has drafted model legislation for an Article I court. Judges would have fixed terms, and they’d be able to hold lawyers in contempt. Though this won’t solve the backlog problem, many academics and immigration lawyers support the plan because it would free the immigration court from the Justice Department’s bureaucracy and politics.

The Trump administration opposes the proposal. The Executive Office for Immigration Review said no organization has studied the cost or fully explored the ramifications. It says it’s solving the court’s backlog with quotas and by hiring 200 new judges, through new positions and filling vacancies. But nationally, there are just 435 judges.

An independent Article I court won’t be an easy sell in Congress, either. Elizabeth Stevens, who helped draft the Federal Bar Association’s proposal for the immigration court and previously worked in the Justice Department, said the only hope is for supporters to focus on courtroom efficiency.

“If it becomes politicized it becomes another issue of comprehensive immigration reform,” she warned.

There’s another immigration court in downtown Manhattan, in a federal building on Varick Street. It was previously just for immigrants held in detention, but with Federal Plaza running out of room, the government opened new courtrooms at the Varick location in March.

Two new judges, Conroy and Ling, moved to Varick Street. There are also four brand new judges who started this spring. Two of them previously worked for ICE. One was an assistant district attorney in Suffolk County and the other was a domestic relations magistrate in Trumball, Ohio.

Varick Street has been in the news because of a lawsuit. Hearings there are held by video for detainees. Now, the trial attorneys at regular hearings appear by video. Immigration lawyers have complained about this process.

The Executive Office for Immigration Review is planning to open more courtrooms in New York this year. It would like to hire 100 more judges nationally in the next fiscal year. The judges union believes it needs hundreds more than that to manage the backlog.

PWS

05-22-19

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

GREAT NEWS ON THE SIJ FRONT: Legal Aid & Justice Center Reports Major Legislative Change To Help Endangered Juveniles in Virginia — PLUS BONUS COVERAGE: Dan Kowalski Reports On New SIJ Legislative Victory in Colorado! — It’s The “New Due Process Army” In Action Across The Country!

THREE OF THE “DUE PROCESS WARRIORS” FROM THE LEGAL AID & JUSTICE CENTER OF VIRGINIA: Amy Woodard, Tanishka Cruz, & Simon Sandoval-Moshenberg

For Immediate Release

Contact: Amy Woolard, (434) 529-1846, amy@justice4all.org

Simon Sandoval-Moshenberg, (703) 720-5605, simon@justice4all.org

NEW VIRGINIA LAWS HELP IMMIGRANT CHILDREN SEEK PROTECTION FROM ABUSE, NEGLECT, AND ABANDONMENT

RICHMOND: On Friday, February 22, the Virginia General Assembly passed SB 1758 and HB 2679, identical bills that will aid immigrant children fleeing abuse, neglect, and abandonment in their home countries in seeking protection from deportation in Virginia.

Across the country, many immigrant children and DREAMers facing deportation proceedings seek a form of immigration relief called “Special Immigrant Juvenile Status” (SIJS). SIJS is unique in that it requires a state court to issue a certain type of order before the child may even attempt to seek SIJS relief from the federal government. In a 2017 case called Canales v. Torres-Orellana, brought by the Legal Aid Justice Center, the Virginia Court of Appeals sharply restricted state judges’ ability to issue these orders, leaving hundreds of Virginia immigrant children without protection. Virginia became one of the most difficult states in the nation to obtain SIJS.

During this year’s General Assembly session, Legal Aid Justice Center worked closely with legislators and the Governor’s office to pass these bills, which would overturn the Canales case and restore Virginia immigrant children’s ability to apply for SIJS. The bills also address the needs of other children before the juvenile courts, easing the way for any Virginia child to seek a state court’s assistance in proving eligibility for other benefits such as adoption assistance, TANF assistance, and timely public school enrollment.

SB 1758 was introduced by Sen. Scott Surovell (D-Mount Vernon). HB 2679 was introduced by Del. Marcus Simon (D-Falls Church). The bills initially took different approaches to fixing this issue, and each passed their respective chambers with an overwhelming bipartisan majority of votes. The bills were then placed into committees of conference in an attempt to gain consensus, and identical bills emerged that combined the approach of both; they garnered unanimous support in the House, and only two dissenting votes in the Senate. The bills now go to Governor Northam’s desk for his signature; once signed, they will take effect on July 1 of this year. The conference report with bill text is available at: http://leg1.state.va.us/cgi-bin/legp504.exe?191+ful+SB1758S1+pdf

“Immigrant children in Virginia can breathe a little more easily now,” said Simon Sandoval-Moshenberg, Legal Director of Legal Aid Justice Center’s Immigrant Advocacy Program. “Our agency has represented over 150 children fleeing truly horrific situations of abuse or neglect in their home countries. Fairness dictates that they be afforded the same rights as immigrant children in any other state. Now these new DREAMers will be able to seek protection and apply to remain in the United States with green cards.”

“This excellent result could not have come about without the leadership and hard work of Senator Surovell and Delegate Simon, and the support of Governor Northam’s administration,” said Amy Woolard, Legal Aid Justice Center Attorney and Policy Coordinator. “Virginia’s Juvenile and Domestic Relations courts should exist to protect the best interests of all children in the Commonwealth, and these bills will now make clear that is true for immigrant children seeking safety through SIJS, as well.”

“The United States has a long history of protecting abused, neglected, and abandoned children, and the Commonwealth will continue to play its part,” said Sen. Surovell. “These bills will clarify and restore Virginia courts’ authority to make factual findings necessary to protect children fleeing abuse, neglect, and abandonment from abroad, and I appreciate the broad bipartisan support of legislators who saw this as consistent with Virginia’s longstanding values.”

“I’m so pleased we were able to pass this important legislation to give our courts the authority they need to be able help some of the most vulnerable and powerless people in our Commonwealth,” said Del. Simon. “It is so important that we not let victims of abuse, neglect, and often abandonment fall through the cracks because of a technical deficiency in our code. Those are the common sense problems we are elected to come down here and fix.”

A downloadable PDF of this statement may be accessed here.

# # #

Legal Aid Justice Center is a statewide Virginia nonprofit organization whose mission is to strengthen the voices of low-income communities and root out the inequities that keep people in poverty. We provide legal support to immigrant communities facing legal crises and use advocacy and impact litigation to fight back against ICE enforcement and detention abuses. More information is available at http://www.justice4all.org/.

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And, here’s the latest from the fabulous Dan Kowalski, “Chief Immigration Guru” at LexisNexis Immigration Community:

Thanks to the efforts of the Rocky Mountain Immigrant Advocacy Network (“RMIAN”).

Passage of HB19-1042: Extension of State Court Jurisdiction for Vulnerable Youth

RMIAN is thrilled to announce the passage of House Bill 19-1042 through the Colorado House and Senate. The bill was sponsored by Representative Serena Gonzales Gutierrez and Senator Julie Gonzales and is now awaiting signature by Governor Polis. This bill will allow immigrant youth who have been abused, neglected, and abandoned to gain access to Colorado State courts for necessary protection and care, and to establish their eligibility for federal immigration relief. Ashley Harrington with RMIAN Children’s Program helped to craft this important legislation with Representative Gonzales Gutierrez, Senator Gonzales, Denise Maes with the ACLU of Colorado, Kacie Mulhern with the Children’s Law Center, Ashley Chase from the Office of the Child’s Representative, Katie Glynn with Grob & Eirich, and Bridget McCann, a RMIAN pro bono family law attorney. Celebrating the law’s passage today Ashley Harrington says, “I am so proud and honored to have been a part of making this law a reality that will impact the lives of many vulnerable immigrant children and ensure that they can find safety and stability in Colorado.”

Denise Maes, Ashley Harrington, Senator Gonzales, Representative Gonzales Gutierrez, Katie Glynn and Kacie Mulhern at the Capitol 3/1/19.

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Compare this with the Trump Administration’s cruel and shortsighted efforts to mindlessly restrict the scope of these important SIJ protections for some of our most vulnerable youth. Here’s my recent blog featuring WNYC’s Beth Fertig reporting on the Federal Judge’s adverse reaction to the DOJ’s disingenuous arguments “in defense of the indefensible” in his court. Talk about abuse of our court system by our Government! https://immigrationcourtside.com/2019/02/27/beth-fertig-wnyc-federal-judge-tires-of-administrations-absurdist-legal-positions-in-court/

SIJ cases also have the huge benefit of being processed outside the clogged U.S. Immigration Court asylum system, thus keeping many cases out of the largely artificially created “backlog” that is handicapping Due Process in Immigration Court.

There are many ways of using and building on current laws to make the immigration and justice systems work better. It’s a national disgrace that the Trump Administration isn’t interested in Due Process, fairness, or making our immigration system function in a more rational manner.

The good news: Eventually, the small minds, incompetence, and “radical White Nationalism” of this Administration and its enablers will be replaced by smarter, wiser, more capable folks like those in the LAJC, the RMIAN, and other members of the New Due Process Army. These are the folks who someday will lead us out of today’s darkness into a brighter and more enlightened future for all Americans!

PWS

03-02-19-

BETH FERTIG @ WNYC: Federal Judge Tires Of Administration’s Absurdist Legal Positions In Court

http://gothamist.com/2019/02/26/immigration_class_action_sij.php

Beth reports:

A federal judge in Manhattan heard arguments Monday on a class action case that could determine whether undocumented immigrants in New York between the ages of 18 and 21 can stay in the country legally if they’ve been abused or abandoned by a parent.

Attorneys representing five young adults in New York claimed that it was “arbitrary and capricious” for the Trump administration to deny Special Immigrant Juvenile (SIJ) status to those over 18 last year, because Congress authorized the program in 1990 for immigrants up to the age of 21.

The plaintiffs are anonymous, but include a young woman who was abandoned by her parents in the Dominican Republic and who’s lived in the Bronx with her grandmother since she was a baby, and a 20 year-old in Brooklyn who was rejected even though his younger sister was accepted and they had the exact same circumstances. Monday’s hearing drew so many local attorneys who represent young immigrants that the courthouse needed an overflow room to accommodate all of them.

The case was brought by the Legal Aid Society and other public defenders. Robert Malionek, a partner at Latham & Watkins who also worked on the suit, told the court the government was rejecting many of the same young immigrant applicants the program was intended to serve, and that they are now unable to get jobs or apply for financial aid to college because they don’t have legal status.

To apply for SIJ status, a young person must be appointed a special guardian by a juvenile court because they were abused, neglected or abandoned by one or both parents. They have to be under 21 and unmarried, and the juvenile court also has to find it’s not in their best interest to return to their home country.

Much of Monday’s arguments focused on the definition of a juvenile court. Tomoko Onozawa, of the U.S. Attorney’s Office in Manhattan, argued for the government that children go to Family Court in New York when they need a guardian, which is different from a juvenile court because it can’t make determinations on family reunification.

But attorneys for the plaintiffs, and the state Attorney General’s office, argued that was a distinction without a difference, because Family Court has the same functions. The government’s claims also frustrated U.S District Judge John Koeltl. He asked if the definition of a juvenile court means it must have the jurisdiction to place a child back in the custody of an unfit parent. That elicited a long pause.

“That shouldn’t be a hard question,” the judge stated.

After Onozawa repeated that a juvenile court must be able to reunite a child with a parent even if they have previously been found unfit, the judge replied, “What sense does that make?”

The government lawyer then replied that child welfare law contemplates reunification with a parent if circumstances change.

Onozawa also denied any change in policy under the Trump administration for young immigrants, and said U.S. Citizenship and Immigration Services was simply applying an existing definition to new applications for SIJ, now that one office in Missouri is handling all of them.

But Koeltl didn’t appear to buy that argument, either. “You say it was always the policy,” he said. “But if that’s true, up until 2018 all of the immigration judges deciding SIJ applications in New York were wrong.”

After the hearing, Malionek said he thought the government’s logic was faulty in suddenly deciding 18 to 21-year-olds could no longer apply for SIJ in New York. “I think their argument comes down to a complete misinterpretation of the federal law,” he stated.

A similar federal lawsuit has been filed in California, another state that allows young immigrants to apply for the special status until they turn 21.

The New York judge also heard arguments on a related case, involving one young Guatemalan man who was denied SIJ because the federal government disagreed with a family court’s decision that he was eligible. The government argued that the court didn’t have all of the relevant evidence about the immigrant’s possible gang affiliations.

Elizabeta Markuci, director of the immigration project at Volunteers of Legal Service, was among the many local lawyers attending Monday’s hearing. She said she felt validated by the judge’s apparent exasperation with the government’s arguments.

“To have a judge sort of call that out in a formal way and put them to task felt very reaffirming about the work that we’re doing with the young people that we are trying to support.”

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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Once again the Trump Administration has taken a part of the system that was working well, Special Immigrant Juvenile (“SIJ”) Status, and mindlessly and cruelly screwed it up. SIJ status allows the U.S. to save lives of deserving young people who might not fit our asylum system. It also helped the Immigration Court backlog because the majority of the work on these cases can be done outside the Immigration Court, in state courts and the USCIS.

It’s a win-win-win. Except that the Administration’s racist White Nationalist agenda doesn’t allow them to govern competently in the public interest.

PWS

02-27-19

WNYC’S BETH FERTIG FERRETS OUT FOOLISHNESS BEHIND THE SESSIONS/DHS ATTACK ON ADMINISTRATIVE CLOSING AND PROSECUTORIAL DISCRETION – I’m Quoted and Pictured!

https://www.wnyc.org/story/trump-administration-reviewing-thousands-deportation-cases-once-put-pause

Beth reports:

“Last year, a young mother who came to the U.S. illegally from Mexico as a child thought she’d essentially won her fight against deportation.

Twenty-four year old Jenny isn’t eligible for DACA, or Deferred Action for Childhood Arrivals. She was in the midst of immigration court proceedings when she told her attorney that she was a victim of domestic violence, which is why WNYC agreed not to use her real name.

In May, Jenny reported her boyfriend to police for allegedly beating and trying to choke her. That action suddenly changed the course of her immigration case.

Jenny was able to apply for what’s called a U visa that would allow her to stay in the U.S. It’s for immigrant victims of crime who cooperate with law enforecement.

The waiting list for a U visa is about three years. But because Jenny met the criteria, and got the Brooklyn District Attorney’s office to sign off on her documents, the immigration judge agreed to put her cause on hold. The legal term for this is administrative closure. The government would no longer seek to deport her while she waited for her special visa.

But a month later, Immigration and Customs Enforcement (ICE) asked the same judge to recalender Jenny’s case and put it back on the docket — meaning she’d have to fight against deportation all over again.

The reason? ICE wrote that Jenny’s U visa was “speculative” and “not available within a reasonable period of time.” The agency said three years was too long to wait — even though they’re controlled by another governmental agency, U.S. Citizenship and Immigration Services (both are within the Department of Homeland Security). ICE said she could wait for her U visa while in Mexico.

The agency also noted that Jenny had been convicted of petit larceny when she was 18. Though it’s not considered a crime that could lead to an immigrant’s removal, it brought her to ICE’s attention a few years ago, and her unlawful presence in the U.S. triggered the deportation proceedings.

For Jenny, the about face was extremely upsetting after suffering domestic abuse and moving into a women’s shelter. “I seek help and I’m still kind of being, you know, bullied,” she said.

Her attorney, Kendal Nystedt of the immigrant rights group Make the Road New York, said ICE seemed to mischaracterize immigration law and said its arguments “were also insulting given the humanity of my client.”

The judge apparently agreed. Late last year, in a one page memo, he denied the government’s request and let Jenny remain in the U.S. But data obtained by WNYC shows that Jenny wasn’t the only immigrant who thought they could stay, only to have the government give their case a second look.

In Fiscal Year 2017, ICE asked to recalendar almost 9400 cases that were administratively closed, or put on pause. That’s an increase of almost 74 percent from the year before President Trump took office. In response, it appears immigration judges may be applying more scrutiny to the government’s requests. They granted 85 percent of those motions to put the cases back on their dockets in 2017, compared to 96 percent in 2016.

When asked why the government is revisiting more cases, ICE spokewoman Jennifer Elzea said the agency generally reviews cases that were administratively closed “to see if the basis for prosecutorial discretion is still appropriate.”

But it’s clear this legal strategy also lets the Trump administration try to deport more immigrants. Former immigration judge Andrew Arthur said there’s a good reason. “Under the Obama Administration, administrative closure was treated as a form of amnesty,” he explained.

Arthur is a fellow with the Center for Immigration Studies, a think tank that supports more restrictive immigration policies. Without commenting on Jenny’s situation he said some cases that were administratively closed involved immigrants who may never qualify for whatever benefit they thought they were likely to receive. But he said the previous administration didn’t act because there were “not deemed a priority for removal.”

In other words, he Obama administration had made criminals the top priority for removal, letting too many others remain.

Retired immigration judge Paul Wickham Schmidt

Beth Fertig/WNYC

Another former immigration judge said that Obama era policy made sense, however. Paul Wickham Schmidt granted administrative closures when he worked in the Arlington, Virginia court.

“An example of a type of case that gets closed quite a bit are cases of individuals who have relatives petitioning for them. And there’s a big backlog of petitions,” Schmidt explained. “So rather than continuing the case time after time, sometimes for years, judges were saying ‘look I’m going to take this case off the docket.'”

He said this management strategy was necessary. The immigration courts have a backlog of 670,000 thousand pending cases. “You’re not even going to complete 670,000 cases probably within my lifetime. You’ve got to decide which cases really belong at the front of the line and which cases you’re not going to prioritize,” he said. “Wasting time in immigration court just doesn’t make sense.”

Despite concerns about further burdening an immigration court system that’s already bursting at the seems, Attorney General Jeff Sessions is considering a much more dramatic step than simply seeking to recalendar the 9400 cases that were reviewed last year. He’s looking into recalendaring all cases that were administratively closed – and there are estimates there could 350,000 of them.”

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Go to the link to hear the audio from WNYC!

Putting cases like “Jenny’s” back on the already overcrowded dockets is cruel, counterproductive, and wasteful of judicial time. She’s established the qualifications for a U visa, for Pete’s sake. There really isn’t any “uncertainty” — if she stays out of trouble with the law, she’ll get a U visa when her number comes up. No reason on earth for her to “occupy space” on the Immigration Court’s docket.

If she were unwise enough to get into legal trouble before then (seldom happens, in my experience), then that would be the time to 1) revoke her U visa approval, and 2) put her back on the docket. With dockets stretching out for years, why would an Immigration Judge do anything other than keep putting a case like Jenny’s at the end of the docket until her “U number” is reached?

Just because somebody is “removable” doesn’t mean that it makes any sense to put them on already overcrowded Immigration Court dockets. That’s particularly true of an individual who meets the requirements for a legal status (albeit one that because of the arcane structure of the Federal Regulations, an Immigration Judge can’t actually grant).

It’s analogous to the local prosecutor jamming a judge’s docket with jaywalking, littering, and unleashed dog cases so that there isn’t time to hear felony rape and robbery cases! No other law enforcement agency in America that I’m aware of operates without any real prosecution priorities the way Sessions and the DHS are trying to do in this Administration.

And, of course, one large class of “Administratively Closed” cases involves those who had their DACA applications approved by USCIS after Removal Proceedings had been initiated. What would be the point of putting such cases “back on the docket” if DACA were actually terminated?

Even the DHS claims that “Dreamer” cases would not be an “enforcement priority.” (Although, during the Trump Administration such claims by DHS have often proved to be “not credible.”) Therefore, it would literally be years before they could be heard. And many of them have strong cases for other forms of immigration relief such as Cancellation of Removal. I want to believe that the fate of the Dreamers will be resolved long before then.

PWS

03-07-18

BRINGING OUR CONSTITUTION BACK TO LIFE — AN IMPORTANT FIRST STEP: “JAYAPAL, SMITH INTRODUCE LEGISLATION TO REFORM IMMIGRATION DETENTION SYSTEM!”

https://www.theindianpanorama.news/unitedstates/jayapal-smith-introduce-legislation-reform-immigration-detention-system/

From Indian Panorama:

“WASHINGTON (TIP): Congressman Adam Smith (WA-09) and Indian American Congresswoman Pramila Jayapal (WA-07) introduced, on Oct 3, the Dignity for Detained Immigrants Act, legislation to reform the systemic problems in immigration detention system. This bill will end the use of private facilities and repeal mandatory detention, while restoring due process, oversight, accountability, and transparency to the immigration detention system.

“The high moral cost of our inhumane immigration detention system is reprehensible. Large, private corporations operating detention centers are profiting off the suffering of men, women and children. We need an overhaul,” said Congresswoman Jayapal. “It’s clear that the Trump administration is dismantling the few protections in place for detained immigrants even as he ramps up enforcement against parents and vulnerable populations. This bill addresses the most egregious problems with our immigration detention system. It’s Congress’ responsibility to step up and pass this bill.”

“We must fix the injustices in our broken immigration detention system,” said Congressman Adam Smith. “As the Trump administration continues to push a misguided and dangerous immigration agenda, we need to ensure fair treatment and due process for immigrants and refugees faced with detention. This legislation will address some of the worst failings of our immigration policy, and restore integrity and humanity to immigration proceedings.”

In addition to repealing mandatory detention, a policy that often results in arbitrary and indefinite detention, the legislation creates a meaningful inspection process at detention facilities to ensure they meet the government’s own standards. The bill requires the Department of Homeland Security (DHS) to establish legally enforceable civil detention standards in line with those adopted by the American Bar Association. With disturbing track records of abuse and neglect, DHS has a responsibility to ensure that facilities are held accountable for the humane treatment of those awaiting immigration proceedings.

Individuals held in immigration detention system are subject to civil law, but are often held in conditions identical to prisons. In many cases, detained people are simply awaiting their day in court. To correct the persistent failures of due process, the legislation requires the government to show probable cause to detain people, and implements a special rule for primary caregivers and vulnerable populations, including pregnant women and people with serious medical and mental health issues.”

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Since these guys are Democrats, their bill is obviously DOA. But, it is important to start “laying down markers” — even symbolic ones — for the future.

As a former administrative judge who was required to administer and enforce mandatory detention (under DOJ rules, we were not permitted to consider the constitutionality of the mandatory detention statutes and the DHS implementing regulations) for the better part of two decades, I can assure you that it was a totally unnecessary, grossly wasteful, and stunningly unhumane blot on our national conscience and our reputation as a nation that adheres to principles of simple human decency.

There is absolutely no reason why U.S. Imigration Judges cannot determine who needs to be detained as a flight risk or a danger to the community and who doesn’t! But, for that to happen, we also need an independent Article I U.S. Immigration Court not beholden to the Attorney General (particularly one like Jeff “Gonzo Apocalypto” Sessions with a perverse ignorance of Constitutional protections, an overwhelming bias against immigrants, and a record largely devoid of notable acts of human decency.)

Every study conducted during the last Administration, including DHS’s own Advisory Committee, found serious problems and inadequate conditions in private detention and recommended that it be eliminated. Former Attorney General Loretta Lynch actually announced an end to private detention for criminals. Yet, remarkably and unconscionably, the response of the Trump Administration, led by Gonzo Apocalypto, was to double down and expand the use of expensive, inhumane private detention for convicted criminals and for “civil” immigration detainees whose sole “crime” is to seek justice from the courts in America.

Thanks much to Nolan Rappaport for sending this in!

PWS

10-06-17

BETH FERTIG AT NPR: “ADR” Moves Into High Gear, Devastating U.S. Immigration Courts, As Half Of NY Immigration Court “Goes Dark” — U.S. Immigration Judges Become Adjuncts Of DHS Border Enforcement Program — Dockets At Interior Courts “Orbited Into Never-Never Land!”

ADR = “Aimless Docket Reshuffling”

http://www.wnyc.org/story/even-more-immigration-judges-are-reassigned-trumps-crackdown-border/

Beth reports for WNYC/NPR:

“In its crackdown on illegal immigration, the Trump administration is moving an increasing number of immigration judges closer to the border with Mexico. The practice is so widespread that half of New York City’s 30 immigration judges have been temporarily reassigned for two-to-four weeks at a time between early April and July.

The judges have been sent to hear deportation cases in Louisiana, California, New Mexico and Texas, along with Elizabeth, New Jersey, where there’s a detention center. In June, WNYC reported that at least eight of New York City’s immigration judges have been temporarily moved to Texas and Louisiana since March. New information obtained from a Freedom of Information Act request revealed the number to be much higher.

All this reshuffling causes cases to get delayed for months. And New York City’s immigration court already has a backlog of more than 80,000 cases. People wait an average of more than two years go to court to fight against deportation. Some might welcome a prolonged wait. But immigration lawyer Edain Butterfield said her clients get anxious because they’re ready to make their case, when they suddenly learn their judge has had to postpone.

“They don’t know if their judge is going to stay on their case,” she said. “They sometimes have to get new documents, ask for another day off from work, ask their family to take another day off from work.”

David Wilkins, an attorney with Central American Legal Assistance in Brooklyn, said he’s representing a woman seeking asylum whose hearing was recently postponed almost a year — until the summer of 2018. He said she left her children in her home country back in 2012 because of domestic abuse. “It’s extremely difficult for her,” he said. “She’s been separated from her family for so long to sort of live with the constant uncertainty of not knowing what’s going to happen with her immigration proceeding.”

Judges from New York City aren’t the only ones being moved. According to the latest data obtained by WNYC, 128 of the nation’s approximately 325 immigration judges have been shuffled to other locations between early April and the middle of July. Many of those judges come from Los Angeles, Chicago and San Francisco. These assignments, known as details, last for two or four weeks. Some judges have been shifted around multiple times.

The data does not include all judges assigned to hear cases in other locations by video teleconference. A couple of judges in New York City were seeing cases by video at a Texas detention center in May and June.

The reassignments are expected to continue until early 2018, but the Executive Office for Immigration Review, which runs the immigration courts, would not reveal the schedule beyond July.

In April, Attorney General Jeff Sessions announced that all adults crossing the Mexican border would be sent to detention. To support the mission, he said, the Department of Justice had “already surged 25 immigration judges to detention centers along the border.”

Dana Leigh Marks, president of the National Association of Immigration Judges, said her union remains very concerned about the situation.

“The temporary assignment of judges to border courts creates increasing backlogs in the dockets they leave behind in their home courts and may not be conducive to the overall reduction of our burgeoning caseload.”

Nationally, the backlog has surged to more than 600,000 cases and observers believe that number is growing partly because of the Trump administration’s immigration policies.

Moving judges south might sound counterintuitive because illegal border crossings have actually dropped since President Trump took office. But Bryan Johnson, an immigration lawyer on Long Island, has a theory about why more judges are needed down south.

“The people that are deported will be deported in less time,” he explained. “And that is the message they want to send people in the home countries from where the migrants come from.”

There is no guaranteed right to counsel in immigration court, and experts said there are few low-cost immigration attorneys near the border — making it even easier to swiftly deport someone because they are not likely to have representation.

The Executive Office for Immigration Review did not respond to a request for comment. However, the agency has said it is hiring more judges.”

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Get the accompanying audio/video report at the link.

David Wilkins from the Central American Legal Defense Center in Brooklyn, quoted in Beth’s article, is one of my former Georgetown Law Refugee Law & Policy students, a former CALS Asylum Clinic participant, and a former Legal Intern at the Arlington Immigration Court. David was also an Immigrant Justice Crops fellow. He is a “charter member” of the “New Due Process Army.” Congratulations David, we’re all proud of what you are doing!

Attorney Bryan Johnson simply restates the obvious. Under A.G. Jeff “Gonzo Apocalypto” Sessions, the U.S. Immigration Courts are once again being used as an arm of DHS Enforcement rather than a protector and dispenser of constitutional due process. Nobody in their right mind seriously thinks that Sessions is “surging” Immigration Judges to the border to grant more bonds, reverse more “credible fear” and “reasonable fear” denials, or grant more asylum, withholding of removal, or relief under the CAT.

No, the “surge” program is clearly all about detention, coercion, denial, deportation and sending a “don’t come, we don’t want you” message to folks living in fear and danger in countries of the Northern Triangle of Central America. In other words, you might as well cooperate with, support, and/or join the gangs and narco-traffickers — the U.S. has absolutely no intention of saving your life! Nice message!

Don’t be too surprised when multinational gangs and narco-traffickers eventually seize political power in Central America (they have already infiltrated or compromised many government functions). And, we will have sent away the very folks who might have helped us stem the tide. At the same time, we are destroying the last vestiges of due process in the U.S. Immigration Courts, leaving hundreds of thousands of cases and lives “up in the air” and our justice system without a fair and effective mechanism for deciding and reviewing immigration cases. At some point, somebody is going to have to fix this mess. But, you can be sure it won’t be the Trump (“We Don’t Take Responsibility For Nothin'”) Administration.

PWS

07-24-17

BREAKING: NPR’s Beth Fertig Exposes Administration’s Immigration Court Due Process Disaster — Taxpayers Billed For Sending Judges To Hustle Detainees Through Court Without Lawyers, Leaving More Represented Cases At Home To Rot! — Backlogs Mushroom As Administration Plays Games With Human Lives!

http://www.wnyc.org/story/missing-new-york-immigration-judges/

Fertig reports:

“In the middle of May, paper notices were posted on the walls of the federal building in lower Manhattan announcing the absence of several immigration judges. Some were out for a week or two, while others were away for six weeks. The flyers said their cases would be rescheduled.

The Executive Office for Immigration Review, which runs the immigration courts, would not comment on the judges’ whereabouts. It cited the confidentiality of personnel matters. But after WNYC asked about these missing judges, many of the paper notices were taken off the walls of the 12th and 14th floors, where hearings are held in small courtrooms.

It’s no secret that President Donald Trump’s administration has been redeploying judges to detention centers near the southern border to speed up the processing of cases. After contacting numerous immigration attorneys down south, as well as retired judges and others, WNYC was able to crowdsource the judges’ locations. At least eight of New York City’s 29 immigration judges had been sent to Texas and Louisiana since March to conduct hearings in person or by video. Six judges were out for different parts of the month of May, alone.

“NYC

The federal building is home to the nation’s busiest immigration court, with a backlog of 80,000 cases. By redeploying so many judges in such a short period of time, immigration lawyers fear the delays will grow even longer. Meanwhile, attorneys near the border question whether these extra judges are even necessary.

Among other matters, judges at detention courts are supposed to hear cases involving people who crossed the border illegally. Yet those numbers have declined since Trump took office. That’s why local attorneys are cynical about the surge.

“I don’t really think that they need all these judges,” said Ken Mayeaux, an immigration lawyer in Baton Rouge.

Mayeaux said what’s really needed there are more immigration attorneys. As federal agents arrest an increasing number of immigrants who are already in the U.S. without legal status, they’re sending them to southern detention centers that are pretty isolated. The ones in Oakdale and Jena, Louisiana, are hours west of Baton Rouge and New Orleans, where the vast majority of the state’s immigration advocates are concentrated, said Mayreaux.

“To ramp things up in one of the places that has the lowest representation rates in the United States, that’s a due process disaster,” he said.

Data from the Transactional Records Access Clearinghouse at Syracuse University confirms that immigrants may only wait a couple of months for their deportation case to be completed in these detention centers near the border. But in New York, the wait to see an immigration judge is 2.4 years.

So why move judges from a clogged and busy court system in New York to the border region, where immigration cases are already moving swiftly?

“In this particular instance, it’s a virtuous circle from the perspective of the administration,” explained Andrew Arthur, a former immigration judge.

Arthur is a resident fellow at the Center for Immigration Studies. It’s a think tank that wants to limit immigration, though it’s been branded a hate group by the Southern Poverty Law Center. During the Obama administration, Arthur said too many immigrants were let out of detention and waited years for their cases to be heard. He said moving more judges to the border will prevent that from happening.

“Because the quicker that you hear the cases the less likely that an individual is to be released,” Arthur said. “Therefore the less likely another group of individuals are to attempt to make the journey to the United States.”

Another former immigration judge, Paul Wickham Schmidt, said the Obama administration tried something similar by fast-tracking the cases of Central American migrants in 2014. But he said it wound up scrambling the judges’ dockets and was counterproductive. He was redeployed from his home court in Virginia and estimates he had to reschedule a hundred cases in a week.

“Nobody cares what’s happening on the home docket,” he said. “It’s all about showing presence on the border.”

Not all judges assigned to the border are physically present. Mana Yegani, an immigration lawyer in Houston, said she’s seen several judges — including a few from New York — at a detention center where cases are done by video teleconference.

“We never see the prosecutor’s face, it’s just a voice in the background,” she explained. “It’s just not a fair process for our clients and I don’t think the judges can be efficient the way they’re supposed to. They take an oath to be fair and to uphold the Constitution and due process, and I think the way the system is set up it really hinders that.”

A new audit of the immigration courts by the Government Accountability Office questioned whether video teleconferences have an impact on outcomes and said more data should be collected.

Some attorneys believe the reassignments are temporary to see if border crossings continue to ebb. The Executive Officer for Immigration Review won’t comment on that, but spokesman John Martin said the agency will hire 50 new judges and “plans to continue to advertise and fill positions nationwide for immigration judges and supporting staff.”

In the meantime, there’s no question that shifting judges away from New York is having an impact on real people.”

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Read Beth’s entire article, including the story of one “real” asylum applicant waiting patiently for a hearing that almost didn’t happen.

The due process farce continues, at taxpayer expense, while the U.S. Immigration Courts are being treated as an enforcement arm of the DHS. Aimless Docket Reshuffling (“ADR”) denies due process at both the “sending courts” and “receiving courts.” When, if ever, will Congress or the Federal Courts step in and put an end to this travesty of justice and mockery of our constitutional requirement for due process! In the meantime, what’s happening in the Immigration Courts is a continuing national disgrace.

PWS

06-06-17

“AIMLESS DOCKET RESHUFFLING” (“ADR”) IN NEW YORK — NPR’s Beth Fertig Exposes Due Process/Management Abuses By Obama & Trump Administrations!

http://www.wnyc.org/story/why-new-yorks-immigration-court-even-busier-fewer-judges-under-trump/

Fertig reports:

“There are 29 immigration judges assigned to court rooms in the Federal Building in Lower Manhattan. But as the number of pending cases grew from about 70,000 in January to nearly 80,000 this spring, more and more people have been coming to court only to discover they don’t have judges.

On a Tuesday morning in May, Alin Guifarro expected to attend a hearing with his 18-year-old son, Jose David Rodriguez. The teen came from Honduras last year to join his father and is trying to get legal status in the U.S.

But when they went to the 12th floor and scanned the long list of names with appearances scheduled that day, Guifarro saw his son’s case wasn’t assigned to a judge. Confused, he went to the clerk’s office and was told he would eventually get a letter in the mail about a new court date.

Guifarro was frustrated. “I came over here driving 2 ½ hours for nothing,” he said, referring to his journey from his home in Mastic, Long Island.

This father and son aren’t the only ones whose immigration cases have been postponed lately.

“In the last two months this has happened every week,” said Bryan Johnson, an immigration lawyer based on Long Island. Many of his clients are seeking asylum, and he said some have already been waiting a couple of years. With extra delays, he said, “if they have children who are abroad, that will delay family unification or spousal unification if their spouse is abroad.”

On a single day in May, when almost 400 hearings were scheduled to take place in immigration court, WNYC counted 60 people who didn’t have judges.

The Executive Office for Immigration Review runs the nation’s immigration courts. It says staffers typically mail a notice if a judge is out or a case is delayed, but they don’t always go out in time. As for why people are coming to court without judges, the agency explained that they are technically assigned to ”visiting judges.” But it acknowledged these judges don’t actually exist.

“The concept of ‘visiting judges’ is for internal case management,” said E.O.I.R. spokesman John Martin. “When judges retire, or temporarily stop hearing cases due to illness, the New York City Immigration Court will assign these dockets to a ‘visiting judge’ in order to maintain continuity of these cases. As new immigration judges are hired and officially placed at their respective immigration court locations, these ‘visiting judge’ dockets in those locations are reassigned to them.”

Even after a recent hire, New York City has only 29 immigration judges, compared to 31 at this time last year.

The backlog in immigration courts isn’t new. There are almost 600,000 pending cases, nationally. The problem started well before President Donald Trump took office.”

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

Read Beth’s complete article at the link.

A recent GAO report highlighted and quantified endemic management issues with the DOJ’s stewardship over the U.S. Immigration Courts, particularly in hiring new Immigration Judges which takes an astounding average of 742 days. http://wp.me/p8eeJm-Uh

Then, there are the retirements. It’s hardly rocket science that an aging workforce in high-stress jobs might retire in large numbers. I ran “Immigration Judge retirements” into my search engine and got 9 articles, right off the bat. Try it yourself.

Additionally, there is the practice of both Administrations of mindlessly jamming more new cases in the front of the system without a rational plan for completing the ones already in it. That’s followed by reassigning Immigration Judges (like they were assembly line workers) from existing dockets of cases scheduled for final hearings to new dockets of Not Quite Ready For Prime Time (“NQRFPT”) cases. And to cap it off, Secretary Kelly, egged on by Jeff Sessions, has told DHS agents to arrest anyone the feel like arresting without any regard for reasonable priorities or space on already overcrowded court dockets!

And, while we’re at it, let’s stuff more non-criminals into dangerous, expensive, and unneeded immigration detention, thereby turning them into self-created emergency situations, rather than thinking creatively about cheaper, more humane, and more effective methods of getting non-dangerous folks through the system in a reasonable manner.

And you gotta love imaginary “visiting judges.” Visiting from where, “The Twilight Zone?” Almost as good as “warehousing” tens of thousands of cases on a single day in November 2019. No wonder that once in extreme frustration I referred to this administrative morass as “Clown Court!”🤡

No, it’s not all the fault of EOIR bureaucrats, most of whom mean well and are simply caught up in a “built for failure” system. But, it is the fault of the DOJ whose politicized management of the Immigration Courts has been a disaster since the beginning of this century. And, even if you removed politics from the equation, the DOJ obviously lacks the basic administrative competence to run a complicated, high volume court system. Ultimately, Congress must assume the responsibility for allowing this travesty to continue to exist. An independent Immigration Court outside the Executive Branch is long overdue.

But, other than that, it’s a great system!

Stay tuned! Tomorrow, Beth will tell us what judges pulled off their existing dockets find when they get to their “detail courts.” I can’t wait to hear what she found out!

PWS

06-05-17

EOIR Embroiled In Controversy On Several Fronts!

Few agencies in the U.S. Government are as publicity and conflict averse as the Executive Office for Immigraton Review (“EOIR,” pronounced “Eeyore”), a division of the U.S. Department of Justice that houses the U.S. Immigration Court system. So, officials at EOIR and their DOJ handlers must be “going bananas” (when they aren’t preoccupied with the Comey firing) about several recent news items that cast an unwelcome spotlight on the agency.

First, super-sleuth NPR reporter Beth Fertig smoked out the story of ex-con Carlos Davila (12 years in prison for first-degree manslaughter and sexual abuse while on parole) who is using the EOIR “recognition and accreditation” program to practice law (without a license) under the guise of being a “nonprofit charitable organization.” Davila is apparently under investigation by EOIR, but continues to practice.

As a result of Beth’s story, New York Congresswoman Nydia Velázquez has asked the House Judiciary Committee to investigate the program.

As noted in the article, the “R&A” program, allows well-qualified non-attorneys working at reputable nonprofit charitable organizations to represent migrants in Immigration Court and/or before the DHS. The R&A program fills a critically important role in providing due process in the U.S. Immigration Courts. This is particularly true today, in light of increased enforcement and very limited pro bono and “low bono” immigration attorney resources.

The Davila situation, as described by Beth, sounds like a scam to me. Under the regulations, “accredited representatives” are supposed to be working for “recognized organizations” — nonprofits that provide legal services (usually along with other types of social services) on a largely pro bono basis.

Only “nominal fees” can be charged. But the term “nominal fees” has never been defined. We worked on it, off an on, for most of my tenure as BIA Chair in the late 1990s and never could come up with a specific definition that was acceptable to both NGOs and bar associations.

From the article, it appears to me that Davila is actually running a profit-making law firm for himself and his staff under the “shell” of a non-profit. For example, charging someone $200 for a piece of paper that basically restates their rights under the Constitution, the INA, and the regulations seems far beyond a “nominal fee.” The research is simple, and the card itself could be printed off for a few cents a copy. So, $200 seems grossly excessive.

Also, fees of $1,000 to $3,500 for asylum applications seem to be beyond “nominal fees.” If fact, that’s probably close to what some legitimate “low bono” law firms would charge. So, it seems like Davila is really practicing law for a living without a license, rather than providing essentially pro bono services for a charitable organization.

I agree that there should be more thorough investigation and vetting of organizations and accredited representatives by EOIR. This seems like something that should be right up Attorney General Sessions’s alley.

To my knowledge, EOIR does not currently employ any “investigators” who could be assigned to the EOIR staff working on the recognition and accreditation program. But there are tons of retired FBI agents and DHS agents out there who could be hired on a contract basis to do such investigations. Given the money that this Administration is planning to throw at immigration enforcement, finding funds for a needed “upgrade” to this program should not be a problem.

Here are link’s to Beth’s initial article and the follow-up:

http://www.wnyc.org/story/felon-has-federal-approval-represent-immigrants-and-now-hes-selling-this-id

http://www.wnyc.org/story/congresswoman-calls-more-oversight-non-lawyers-representing-immigrants

The second controversial item concerns an ongoing dispute between the Federation for American Immigration Reform (“FAIR”) and the Immigration Reform Law Institute (“IRLI”) on one side and the Southern Poverty Law Center (“SPLC”) and other immigrants’ rights groups on the other. In 2014, the SPLC and other advocacy groups requested that the BIA “strike” an amicus brief filed by FAIR and IRLI because, among other things, FAIR was a “hate group.” FAIR responded by asking EOIR to discipline the SPLC and other advocacy group attorneys involved for “unprofessional conduct.”

On March 28, 2016, the EOIR Disciplinary Counsel issued a confidential letter finding that the SPLC and related attorneys had engaged in professional misconduct. However, in lieu of formal disciplinary proceedings, the Disciplinary Counsel issued a “reminder” to the concerned attorneys “that practitioners before EOIR should be striving to be civil and professional in their interactions with each other, the public, and the Board and Immigration Courts.”

But, that was not the end of the matter. On May 8, 2017, the IRLI published the “confidential” letter of discipline on the internet, stating:

“Although the SPLC’s utter lack of ethics was thoroughly condemned by the DOJ, the agency inexplicably requested that FAIR keep their conclusions confidential. FAIR and IRLI have complied with the request for more than a year; however, in that time, the SPLC has continued and escalated its attacks on both FAIR and IRLI, likely in part in retaliation for FAIR and IRLI filing a complaint with DOJ regarding its conduct. At this time, IRLI has decided it must release the letter to defend itself and protect its charitable purposes.”

So, now, the EOIR “confidential” letter is sitting smack dab in the middle of what looks like the “Hundred Years War” between FAIR and the SPLC. Not the kind of “stuff” that EOIR and DOJ like to be involved in!

On the plus side, perhaps in response to this situation, the BIA in 2015 changed its amicus procedures to publicly request briefing from any interested party in matters of significant importance that likely will lead to precedent decisions. Indeed, a number of such notices have been published on this blog.

Here’s a copy of the IRLI posting which contains a link to the 2014 “confidential” letter from the EOIR Disciplinary Counsel.

http://www.prnewswire.com/news-releases/irli-releases-obama-justice-department-reprimand-of-the-southern-poverty-law-center-over-its-derogatory-tactics-frivolous-behavior-300453406.html

Stay tuned.

PWS

05-10-17

Sanctuary Wars: The Republic, And Its Cities, Strike Back!

Immigration beat reporter Beth Fertig of WNYC/NPR reports:

“There is no single definition of a sanctuary city, and policies vary tremendously across the country. But in New York City, immigration agents are not allowed in the jails. When immigrants without legal status are arrested, they can only be detained or turned over to federal agents for deportation if there’s a warrant and they’ve been convicted of a violent crime. A 2014 local law spells out nearly 170 different offenses that meet that definition. They include various forms of assault, arson and sex crimes.

Council Speaker Melissa Mark Viverito said these limits make sense.

“If you’re committing a nonviolent offense but you’re otherwise contributing positively to the city, why should you be torn apart from your family?”

Police Commissioner James O’Neill and Mayor Bill de Blasio joined the argument Wednesday, saying that immigrants will be less likely to cooperate with law enforcement if they’re afraid of deportation. “We build trust,” said O’Neill. “I wouldn’t want to do anything to put that at risk.”

Trump’s order changes enforcement priorities, too. In addition to aliens convicted of criminal offenses, the Department of Homeland security will also prioritize those who have been “charged with any criminal offense, where such charge has not been resolved.”

Avideh Moussavian, a policy attorney with the National Immigration Law Center, warned that this policy could lead to “gross infractions of due process protections.”

She said people could become enforcement priorities if “they have been merely charged with an offense, even if their charge is pending and turns out later to be dismissed.”

From a practical standpoint, it would be very difficult to deport more immigrants. The nation’s immigration courts have a tremendous backlog of cases. Judges who handle immigration cases estimate there are 75 vacancies among their ranks, and Trump has imposed a federal hiring freeze. However, the executive order means that the freeze on judges could be lifted in the name of national security.”

Read Beth’s complete article, including comments from Heather Mac Donald of the Manhattan Institute in favor of the President’s crackdown at:

http://www.wnyc.org/story/why-sanctuary-city-dispute-about-safety/

Mollie Reilly, Deputy Politics Editor, and her colleagues write on HuffPost:

“Independent of the ultimate legality of the executive order, politicians from those sanctuary cities say they aren’t budging, and legal advocacy groups are gearing up for the coming legal fight.
The president is “in for one hell of a fight,” California state Sen. Scott Weiner (D), who represents San Francisco, said in a statement.
Boston Mayor Marty Walsh (D) said his city “will not retreat one inch” from its policy against holding undocumented immigrants it otherwise would not hold based on requests from Immigration and Customs Enforcement, and Seattle Mayor Ed Murray said his city “will not be intimidated by the authoritarian message coming from this administration.” San Francisco Mayor Ed Lee (D) said “nothing has changed” in his city, noting the lack of specifics in Trump’s order.
“We are going to fight this, and cities and states around the country are going to fight this,” New York Mayor Bill de Blasio (D) said at a press conference Wednesday.
New York Attorney General Eric Schneiderman (D) already began hinting at a legal challenge, releasing a statement that Trump lacks the constitutional authority for his executive order and that he will do “everything in [his] power” to push back if the president does not rescind it.
Washington state Attorney General Bob Ferguson (D) also warned of potential legal challenges to come, saying in a statement that the order “raises significant legal issues that my office will be investigating closely to protect the constitutional and human rights of the people of our state.”
There’s no exact definition of “sanctuary city.” Places like San Francisco and New York use the term broadly to refer to their immigrant-friendly policies, but more generally the term is applied to cities and counties that do not reflexively honor all of Immigration and Customs Enforcement’s requests for cooperation. Many of these localities do work with ICE to detain and hand over immigrants suspected or convicted of serious crimes, but they often release low-priority immigrants requested by ICE if they have no other reason to hold them.
“The reason that many local law enforcement officers don’t honor detainers is because courts have said that they violate the Constitution, and if they violate the Constitution, the localities are on the hook financially,” said Cesar Cuauhtemoc Garcia Hernandez, a law professor at the University of Denver who teaches on the intersection of criminal law and immigration.
Just on Tuesday, a federal court in Rhode Island joined several others that have ruled in recent years that certain ICE detainers can violate people’s constitutional rights ― even those of U.S. citizens.
But Trump’s executive order seems to overlook this legal reality, and instead frames sanctuary cities with the alarmist rhetoric he used on the campaign trail.”

Read Mollie & co.’s complete report here:

http://www.huffingtonpost.com/entry/trump-sanctuary-cities_us_

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PWS

01/26/17

Sunny Thoughts On A Dreary Day In DC — Read More From WNYC/NPR Reporter Beth Fertig — The “New Due Process Army” Takes the Field — Bronx Defenders and Courtney M. Lee (Former Arlington Immigration Court Intern And Star Georgetown CALS Asylum Clinic & RLP Student) Work To Save Lives & Insure Due Process In Our Immigration Courts Every Day!

https://www.wnyc.org/story/free-lawyers-provided-city-help-more-immigrants-detention-win-cases/

Beth Fertig writes:

“Arturo had his most recent hearing in December, in front of Judge Patricia Buchanan. He wore an orange jumpsuit with the initials of the Hudson County Department of Correction on the back, and his hands were shackled. The 31-year-old is five-foot-three and slim, and appeared very nervous. He sat with his team from Bronx Defenders, [Supervisory Attorney Sarah Deri] Oshiro and Law Graduate Courtney Lee, and a court-appointed translator. There was also an attorney from Immigration and Customs Enforcement, James McCarthy.

Arturo’s case is very complicated and his team has a few different claims. They are asking the court to withhold his deportation on the grounds that he’ll be persecuted or tortured if he goes back to Mexico.

“His stepfather subjected him to — during his entire childhood and adolescence — to really severe constant and consistent sexual, physical and psychological abuse,” Lee explained.

In court, she asked Arturo to recall some of the beatings and how his mother and siblings are still living in terror. He said the abuse continued even after he arrived in New York and sent his mother money to leave the man. He described in Spanish how he feared his stepfather would kill him if he moved back to Mexico, because he was the one who helped his mother escape. And he said he had no other place to live except for the town in which they reside. But Judge Buchanan appeared skeptical. She asked if he had any family in New York when he first arrived in 2004, and he said no.

Arturo’s legal team is also seeking to halt his deportation by arguing his two young children would be harmed. Immigrants who have lived in the U.S. illegally for at least 10 years can apply for a cancellation of removal if an American citizen would suffer “exceptional and unusual hardship.”

It’s a tough bar to meet, and it doesn’t help Arturo’s case that he has a few convictions for misdemeanors, including breaking a store window when he was drunk and possession of marijuana. But his advocates argued that these are minor and were related to the traumas he suffered as a child. He told the court he stopped using marijuana and alcohol after his children were born, to set a “good example.” His advocates said he also has an employer who believes in him, and wants to hire him back.

Because Arturo is the primary breadwinner, they argued deporting him would put the children at risk of homelessness. His partner, the children’s mother, is already fighting eviction proceedings. And Arturo said the stress from his detention has caused his seven year-old son to wet the bed and barely eat. But McCarthy, of I.C.E., argued that the children seem healthy and are not experiencing “exceptional and unusual hardship.”

The judge had to stop the proceedings at noon because she had too many other cases that day. She scheduled Arturo’s next hearing in February, almost a year after he was sent to detention.”

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Go to Beth’s full article at the link for a fantastic picture of Courtney and her Supervisory Attorney Sarah Deri Oshiro. Way to go, Courtney and Sarah!

These days, in retirement, in addition to writing, I attend many events, give lots of speeches, and guest lecture at law schools and colleges, all largely directed at pointing out why refugees and other migrants make America great, the sad state of our United States Immigration Court System, the overwhelming importance of working to force our Immigration Courts to live up to their unfulfilled promise to “guarantee fairness and due process for all,” and the compelling need for reforms to make the Immigration Courts independent from the Executive Branch.

Almost everywhere I go, I run into great attorneys who once were Judicial Law Clerks or interns for the U.S. Immigration Court in Arlington, appeared in Immigration Court under clinical practice programs sponsored by local law schools (like Georgetown’s famous CALS Asylum Clinic), or are former students who took my Refugee Law and Policy (“RLP”) course at Georgetown Law in 2012-14. There are all, without exception, doing absolutely wonderful things to advance the cause of fairness and due process for migrants.

They are all over: projects like Bronx Defenders, NGOs, pro bono organizations, big law, small law, public interest law, courts, government agencies, Capitol Hill, academia, journalism, management, and administrative positions. I call them the “New Due Process Army” and they are going to keep fighting the “good fight” to force the Immigration Courts and the rest of our justice system to live up to the promise of “fairness and due process for all” whether that takes two years, ten years, twenty years, or one hundred years. If we all keep at it and support one another it will eventually happen!

Last night, I was at a very moving retirement ceremony for Shelly Pitterman, the United Nations High Commissioner for Refugees Regional Representative for the United States and the Caribbean. Fortunately, Shelly is going to remain in the human rights field, joining Mark Hetfield and the other wonderful folks over at the Hebrew Immigrant Aid Society (“HIAS”). I wish I had gotten to know Shelly better. He was repeatedly described as a dynamic leader who inspired everyone around him to perform at a higher level (just like Aaron Rodgers of the Pack), apparently even on the softball field!

In attendance were two of our “total superstar” former Arlington Immigration Court legal interns, Katie Tobin and Lindsay Jenkins, both Assistant Protection Officers (one of the most coveted jobs) with the UNHCR. Accomplished attorneys, dynamic leaders, and terrific role models in they own rights, Katie and Lindsay are using their education and experience to live out their deeply held values every day and to help make the world a fairer, more humane, and better place for all of us. Both of them represent the true values of the real America: fairness, scholarship, respect, teamwork, and industriousness (not to mention a sense of humor).

To Courtney, Katie, Lindsay, and all the other “soldiers” of the “New Due Process Army” thanks for what you are doing for all of us every day! It is an honor to know you and to have played a role, however modest, in your quest to make the world an even greater place.

PWS

01/20/17

Why The U.S. Immigration Court In NYC Is Overwhelmed: Listen & Read WNYC/NPR Senior Reporter Beth Fertig’s Report (Quoting Me) Here! Without Reforms, Due Process Is In Peril! Why Not “Give Due Process A Chance?”

http://www.wnyc.org/story/why-new-yorks-immigration-courts-are-so-busy/

“This is why experts say it’s hard to imagine Donald Trump deporting more criminal immigrants than Obama. “I think this administration already takes a fairly broad view of who is a criminal,” said Paul Wickham Schmidt, who was an immigration judge in Arlington, Virginia for 13 years.

Trump has claimed there are two to three million undocumented immigrants with criminal convictions. The government has said that number is actually just below 2 million and includes non-citizens who are in the country legally (like Bilanicz), as well as undocumented immigrants.

The government has put more resources into immigration enforcement. But Schmidt said it hasn’t done enough to help the court system meet the growing demand. There were fewer than 300 immigration judges for the whole country last year, and they were hearing more than 220,000 cases. Schmidt said even 100 additional judges would barely keep up with incoming cases, let alone the backlog.

“If you start doing the half million cases that are pending then you’re going to fall behind on the incoming cases,” he said.

. . . .

Judges have also complained that the government fast-tracked unaccompanied minors and families from Central America and Mexico who crossed the border in a “surge” a couple of years ago. These recent arrivals got priority over immigrants who had been waiting years for their hearings or trials, leading to bigger backlogs.

. . . .

The whole [Master Calendar] process took about five minutes for each case, and [Judge Amiena] Khan was scheduling future court appearances as late as August of 2018. This isn’t so bad given, that Schmidt said he was scheduling hearings for 2021 before retiring last summer. But one lawyer in court that morning, Shihao Bao, agreed the system couldn’t possibly handle more cases unless Trump wanted to “take away due process.”

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To paraphrase Chief Justice John Robert’s spot-on observation in the immigration case Nken v. Holder, 556 U.S. 418, 421 (2009), providing due process in an individual case takes time: “[S]ometimes a little; sometimes a lot.” As I have said numerous times on this blog, the “just peddle faster approach” to due process in the U.S. Immigration Courts, unsuccessfully tried by past Administrations, isn’t going to “cut it” for due process.

And, cutting corners is sure to be more expensive to the taxpayers in the long run when Article III U.S. Courts of Appeals inevitably intervene and use their independent authority to stop the “assembly line” approach to justice and force the return of numerous cases to the Immigration Courts for “redos,” sometimes before different Immigration Judges.

I’m relatively certain that some of the Ashcroft-era cases “bounced back” by the Courts of Appeals are still kicking around the Immigration Courts somewhere without any final resolutions. With the help of the local immigration bar and the ICE Office of Chief Counsel I finished up a fair number of these “oldies” myself during my time at the Arlington Immigration Court. By the time the cases finally got to my Individual Hearing calendar, most of the individuals involved had qualified for relief from removal or, alternatively, had established lengthy records of good behavior, tax payment, contributions to the community, and U.S. family ties that made them “low priorities” for enforcement and resulted in an offer of “prosecutorial discretion” from the Assistant Chief Counsel.

In the Arlington Immigration Court, the Office of Chief Counsel had a strong sense of justice and practicality and was a huge force in helping to get “low priority” cases off the docket whenever possible consistent with the needs and policies of their DHS client. But, I know that the Offices of Chief Counsel in other areas did not perform at the same consistently high level.

Rather than having enforcement efforts stymied and having to redo cases time and time again to get them right, why not invest in providing really great fairness and due process at the “retail level” of our justice system: the United States Immigration Courts? Getting it right in the Immigration Courts would not only save time and money in the long run by reducing appeals, petitions for review, and actions for injunctions directed to higher courts, but would also produce a due process oriented Immigration Court system we could all be proud of, that would have great credibility, and that would serve as an inspiring example of “best practices” to other courts and even to immigration systems in other countries. After all, the “vision” of the U.S. Immigration Courts is supposed to be: “Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.” Why not “give due process a chance?”

PWS

01/17/17

Jeffrey Chase, an immigration lawyer and former New York immigration judge, said it’s not surprising that Esperanza and Josue would each lose asylum. Judge Spencer only started last fall and is on probation for her first two years in the job.

CORRECTION: An earlier version of this posting incorrectly identified Beth’s network affiliation. She reports for WNYC.

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THREE OF THE “DUE PROCESS WARRIORS” FROM THE LEGAL AID & JUSTICE CENTER OF VIRGINIA: Amy Woodard, Tanishka Cruz, & Simon Sandoval-Moshenberg

And, here’s the latest from the fabulous Dan Kowalski, “Chief Immigration Guru” at LexisNexis Immigration Community:

Thanks to the efforts of the Rocky Mountain Immigrant Advocacy Network (“RMIAN”).

Passage of HB19-1042: Extension of State Court Jurisdiction for Vulnerable Youth

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ADR = “Aimless Docket Reshuffling”

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