"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Legal asylum seekers from Central America might have thought that cruelty, illegality, and stupidity went out with the Trump Administration. They were wrong! Now Biden proposes to lawlessly “presume denial” of asylum — with no legal basis — and dump legal asylum seekers of color from his “disfavored nations” back into Mexico, whose asylum system is dysfunctional and where abusive treatment of asylum seekers has been well documented and recognized by a Federal Court! Women suffering from gender-based persecution are particular targets of this Administration’s campaign against humanity! Artist: Monte Wolverton Reproduced under license
Many groups issued immediate statements of outrage and protest at this cruel, lawless, and intellectually dishonest betrayal! I set forth two of them here:
From the American Immigration Council:
PRESS RELEASE
Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban
WASHINGTON, Feb. 21, 2023—Today, the U.S. Department of Justice and the U.S. Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that will implement a new asylum transit ban—one of the most restrictive border control measures to date under any president. The policy will penalize asylum seekers who cross the border irregularly or fail to apply for protection in other nations they transit through on their way to the United States.
As described in the NPRM, the proposed asylum transit ban rule would all but bar asylum for any non-Mexican who crosses the U.S.-Mexico border between ports of entry, unless they had previously applied for—and been denied—asylum in another country before arrival.
Specifically:
The rule would apply to all non-Mexican migrants (except unaccompanied minors) who had not been pre-approved under one of the Biden administration’s parole programs, which are currently open only to certain nationals of 5 countries; pre-register at a port of entry via CBP One or a similar scheduling system (or arrive at a port of entry and demonstrate they could not access the system); or get rejected for asylum in a transit country.
During an asylum seeker’s initial screening interview with an asylum officer, the officer will determine whether the new rule applies to them. If so, they will fail their credible fear screening unless they can demonstrate they were subject to an exception such as a medical emergency, severe human trafficking, or imminent danger—which would “rebut the presumption” of ineligibility.
Migrants subject to the rule, who do not meet the exceptions above, would be held to a higher standard of screening than is typically used for asylum (“reasonable fear”). If a migrant meets that standard, they will be allowed to apply for asylum before an immigration judge—although the text of the proposed regulation is unclear on whether they would actually be eligible to be granted asylum.
Migrants who do not meet the credible or reasonable fear standard can request review of the fear screening process in front of an immigration judge.
Once the regulation is formally published in the Federal Register, the public will have 30 days to comment on the proposal. The administration is legally required to consider and respond to all comments submitted during this period before publishing the final rule, which itself must precede implementing the policy. Given the Biden administration’s expectation that the new rule will be in place for the expiration of the national COVID-19 emergency on May 11, and the potential end of the Title 42 border expulsion policy at that time, the timeline raises substantial concerns that the administration will not fulfill its obligation to seriously consider all comments submitted by the public before the rule is finalized.
Furthermore, the sunset date for the new rule, two years after it becomes effective, is after the end of the current presidential term—making it impossible to guarantee it will not be extended indefinitely.
In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court.
The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border.
Jeremy Robbins Executive Director American Immigration Council PHOTO: AIC websitel
The following statement is from Jeremy Robbins, Executive Director, The American Immigration Council:
“President Biden committed to restoring access to asylum while on the campaign trail, but today’s proposal is a clear embrace of Trump-style crackdowns on asylum seekers, many of whom are fleeing from globally recognized oppressive regimes. For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here. The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.
“Not only is the new asylum transit ban illegal and immoral, if put into place as proposed, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. While the rule purports to be temporary, the precedent it sets—for this president or future presidents—could easily become permanent.
“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States. Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”
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For more information, contact:
Brianna Dimas 202-507-7557 bdimas@immcouncil.org
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From the Lutheran Immigration & Refugee Services:
FOR IMMEDIATE RELEASE
February 21, 2022
Contact: Tim Young | tyoung@lirs.org
Washington, D.C. – In preparation for the end of Title 42 asylum restrictions, the Biden administration announced a new proposed rule severely limiting asylum eligibility for those who did not first seek protection in a country they transited through to reach the United States, or who entered without notifying a border agent. The proposed rule will be subject to a 30-day period of public comment before it can take effect.
The new rule mirrors a transit asylum ban first implemented under the Trump administration, which was ultimately struck down by federal judges in multiplecourts. The Immigration and Nationality Act (INA) provides that people seeking protection may apply for asylum regardless of manner of entry, and does not require them to have first applied for protection in another country.
Krish O’Mara Vignarajah CEO Lutheran Immigrantion & Refugee Service
In response to the proposed asylum eligibility rule, Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, said:
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration. This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.
While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry. It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers, and overwhelming demand. Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values.
We urge the Biden administration to reverse course before this misguided rule denies protection to those most in need of it. Officials must recognize that decades of deterrence-based policies have had little to no impact in suppressing migration. Instead, they should focus on managing migration humanely through expanded parole programs, efficient refugee processing in the hemisphere, and an equitably accessible asylum system.”
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Lest anyone believe the absolute BS coming from the Biden Administration that they “had no choice” and that this “wasn’t the choice they wanted,” here’s an article setting forth the many southern border solutions that the Administration ignored or was too incompetent to carry out in their dishonest, immoral pursuit of the anti-asylum “vision” of Stephen Miller and other White Nationalists.
💡💡”There’s many things Biden could do. We published a resource called “Forty-Two Border Solutions That Are Not Title 42.” We could have done 142,” says immigration expert Danilo Zak in The Border Chronicle! The Biden Administration has ignored, failed, or is prepared to shrug off most of them!🤯
Danilo Zak Associate Director of Policy and Advocacy Church World Service PHOTO: The Border Chronicle
Zak was interviewed by Melissa Del Bosque of The Border Chronicle:
There are many changes that the Biden administration and Congress could make to alleviate suffering at the southern border. Immigration policy expert Danilo Zak recently published a report that offers several solutions, from rebuilding the refugee resettlement program to expanding nonimmigrant work visas to more countries in the Western Hemisphere.
Zak, formerly of the National Immigration Forum, is Associate Director of Policy and Advocacy for the nonprofit Church World Service. He spoke with The Border Chronicle about the increase of forcibly displaced people in the Western Hemisphere and the current situation at the border. “For many, there is no line to get into—no ‘right way’ to come to the U.S.,” Zak says.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
Notably, better, more robust, use of Refugee Programs established by the Refugee Act of 1980 is among Zak’s “top three.” This is something that I have been “touting” since Biden was elected, but where the Administration has failed to meet the challenge.
And, contrary to what the Administration and others might say, there is nothing unachievable about using refugee programs to deal with emergency humanitarian situations. Also, with respect to cases taking forever to process, no need for that nonsense. It’s a matter of poor bureaucratic execution rather than a defect in the legal authority.
The Refugee Act of 1980 (“RA 80”) is basically a modified version of the “emergency parole, resettle with NGOs, and petition Congress to adjust status” that was used on an ad hoc basis to resettle Indochinese refugees and others on an emergency basis prior to the RA 80. Except, that the criteria, resettlement mechanisms, and adjustment process were all “built in” to the statute. Consequently, although Congress was to be consulted in advance, that process was designed to run smoothly, efficiently, and on an emergency basis if necessary.
While “Congress bashing” is now a favorite pastime of the Executive, Judiciary, and media, in 1980 Congress actually provided a mechanism to regularize the processing of type of refugee flows now facing the U.S. The statutory flexibility and the legal tools to deal with these situations are in RA 80.
A subsequent Congress even added the “expedited removal” and “credible fear” process so that initial asylum screening could be conducted by expert Asylum Officers at or near the border and those “screened out” would be subject to expeditedremoval without full hearings in Immigration Court. Clearly, there was never a need for the Title 42 nonsense for any competent Administration.
Basically, if an Administration can run a large-scale parole program, which the Biden Administration did for Afghanistan and is doing now for Cuba, Nicaragua, Venezuela, and Haiti, it can run a legal refugee program beyond our borders, even in a “country in crisis” if necessary.
The idea that a statutory scheme specifically designed to have the flexibility deal with future mass refugee situations couldn’t be used to deal with the current humanitarian situation in the Western Hemisphere is pure poppycock!
Also unadulterated BS: The Biden Administration’s proposal to make the “end of asylum” at the southern border “temporary,” for two years! In 2025, the Biden Administration might not even be in office. If there is a GOP Administration, you can be sure that the demise of asylum at the border will become permanent, with or without legislation.
Also, what would be an Administration’s rationale for resuming asylum processing at the southern border in two years. Surely, there will be some other “bogus border crisis” cooked up to extend the bars. And, if there is no such crisis, the claim will be that the bars are “working as intended” so what’s the rationale for terminating them.
The argument that complying with the law by fairly processing asylum seekers regardless of race, ethnicity, religion, or manner of arrival, as the law requires, might actually encourage people to apply for protection will always be there — hanging over cowardly politicos afraid of the consequences of granting protection. Fact is, the current Administration has so little belief in our legal system and their own ability to operate within in, and so little concern for the human lives involved, that they are scared to death of failure. That’s not likely to change in two years — or ever!
Anna Flagg is The Marshall Project’s senior data reporter.
Julia Preston is a contributing writer at The Marshall Project.
This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletters, and follow them on Twitter, Instagram and Facebook.
During their harrowing journey from Venezuela to the Texas border, the three Zaragoza children liked to imagine the refuge they would find when they reached the United States, a place where they would finally be free from hunger and police harassment and could simply be kids
Instead, when they reached the border in March, they were detained — dirty with mud from the Rio Grande and shivering with cold — in frigid cinder block cells. They spent sleepless nights on cement floors, packed in with dozens of other children under the glare of white lights, with agents in green uniforms shouting orders.
The siblings were booked by officers who asked questions they didn’t understand and were told to sign documents in English they couldn’t read. Even after their release three days later, they feared the U.S. would never be the haven they had longed for.
Since early 2017, one of every three people held in a Border Patrol facility was a minor, a far bigger share than has been reported before now, according to an analysis by The Marshall Project of previously unpublished official records. Out of almost 2 million people detained by the Border Patrol from February 2017 through June 2021, more than 650,000 were under 18, the analysis showed. More than 220,000 of those children, about one-third, were held for longer than 72 hours, the period established by federal court rulings and an anti-trafficking statute as a limit for border detention of children.
For most young migrants crossing without documents, the first stop in the U.S. is one of some 70 Border Patrol stations along the boundary line. The records reveal that detaining children and teenagers has become a major part of the Border Patrol’s everyday work. The records also show that conditions for minors have not significantly improved under President Joe Biden. While the numbers of kids in Border Patrol custody peaked in 2019 under former President Donald Trump, they rose again when Biden took office and have remained high.
Those numbers could surge to new highs when the Biden administration eventually lifts Title 42, a public health order that border authorities have used for more than two years to swiftly expel most unauthorized border crossers, including many children.
But the Border Patrol has resisted making changes to its facilities and practices to adapt to children, even while officials acknowledge that the conditions young people routinely face are often unsafe.
“A Border Patrol facility is no place for a child,” Homeland Security Secretary Alejandro Mayorkas, the nation’s highest immigration official, has repeatedly said. However, even now, as authorities are scrambling to beef up enforcement and expand detention capacity in preparation for a post-Title 42 influx, the Border Patrol’s basic approach to kids remains the same: Just move them out of custody as fast as possible.
Without broader changes, many thousands of kids seeking protection will remain at risk for harsh, demeaning and sometimes dangerous treatment as their first experience of the United States.
. . . .
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Read Anna’s and Julia’s complete, disturbing, infuriating report at the link. Unnecessary, immoral, inappropriate, and just plain stupid and evil! Did I mention stupid and evil?
Thanks, in part, to the Trump Administration’s policies of racist child abuse masquerading as “immigration enforcement,” there is a large body of recent, available, accessible empirical data on the devastating effects on children, families, society, and our world’s future of immigration enforcement that targets children, teens, and other vulnerable groups!
The “perps” of these repulsive policies will “check out” at some point in the future. The Biden Administration, which pledged to do better but disgracefully hasn’t delivered, also can’t and should not escape accountability.
The damage they are inflicting on future generations and the ability of our world to harness and utilize in a cooperative fashion the “human capital” needed for our planet’s and humanity’s survival is totally unacceptable! People of intelligence, courage, energy, innovation, and compassion must work together to stop this disgraceful abuse. Those chosen as responsible leaders and officials in the future must represent “our better angels!” 😇
While those of us in the “senior generation” who believe in social justice and a better future for humanity will continue the fight, our “time on the stage” is inexorably winding down. It will be up to the NDPA and the rest of the upcoming generation — in America and elsewhere — to decide what kind of world they want to live in and what they are willing to do, and sometimes sacrifice, to make it happen.
As I have said many times: “We can diminish ourselves as a nation, but it won’t stop human migration!”
It’s past time for a better, more realistic, more human, and “robustly humane” approach to human migration!😎 One that focuses on the long-term welfare of children and society, NOT short-term mythical “enforcement goals” or fears!
Somewhat reminiscent of how the Chinese workers who were key to building the transcontinental railroad were “rewarded” with the Chinese Exclusion Act and more than a century of anti-Asian bias and hate that continues today.
☹️Unfortunately, America has a long unhappy history of mistreating, exploiting, and demonizing immigrants whose hard work, courage, and perserverance against the odds built our nation into what it is today! Old habits of bias, ingratitude, false racial supremacy, and vilification of “the other” — or at least the “perceived other,” since in truth we’re all important parts of the real America— are hard to break. But, it would be a real boost for our nation and humanity if we could overcome the darker part of our past and move forward as one.
Thanks for sending this important piece my way, Julia!
“The immigration courts were completely upended by the Trump administration, but what awaits them under this new administration? Join Immigration Judge Amiena Khan, President of the National Association of Immigration Judges, and Julia Preston, Contributing Writer at The Marshall Project, for a discussion on the future of the immigration courts.
The two will discuss where the judge’s union stands in its decertification fight; what judges are hoping to see from this administration and what the lasting impacts of the past 4 years will be.
Join us at 1 pm on July 23rd, 2021
Panelists:
Hon. Amiena Khan:
Judge Khan is the President of NAIJ. Judge Khan was appointed as a United States Immigration Judge in New York by Attorney General Eric Holder in December 2010. In her personal capacity, she is a member of the Federal Bar Association (FBA) and is the Vice-Chair of the Federal Bar Association Immigration Law Section.
Judge Khan is appearing in her capacity as President of NAIJ. Her views do not represent the official position of the Department of Justice, the Attorney General, or the Executive Office for Immigration Review. Her views represent her personal opinions, which were formed after extensive consultation with NAIJ membership.
Julia Preston:
Julia Preston is a Contributing Writer at The Marshall Project. Preston previously worked for 21 years at The New York Times. She was the National Correspondent covering immigration from 2006 through 2016, and a correspondent in Mexico from 1995 through 2001, among other assignments. She is a 2020 winner of an Online Journalism Award for Explanatory Reporting, for a series by The Marshall Project on myths about immigration and crime. She was a member of the Times staff who won the 1998 Pulitzer Prize for reporting on international affairs, for a series on the corrosive effects of drug corruption in Mexico.
Time
Jul 23, 2021 01:00 PM in Eastern Time (US and Canada)
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Should be a great panel from two real experts from the NDPA!
Sadly, however, it’s not clear that Judge Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and others who are supposed to be fixing the dysfunction will be among the audience. Nor do I see much concrete evidence that they have established a meaningful dialogue with those, like Amiena and Julia, who have the expertise and creative problem solving ability to fix the DOJ’s embarrassingly broken “courts” before more migrants and their attorneys are abused.
In my view, and the view of many others, the “destructive phase” of the last four years moved much more rapidly and with more purpose than the “reconstructive and improvement phase” that was promised by the Biden Administration.
There are still far too many of those who were “part of the problem” in key positions, and far, far too few, if any, dynamic new faces who have been brought in (or promoted from within) with the capability and the mandate to fix the mess, establish progressive values, and return to a due process/fundamental fairness/best practices focus!
There are “reliable rumors” of some better appointments in the offing. But, it hasn’t happened till it happens.
The True Costs of Deportation
When immigrant parents of American children are expelled, the lives of their loved ones can fall apart. Here are the stories of three families who faced financial ruin, mental health crises—and even death.
By JULIA PRESTON
Before her husband was deported, Seleste Hernandez was paying taxes and credit card bills. She was earning her way and liking it.
But after her husband, Pedro, was forced to return to Mexico, her family lost his income from a job at a commercial greenhouse. Seleste had to quit her nursing aide position, staying home to care for her severely disabled son. Now she is trapped, grieving for a faraway spouse and relying on public assistance just to scrape by.
She went, in her eyes, from paying taxes to depending on taxpayers. “I’m back to feeling worthless,” she says.
This story was published in partnership with The Guardian.
Across the country, hundreds of thousands of American families are coping with anguish compounded by steep financial decline after a spouse’s or parent’s deportation, a more enduring form of family separation than President Trump’s policy that took children from parents at the border.
Trump has broadened the targets of deportation to include many immigrants with no serious criminal records. While the benefits to communities from these removals are unclear, the costs—to devastated American families and to the public purse—are coming into focus. The hardships for the families have only deepened with the economic strains of the coronavirus.
A new Marshall Project analysis with the Center for Migration Studies found that just under 6.1 million American citizen children live in households with at least one undocumented family member vulnerable to deportation—and household incomes drop by nearly half after deportation.
About 331,900 American children have a parent who has legal protection under DACA, or Deferred Action for Childhood Arrivals, the program that shields immigrants who came here as children. After the Supreme Court ruled on Thursday that Trump’s cancellation of the DACA program was unlawful, those families still have protection from deportation. But the court’s decision allows the president to try to cancel the program again. The debate cast light on the larger population of 10.7 million undocumented immigrants who have made lives in the country, raising pressure on Congress to open a path to permanent legal status for all of them.
We examined the impact of the wrenching losses after deportation and the potential costs to American taxpayers of expelling immigrants who are parents or spouses of citizens.
After an immigrant breadwinner is gone, many families that once were self-sufficient must rely on social welfare programs to survive. With the trauma of a banished parent, some children fail in schools or require expensive medical and mental health care. As family savings are depleted, American children struggle financially to stay in school or attend college.
Three families in northeastern Ohio, a region where Trump’s deportations have taken a heavy toll, show the high price of these expulsions.
. . . .
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Read the rest of Julia’s article at the link.
This isn’t the first time in American history that invidious racially-motivated enforcement of bad laws has been used to dehumanize or abuse “the other” while hiding behind transparently fake law enforcement pretexts. Poll taxes anyone?
A straightforward reading of our Constitution says that removing parents of U.S. citizens and breadwinners of American families without compelling reasons for doing so (lacking in these cases) is unreasonable and therefore a violation of Due Process. It’s time to stop doing the immoral and unconstitutional! And it’s past time to insure that public officials like Albence who promote and defend these assaults on humanity are removed from power.
The current institutions of Government have initiated, carried out, or failed to stop these illegal actions. Disappointing, but perhaps not surprising, considering that the nation, by minority vote, enabled a scofflaw White Nationalist regime in 2016.
But, voters still have the political power to oust the abusers of humanity and purveyors of racially-motivated lies and false narratives, and to insist on long-overdue changes to the system to make due process (reasonability), fundamental fairness, and equality under the law a reality for the first time in U.S. history, rather than continuing to be the Constitution’s intentionally unfulfilled promises.
Young immigrants across the country were elated after the Supreme Court’s favorable ruling Thursday for DACA, the program that temporarily shields about 650,000 undocumented people from deportation. But Maria Garcia is not cheering—at least not yet.
Garcia, who is 17 and just finished high school in Tempe, Arizona, has everything needed to be eligible for DACA. She was 4 years old when her Mexican parents sent her across the border with a smuggler—“some random lady,” as she remembers it. She has never been in legal trouble and graduated with a 4.0 grade point average. She is two years older than the program’s lower age limit of 15.
Yet Garcia has not been able to apply for DACA. After President Trump’s decision to cancel the program in 2017, and the court fights that followed, immigrants who already had two-year permits under DACA have been allowed to renew them. But no new applications were accepted.
She is in a cohort of foreign-born teenagers, part of a group sometimes called Dreamers, who turned 15 after the program was terminated on Sept. 5, 2017. They are coming of age without legal papers, facing fears, frustrations and roadblocks that immigrants just a few years older have avoided with DACA. There are about 66,000 of them, according to an estimate by the Migration Policy Institute, a non-partisan research center, and they could be eligible to apply for DACA after the Supreme Court decision.
But it is not clear that Trump will let them in.
Lawyers are debating the impact of the Supreme Court’s ruling. In a 5-to-4 decision, the court found that the Trump administration acted unlawfully in ending the program, failing to follow procedural rules or to take into account the hardships for immigrants who had built their lives around it. The court sent the matter back to the Department of Homeland Security “so that it may consider the problem anew,” and sent three cases back to lower courts for further action.
Trump, who once called DACA holders “incredible kids,” immediately threatened to cancel the program again.
As President of the United States, I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again.
Chad Wolf, the acting secretary of Homeland Security, said the ruling “usurps the clear authority of the executive branch to end unlawful programs.” But administration officials issued no guidance on how they planned to proceed.
Some legal scholars argued that the administration is required to restore the program with no delay and begin taking new applications. “The effect of the ruling is we go back to life as it was before September 2017,” said Marisol Orihuela, a professor at Yale Law School.
Others predicted the administration would not accept new applications unless, after further court battles, a judge orders them to re-open the program completely. If Trump moves to end DACA again, bureaucratic procedures and court fights would likely leave the current configuration in place past the election in November.
The legal fog was bewildering to young people who could be receiving DACA’s protections but are still left out.
“What happened is one step,” Garcia said guardedly of the Supreme Court’s ruling, by phone from her home in Phoenix, “but we still have a way to go.”
Reyna Montoya, who lives in Gilbert, Arizona, knows her own DACA permit is preserved for now, but she worries about undocumented students. MATT YORK/ASSOCIATED PRESS
The Obama administration created DACA, or Deferred Action for Childhood Arrivals, in 2012, and the program doesn’t grant a formal immigration status. For undocumented immigrants who came here as children, it offers temporary protection from deportation and a two-year, renewable work permit with a Social Security number. But the program removed obstacles many young people faced because of their lack of legal status, opening door after door.
“Within a year, they were already taking giant steps,” said Roberto Gonzales, a professor at Harvard Graduate School of Education who has studied the program since it started. “They found new jobs. They increased their earnings. They acquired driver’s licenses. They began to build credit through opening bank accounts and obtaining credit cards.”
For Garcia, however, Trump’s cancellation of DACA just when she was old enough to apply was a painful blow.
Aside from her schoolwork, she started running track for her Tempe high school. By senior year she was the school’s top runner, she said. But as she applied to colleges and scholarships, she received only impersonal form letters of rejection because she didn’t have a Social Security number.
“I basically didn’t know where I was going in my life,” she said. “I wanted to give up.”
At the last minute she discovered a scholarship program called TheDream.US, which provides financial aid for college even if students are undocumented. She was approved and plans to attend Arizona State University in the fall, hoping to study aerospace engineering.
As protesters are marching against police brutality and demanding reforms, Garcia said she is even more aware of her fears of government authorities anytime she goes out into the street. To get to school she sometimes has to drive, and with no license because of her immigration status, her anxiety spikes when she sees a police car.
Garcia said she doesn’t fear “being shot and actually dying” in a police encounter. “But we do have that fear of being deported.”
Reyna Montoya, a DACA holder who is 29, created Aliento, an organization in Phoenix that provides support for immigrant youth. More than 500 teenagers who have been shut out of DACA have come to the group for legal and financial help, and solace.
“I feel I can finally catch my breath,” Montoya said on Thursday, knowing her own DACA permit is preserved for now. But she remains surrounded by students “like my past undocumented high school self, who was so sad and depressed about my future.”
One is Milagros Heredia, 18, whose mother carried her across the border to Arizona when she was nine months old. Her mother, Rosa Alcantar, is 36 and has a DACA permit.
Milagros Heredia and her mother, Rosa Alcantar, in 2019. COURTESY OF MILAGROS HEREDIA
Heredia’s childhood was spent in hospitals and chemotherapy after doctors found a large tumor in her brain. Her worry then was the mortification of losing her hair. “Appearances were everything in third grade,” she said.
Doctors determined the tumor was growing but benign. In high school Heredia became an honors student and a leader of a Latinx student organization. Having won a scholarship from TheDream.US, she plans to enroll at Grand Canyon University in August.
She was relieved Thursday to learn that her mother’s DACA permit remains in place. But Heredia still can’t work or drive legally. She has to be careful looking for part-time jobs to help her family.
“You’re never sure who’s with you and who’s against you,” she said.
She’s been watching the police protests in Phoenix. “In the back of my head I always know the police could stop me,” she said, and because of her undocumented status, “I potentially could lose everything.”
Julia Preston covered immigration for The New York Times for 10 years, until 2016. She was a member of The Times staff that won the 1998 Pulitzer Prize for reporting on international affairs, for its series that profiled the corrosive effects of drug corruption in Mexico. She is a 1997 recipient of the Maria Moors Cabot Prize for distinguished coverage of Latin America and a 1994 winner of the Robert F. Kennedy Award for Humanitarian Journalism.
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Always an honor to feature Julia, a “First Ballot Hall of Famer” among journalists, on Courtside. Few in America have done more to show the human side and human effects of immigration law and their inextricable ties to the continuing battle for social justice for all.
One of many great things about retirement is having a chance to get to know the “real persons behind the mastheads and bylines” among immigration and justice reporters. They are right up there with pro bono immigration lawyers and human rights activists among those who embody the very best and most courageous our nation has to offer.
Notwithstanding the Chief Justice’s fantastic claim, incredibly joined by seven of his intellectual-honesty-and-basic-Con-Law-challenged colleagues, that there was no showing of racial animus in the DACA repeal, that is, of course, untrue, as almost any honest observer recognizes.
Only Justice Sonia Sotomayor had the courage, integrity, and decency to acknowledge the overt bigotry and racism that motivates every Trump immigration policy. It’s almost like the other eight Justices don’t know who Stephen Miller is and what he stands for. Or, they never heard Trump spew out his racist dog whistles at his rallies or on Twitter. Or, they have never compared the faces of those behind Trump at his rallies with pictures of White hate at the Museum of African American History or the pictures from Hitler rallies at the Holocaust Museum. Or, they weren’t able to comprehend Dana Milbank’s recent exposition of Trump’s racism in Trump’s own words. But, of course, they do know all these things. Full well! There’s ignorance. Then there is willful ignorance by those who know better!
Every aspect of the Trump regime’s vicious attack on the legal rights and humanity of migrants has been motivated by an ugly combination of racism, bigotry, White Nationalism, and wanton cruelty. You need to look no further than Trump’s contemptuous, belligerent, and ignorant reaction to the ruling to see that nothing except racism and using Dreamers as “hostages” for race-driven immigration “reforms” was ever behind the attack on DACA.
For Justices, who are law school grads and members of the bar, to take seriously the regime’s patently bogus claim of prosecutorial illegality (actually rationality) on the part of the Obama Administration from an Administration that has actively chosen not to enforce a myriad of duly enacted environmental, civil rights, voting rights, healthcare, ethics, consumer safety as well as immigration benefits laws while declining to prosecute serious crimes and devoting prosecutorial time to punishing border crossers is, of course, beyond preposterous. The bad faith and dishonesty dripping from Justice Thomas’s absurdist dissent in DHS v. Regents shows why the Court as an institution has become disreputable during the TrumpAdministration.
As pointed out by Adam Serwer in The Atlantic, https://apple.news/Akv4yN8i5Qv-Rz6r79m_O7Q, Roberts essentially begged Trump to take the time and effort to create some, minimal non-racist, totally bogus but facially rational “pretext” for the termination, so that he and other righty judges would have some “cover” for future votes to uphold or enable invidiously racist policies directed against the Latino and Black communities, as they had dutifully done in the past. He also implicitly suggested that Trump keep his big mouth shut, lock Stephen Miller in the White House basement, and let the Noel Franciscos, Billy Barrs, Cooch Cooches, and other members of Trump’s ethics-and-morality-free “legal team” finish the hatchet job on the Dreamers. Additionally, he hinted that Trump would do well to “bury” this issue till after the election.
I don’t see this regime as giving any quarter to Dreamers. Since their malicious incompetence has bankrupted once-flush USCIS, which they are now, outrageously, “holding for ransom” that the House Dems should refuse, I doubt that Trump will bother to comply with any part of the ruling unless specifically ordered to do so under penalty of contempt in an individual case. Maybe not even then. After all, since his corrupt acquittal by the Senate he has openly advertised that he now is above any law. He’s too busy spreading disease, dismantling the justice system, and trying his hardest along with Billy Barr to provoke racial strife throughout the nation. Why bother with the mere “mechanics” of government of which he knows nothing and cares even less.
Roberts has asked little of an Administration that he has basically allowed to operate outside the law and human morality, for the most part. His “ask” in this case is exceedingly modest. In an earlier case where Trump failed to deliver, Roberts only wanted him not to use perjured testimony of a Cabinet Member as a cover for a racially motivated attack on the census. It’s a mark of the deep contempt in which Trump holds Roberts, judges, the Constitution, the rule of law, and humanity that he has chosen to “spit in the Chief Justice’s face,” not to mention the faces of the many young Dreamers who are our path to a better future as a nation.
That would be a nation where the likes of Trump, his GOP toadies, and their enablers are banished from power and public office by the voters, forever. And, a nation that eventually achieves a Supreme Court with Justices who uniformly believe in Constitutionally-required “equal justice for all” and enforce it, rather than just looking for ways to skirt and avoid it while disingenuously hiding their misdeeds behind obvious (sometimes even actively solicited) pretexts and obtuse right-wing “philosophies.” The latter are essentially thin intellectual cover for attacks on humanity and looking the other way when the powerful abuse the vulnerable.
We’re a long way from where we need to be as a nation. But, if we don’t get started on the path this November, the “grand American experiment” will come crashing down in a heap. I doubt that this “Clown Show” can continue, even with Supreme complicity as an ally.
They are children who were caught crossing the southwest border without papers and sent to migrant shelters in New York when the coronavirus was silently spreading. Now the city is a pandemic epicenter in lockdown, but the Trump administration is pressing ahead with their deportation cases, forcing the children to fight in immigration court to stay.
In two courthouses in the center of the besieged city, hearings for unaccompanied children—migrants who were apprehended without a parent—are speeding forward. The U.S. Department of Justice, which controls the immigration courts, has said it has no plan to suspend them.
This week an 8-year-old, a 5-year-old, and a teenage single mother with an infant were preparing for imminent court dates and deadlines in New York, lawyers representing them said. With children trapped indoors in shelters and foster-care homes, many young migrants who don’t have lawyers may not even be aware of ongoing court cases that could quickly end with orders for them to be deported.
Hearings for unaccompanied children are also proceeding in courts in other COVID-19 hotspots, including Los Angeles, San Francisco, Seattle, Chicago and Boston.
The Executive Office for Immigration Review, the Justice Department agency in charge of the immigration courts, has rejected calls from judges, prosecutors and immigration lawyers to shut down courts nationwide. Although hearings for immigrants who are not detained have been suspended through May 1, cases of people in detention are going forward at the same accelerated pace as before the pandemic.
That includes many unaccompanied children. Since last year, Trump administration officials have instructed the courts to treat those children as detained if they are in shelters or foster care under the custody of the Office of Refugee Resettlement, or ORR, a federal agency. Immigration judges are under pressure to complete detained cases within 60 days—warp speed in immigration court—with no exception for children.
Across the country, about 3,100 unaccompanied children are currently in the custody of the refugee agency. Many have run from deadly violence and abuse at home and hope to find safety with family members in the United States. The demands for them to meet fast-moving court requirements are causing alarm among lawyers, caregivers and families.
“It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense, or KIND, which helps provide lawyers for unaccompanied children. Unlike in criminal courts, in immigration court children have no right to a lawyer paid by the government if they cannot afford one.
On April 8, the American Immigration Lawyers Association, the immigration bar, and other legal groups asked a federal court for a temporary restraining order to force the Justice Department to suspend in-person hearings of detained immigrants during the pandemic.
Justice Department officials say they are holding hearings for immigrants in detention, including for children, so they can get their cases decided and perhaps be freed quickly.
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Read the rest of Julia’s report at the link.
The idea, as DOJ claims, that this is being done to facilitate the “freeing” of kids is preposterous on its face.
First, there is nothing stopping them from arranging placements for children without the Immigration Court hearings being completed. It used to be done all the time.
Second, the DOJ has intentionally and unethically rewritten asylum laws through “precedents” aimed primarily at making it harder to qualify for asylum. This abuse of process particularly targets those fleeing persecution resulting from various types of systematic government and societal violence in Central America. The approval rates for these types of cases have fallen to minuscule levels under Trump.
Third, no child has any chance of succeeding in Immigration Court without a lawyer. Almost all lawyers who represent children in Immigration Court serve “pro bono” — or work for NGOs who can only provide minimal salaries.
Yet, the Administration is making these lawyers risk their health and safety, while artificially accelerating the process, all of which actively and aggressively discourages representation.
Added to that is the constant “Aimless Docket Reshuffling,” with Immigration Courts closing, reopening, and re-closing on a moment’s notice and dockets constantly being rearranged as judges, court support staff, interpreters, and DHS lawyers fall ill.
The Administration could work with groups like KIND and other NGOs to arrange placements, and schedule hearings in a manner that promotes health and safety for everyone while maximizing due process. But, the Administration refuses to do this.
Instead, those seeking to inject sanity, common sense, best practices, and human decency into the process are forced to sue the Administration in Federal Court. This further dissipates and diverts already scarce legal resources that could have been used to actually represent children in Immigration Court and arrange safe placements for them.
Finally, as I have noted previously, the Administration has simply suspended the operation of the Constitution and the rule of law at the borders. This means that thousands, including unaccompanied children, are “orbited into the void” without any process whatsoever or any effort to ascertain their situations or best interests.
All of this gives lie to the Administration’s bogus claim that this is about looking out for the best interests of these kids. No, it’s about maximizing cruelty, destroying lives (considered an effective and acceptable “deterrent” in nativist circles), and carrying out a noxious racist White Nationalist restrictionist immigration agenda.
And, to date, Congress and the Federal Courts, both of which have the power to put an end to this disgraceful, unlawful, and unconstitutional conduct have been largely “MIA.”
Nevertheless, thanks to courageous and dedicated journalists like Julia and organizations like KIND, a public record is being made. While those responsible for implementing and enabling these abuses directed at the “most vulnerable of the vulnerable” among us are likely to escape legal accountability, they will eventually be tried and found wanting in the “court of history.”
A string of directives from President Donald Trump’s Justice Department that have reduced the authority of immigration judges and limited their control of their courtrooms has given new urgency to calls for a complete overhaul of the immigration courts.
Those courts now exist within the Justice Department and answer to the attorney general. Proposals for Congress to exercise its constitutional powers and create separate, independent immigration courts have long been dismissed as costly pipe dreams. But under Trump, judges and others in the court system say they are facing an unprecedented effort to restrain due process and politicize the courts with the president’s hard line on immigrants and demands for deportations.
“It’s time for the Department of Justice and the immigration courts to get a divorce,” said Jeremy McKinney, an attorney who is a vice-president of the American Immigration Lawyers Association.
In a letter in July, the immigration lawyers joined the American Bar Association, the Federal Bar Association and the immigration judges’ union to call on Congress to “establish an independent court system that can guarantee a fair day in court.” The idea is percolating in the Democratic presidential contests, with three candidates—Julián Castro, Beto O’Rourke and Sen. Elizabeth Warren—presenting specific plans. Another candidate, Sen. Kirsten Gillibrand, drafted a bill last year to make the change.
The chairman of the House Judiciary Committee, Rep. Jerrold Nadler, a Democrat from New York, said he will hold hearings on the proposals this fall. There is little chance such a plan would have traction in the Republican-controlled Senate.
Under the proposals, the immigration courts would become a stand-alone agency that would not be run or controlled by outside officials, with the goal of insulating judges from political pressure by any administration.
Department of Justice officials say they are working on a fast track to modernize courts that have been relegated to institutional backwaters. They oppose any plan to separate the courts, saying it would create a bureaucratic and legal morass that would do little to resolve massive backlogs and other chronic problems.
The costs and logistical hurdles “would be monumental and would likely delay pending cases even further,” said Kathryn Mattingly, a Justice Department spokeswoman. The proposals present “significant shortcomings, without any countervailing positive equities,” she said.
But several judges, including three who spoke anonymously because they are not authorized to make public statements, said the Trump administration has pushed the courts too far. The latest salvo emerged from a thicket of legal language in a rule issued Monday by the Justice Department. In a major change, it gives the official in charge of running the courts, who is not a sitting judge, the last word in appeals of some immigration cases. It also gave that official—the director of the Executive Office for Immigration Review, the formal name of the immigration court agency—expanded power to set broadly-defined “policy” for the courts.
The judges’ union reacted with alarm. Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said the rule “removes any semblance of an independent, non-political court system.”
The judges’ association was already reeling after receiving what amounted to a declaration of war on Aug. 9, when the Justice Department filed a decertification petition that would bar judges, who are department employees, from being represented by the union.
Former Attorney General Jeff Sessions used his authority extensively, eliminating judges’ ability to close deportation cases and narrowing the path to asylum for migrant families from Central America fleeing domestic abuse, gang violence and cutthroat cartels. In a recent decision, Attorney General William Barr went further to deny families asylum, overruling long-standing opinions by judges.
Late last year the current director of the courts, James McHenry, under pressure from the White House, ordered judges in 10 busy courts to give priority to cases of families seeking asylum, pushing those cases to the front of their dockets while postponing others. Many judges are frustrated with the “rocket dockets,” finding that they deny many immigrants time to prepare for hearings while unreasonably delaying other cases, further stretching out backlogs.
In recent months McHenry, citing budget constraints, began to limit the availability of language interpreters for initial hearings, where judges see immigrants who speak many different languages. Translators have been replaced with videos providing boilerplate explanations of an immigrant’s rights. Judges said the videos are befuddling to immigrants in their first encounter with the court, and take away time for judges to address each person individually.
What really antagonized many judges was the imposition of quotas for finishing cases, tied to their performance reviews. Since last October, judges must complete at least 700 cases a year, with less than 15 percent of decisions being sent back to them by appeals courts. Time limits were set for many other decisions.
To remind judges of their standing, Justice officials designed a speedometer that sits on judges’ computer screens, with green marking numbers of decisions that meet the metrics and stoplight red indicating where they are lagging.
“So you sit down and you see that dashboard staring at you, updated every day, and you have 50 motions on your desk to decide whether to continue a case,” said Denise Noonan Slavin, who retired as an immigration judge in March after 24 years on the bench. The metrics, she said, inevitably discourage judges from granting more time for cases, even if an immigrant presents a valid argument.
“If judges get into that red, they can lose their job,” Slavin said.
Last October the Justice Department initiated performance metrics for immigration judges (referred to as IJs), setting benchmarks that they must complete at least 700 cases a year and finish other decisions within certain time limits. Speedometers sit on judges’ computer screens, with green showing they are on track with their cases and red signaling they are far behind. U.S. DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Most proposals to reconfigure the courts would have Congress act under Article One of the Constitution. The courts would become a separate agency governed by judges, but would remain within the executive branch. There is no appetite for the vast costs and litigation it would take to move the courts to the federal judiciary.
Reformers cite the example of the tax court, which Congress set up in 1969 to have independent judges deciding federal tax disputes, taking them out of the grip of the Internal Revenue Service. Similarly, Judy Perry Martinez, president of the American Bar Association, said in an interview that the immigration courts cannot be fully impartial while they are subordinate to the attorney general, the nation’s top prosecutor.
The Federal Bar Association, which has written a model bill for the transformation, insists it would not be as daunting as it sounds. The bill is drafted “with the idea of simply lifting the courts,” and their budget, out of the Justice Department, said Elizabeth Stevens, chair of the organization’s immigration law section. Under this plan, the courts would remain in existing facilities and current judges would continue to serve for four years before being re-appointed by Senate-confirmed appeals judges to serve in the new system.
Proponents have a harder time explaining how the transition would avoid even more of a bureaucratic sinkhole than existing courts, where the backlog stands at more than 930,000 cases. But Slavin said independent judges would take back their ability to manage cases efficiently, which she said micromanagement under Trump had eroded.
Advocates have few illusions that Trump and a Congress locked in immigration feuds will address their complaints soon. But they want to get the issue on the election year agenda, contending that Democrats and some judicial conservatives among Republicans could vote for an eventual bill.
The Justice Department can be expected to resist. But McKinney, from the lawyers association, said that with the sense of siege in the courts, “Suddenly something that was a dream or a theory is becoming something that could become a reality.”
Julia Preston covered immigration for The New York Times for 10 years, until 2016. She was a member of The Times staff that won the 1998 Pulitzer Prize for reporting on international affairs, for its series that profiled the corrosive effects of drug corruption in Mexico. She is a 1997 recipient of the Maria Moors Cabot Prize for distinguished coverage of Latin America and a 1994 winner of the Robert F. Kennedy Award for Humanitarian Journalism.
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Lost in the shuffle: With all the money poured down the drain on mindless schemes to DENY DUE PROCESS rather than enhance it, after 19 years of “study and development,” EOIR IS STILL WITHOUT A FUNCTIONAL E-FILING SYSTEM!
Plenty of money for absurd “Judicial Dashboards;” none for even minimally competent court administration. And, how about the reduction in essential interpreter services mentioned in Julia’s article? Talk about “malicious incompetence” in action!
Unfortunately, however, the Fourth Circuit’s ruling in Zuniga Romero v. Barr currently only applies in the Baltimore, Arlington, and Charlotte Immigration Courts. This leaves the rest of the country in the type of mass confusion and uncertainty that the Trump Administration strives to create.
It’s past time for the Article III Courts to do their duty, put this patently unconstitutional mess out of its misery, and appoint a “Special Master” to restore at least some semblance of Due Process, fundamental fairness, impartiality, quasi-judicial independence, and competent court management to this system pending Congressional reforms to comply with the Constitution.
Most important: judicial intervention might save some human lives that will otherwise be lost as a result of the “malicious incompetence” with which the Trump Administration regularly has abused the “captive” U.S. Immigration Courts.
Questions are still swirling around the immigration raids that President Donald Trump said he launched over the weekend, but one thing is certain: Many immigrants caught in their net will be sent into a court system already crippled by a vast backlog of ca…
This is a national disaster of gargantuan proportions unfolding in plain sight every day. Yet, somehow it remains largely “below the radar screen.” Nobody except those of us (and a few conscientious reporters, like Julia) who truly understand the relationship of the intentionally broken and thoroughly trashed U.S. Immigration Courts to our overall justice system seems motivated to fix this disgraceful mockery of fundamental fairness and impartial decision-making.
This definitely has the real potential to “crash” the entire U.S. justice system. Under Trump, Barr, and the rest of the sycophants, the backlogs will keep growing exponentially until the Immigration Court system collapses, spewing forth one to two million backlogged cases into the laps of those same smug Article IIIs who are closing their eyes to the miscarriages of justice befalling others on their watch. I guess you can’t hear the tormented screams of the abused way up in the “ivory tower.”
Obviously, as proved over and over again during the past two years, the Trump Administration is without shame, incompetent, and beyond accountability.
However, Members of Congress and the Article III Judges could act tomorrow (yes, there are bills already drafted that nobody is seriously considering, and the multiple Due Process violations of our Constitution infecting every part of this corrupt system are patently obvious, even to my Georgetown Law students, let alone so-called “real” judges) to put an end to this nonsense that is literally killing folks and destroying innocent lives. They should be held fully accountable for their gross dereliction of duty and their mass failure to uphold their oaths of office.
On a cheerier note, here’s my favorite comment about Julia’s article from my good friend, colleage, and fellow blogger, retired Judge Jeffrey S. Chase:
[Retired Judge] Bob Vinikoor and I are quoted.The author, Julia Preston, actually first asked me “Is this Jeffrey Chase, the actor?”She had seen me perform in the play [Waterwell’s NY production of ‘The Courtroom’], and said I had sworn her in as a US citizen in the last scene, which, since she was born in Illinois, was something she had not previously experienced.
Hope your Actor’s Equity Card is in good standing, my friend!
The Immigration Crisis Jeff Sessions Leaves Behind
Assessing the ousted attorney general’s legacy on President Trump’s favorite issue.
But anyone who was following Sessions’ actions on immigration had no doubt that he was working hard. Before he was forced to resign on Wednesday, Sessions was exceptionally aggressive as attorney general, using his authority to steer the immigration courts, restrict access for migrants to the asylum system and deploy the federal courts for immigration enforcement purposes.
Under American law, the attorney general has broad powers over the immigration courts, which reside in the Justice Department not in the independent federal judiciary. Sessions, who made immigration a signature issue during his two decades as a Republican senator from Alabama, exercised those powers to rule from on high over the immigration system.
While Trump complained about Sessions, on immigration he was an unerringly loyal soldier, vigorously executing the president’s restrictionist policies.
Sessions made it his mission to reverse what he regarded as a failure to enforce order in the system by President Barack Obama and Democrats in Congress, despite plunging numbers of illegal border crossings and record deportations under the previous administration.
Join the community that keeps criminal justice on the front page.
A primary goal he declared was to speed the work of the immigration courts in order to reduce huge case backlogs. But according to a report this week by the Transactional Records Access Clearinghouse, or TRAC, the backlogs increased during his tenure by 49 percent, reaching an all-time record of more than 768,000 cases. That tally doesn’t include more than 330,000 suspended cases, which justice officials restored to the active caseload.
“I’ve never seen an attorney general who was so active in the immigration sphere and in a negative direction,” said Daniel Kowalski, the editor of Bender’s Immigration Bulletin, a widely-used reference for lawyers. Kowalski said he’s been practicing immigration law for 33 years.
Here are some of Sessions’ measures that shaped the crisis the next attorney general will inherit:
He imposed case quotas on immigration judges, which went into effect Oct. 1, demanding they complete at least 700 cases a year. With compliance becoming part of a judge’s performance evaluation, the immigration judges’ association has said the quotas impinge on due process.
He made frequent use of the attorney general’s authority to decide cases if he doesn’t like opinions coming from the immigration courts. Sessions used that authority to constrain judges’ decision-making. He made it more difficult for them to grant continuances to give lawyers time to prepare, and he limited judges’ options to close cases where they concluded deportation was not warranted, as a way to lighten overloaded court dockets.
Sessions discouraged immigration judges from allowing prosecutors to exercise their discretion to set aside deportations for immigrants with families or other positive reasons to remain in the United States.
In a policy known as zero tolerance, in April Sessions ordered federal prosecutors along the southwest border to bring charges in federal court against migrants caught crossing the border, for the crime of illegal entry. The policy resulted in parents being separated from their children, in episodes last summer that drew outrage until Trump ordered the separations to stop. But the prosecutions continue for illegal crossers who aren’t parents with children, swelling federal dockets and making it harder for prosecutors to pursue other border crimes, like narcotics and human trafficking, weapons offenses and money-laundering. In September, according to TRAC, 88 percent of the prosecutions in the Southern District of Texas were for an illegal entry misdemeanor; 65 percent of the cases in the Southern District of California were for the same minor crime.
Zero tolerance at the border
Under former Attorney General Jeff Sessions, federal prosecutors in five border districts significantly ramped up the number of misdemeanor cases they filed against migrants crossing illegally this year, particularly in south Texas.
Sessions took the position that a program initiated by Obama, which gave protection from deportation to undocumented immigrants who came here as children, was an overreach of executive authority. He declined to defend the program, called Deferred Action for Childhood Arrivals, or DACA, and praised Trump’s decision last year to cancel it. After federal courts allowed the program to continue, the Justice Department fought to bypass the appeals courts and get a hearing before the Supreme Court for its efforts to terminate the program.
Even though his relations with Trump soured early in his tenure, Sessions maintained a line of communication to the White House through Stephen Miller, a senior adviser. Miller was a senior staff member for Sessions in the Senate, and the two share similar views and goals for clamping down on immigration.
Lawyers and advocates say Sessions’ actions have politicized immigration court proceedings. “He stripped the judges of the authority to ensure due process and demonstrated how susceptible the courts are to the whim of politics,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, based in Chicago.
Advocates for immigration reform said a new attorney general should restore the flexibility of immigration judges to manage their own dockets to find efficient ways to reduce their caseloads. But they said Sessions’ tenure provided new arguments for Congress to move the immigration courts out of the Justice Department to the federal judiciary.
Gregory Chen, director of government relations for the American Immigration Lawyers Association, said, “The aggressive nature of his actions infringing on the independence of the courts has made the need for a new court system even more urgent.”
Go to Julia’s article at the above link to get the accompanying graphics and pictures.
The Immigration Court backlog reported by TRAC now is over 1.1 MILLION cases, with no end in sight. More disturbingly, there is no coherent plan for addressing these cases in anything approaching a rational manner, nor is there a plan for restoring some semblance of due process and functionality to the Immigration Courts. Like most Trump/Sessions initiatives, it’s “we’ll create the problem, make it much worse, then hinder the efforts of others to fix it.”
Three “no-brainers ” that Sessions wouldn’t do:
Working with the private bar, NGOs, states, and localities to make legal representation available to everyone in Immigration Court who wants it;
Letting U.S. Immigration Judges control their own dockets and make independent decisions, free from political interference; and
Removing hundreds of thousands of older cases of individuals eligible to apply for “Cancellation of Removal For Non-Lawful Permanent Residents” from the Immigration Courts’ active dockets and having them adjudicated by USCIS in the first instance.
Of course an independent Article I Immigration Court is an absolute necessity. But, that will take legislation. In the meantime, the foregoing three administrative steps would pave the way for an orderly transition to Article I status while promoting Due Process, fairness, and efficiency in the system.
But, I wouldn’t count on anyone in the “Current Kakistocracy” doing the right thing or actually implementing “good government.” If the Article IIIs don’t put an end to this travesty, it will continue to get worse and pull them down into the muck until we get “regime change.”
Ironically, Trump isn’t the only one who “hasn’t had an Attorney General over the past two years.” The majority of Americans haven’t had one either; while he might be on the verge of getting “his” Attorney General, the rest of us can only look forward to more pain and misery!
Yes, youʼve heard about the family separations. Youʼve heard about the travel ban. But there are dozens of ways the Trump administration is cracking down on immigration across many agencies, sometimes in ways so small and technical it doesnʼt make headlines. This week, the quiet bureaucratic war that’s even targeting legal immigrants.
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Long, but highly documented, compelling, and well worth the listen if you really want to know about the ugly, depraved policies of Trump, Sessions, Miller, Nielsen, Cissna, Gene Hamilton, and the rest of the White Nationalist Racist Brigade.
“Washington (CNN)As the ink dried Friday on a major budget compromise deal in Congress, immigration advocates were taking stock of getting left behind — again — without a resolution for hundreds of thousands of young undocumented immigrants on the verge of losing protections.
It’s an open question if there are cards left to play in the push to enshrine the Deferred Action for Childhood Arrivals policy into law. While no advocates say they are giving up, many also openly admit that Democrats and allies gave up their best negotiating position on the issue without another clear avenue coming up.
In the meantime, a pending court decision on DACA, which President Donald Trump is terminating, means the immigrants protected by it and who mostly have never known another country than the US, won’t begin losing their protections as planned on March 5 — but their fate could be reversed at any moment by another court decision.
Rep. Luis Gutierrez, an Illinois Democrat who has long served as one of the most outspoken advocates in Congress for immigration reform, was pessimistic with reporters early Friday morning as Congress passed the deal with virtually every Democratic priority except DACA in it.
“No, I don’t, I don’t,” he said when asked if there was any other way Democrats could exert leverage on the issue. Gutierrez said the plan from the beginning was to either attach a DACA compromise to the must-pass budget deal or raising the debt ceiling, both of which were passed in the early morning hours Friday without DACA. Arizona Democrat Raul Grijalva called the episode “disheartening.”
close dialog
“We have decoupled the issues. Your leverage is you want them one and the same,” Gutierrez said. “Do we need a new way forward? Yeah, we’re going to figure out a new way forward.”
There is one glimmer of hope for advocates. Senate Majority Leader Mitch McConnell made good on his promise to tee up an immigration debate on the Senate floor next week. Moments after the Senate passed the deal, McConnell filed to have a vote to open debate on an unrelated bill Monday evening — which will kick off a process where an as-yet-unknown number of amendments will be able to compete for a procedural threshold of 60 votes to then pass the Senate.
It was that promise that put in motion the deal that eventually severed DACA from other negotiations but also offers a rare opportunity for lawmakers to compete on a neutral playing field for bipartisan support.
“We’re pivoting, what can you do?” said longtime advocate Frank Sharry, executive director of the pro-immigration group America’s Voice. “We’ve had our doubts about the viability of a standalone legislative process but that’s what we’re left with, so we’re hoping to make the most of it. … That will put pressure on the President and the House to do the same.”
Already, groups of lawmakers are preparing for the floor debate, even as it remains unclear how many amendments will be offered, how debate will be structured and how long it might last.
A group of roughly 20 bipartisan senators is drafting legislation over the weekend to offer perhaps multiple amendments and potentially keep the debate focused on a narrow DACA-border security bill. Advocates on the left may offer a clean DACA fix like the Dream Act, and some on the right are drafting a version of the White House proposal that would include $25 billion for a border wall and heavy cuts to legal immigration with a pathway to citizenship — though neither is expected to have 60 votes.
“First of all, we have the Senate procedure, which is my hope. We’re working with the (bipartisan group) to see if we can come to a two-pillar solution,” said Sen. Bob Menendez, a New Jersey Democrat who has long worked on the issue, when asked Thursday what comes next for DACA. “Hopefully we could gather 60 votes for that. And then that would be it — we’d resist everything else, any other amendments, and then go back to the House and create all the pressure in the House to make it happen.”
Step 2: Pressure Ryan
If the Senate can pass a bill, lawmakers hope Trump will fully embrace it, freeing House Speaker Paul Ryan to call it up.
Already as the budget deal was on track for passage, House advocates began a pressure campaign to urge Ryan to make a promise like McConnell — though Ryan continually demurred and insisted instead he’s committed to the issue of immigration and passing a bill the President can support.
“I think we have to be realistic,” said Arizona’s Democratic Rep. Ruben Gallego. “We’re going to have to deal with reality and find whatever means possible to put pressure on Speaker Ryan and the Republican Party to bring, again, a fair vote on the Dream Act to the floor.”
“I think for me the strategy has to be pressure Ryan and bring it to the floor,” Grijalva said, adding the process should allow any proposal to vie for a majority — even if it doesn’t have a majority of Republican votes. “The Senate, when they gave up on not voting for it, at the very minimum extracted a time certain and a debate on something. We don’t even have that.”
Democrats also may have some Republican supporters in the House to pressure Ryan. A bipartisan group of lawmakers that includes two dozen Republicans sent a letter to Ryan asking to open a floor debate like McConnell.
Republican Charlie Dent of Pennsylvania said he’s been urging fellow moderates to use their numbers the way that conservatives on the right flank do.
“The Freedom Caucus has been effective because they’ll use their power of 24 (votes to deny a majority), and they take the hostage, they’ll do what they have to do,” Dent said. “I tell our members, we put our votes together, we can really direct an outcome. … I suspect if the Senate sends us a bipartisan DACA bill, that’s when we’re going to have to flex our muscles.”
But others have doubts. Republican Sen. Marco Rubio of Florida, a member of the bipartisan group, says he learned his lesson in 2013, when he co-authored legislation that passed the Senate with wide margins but died in the House.
“There are some who believe that if we get a bunch of votes it’ll force the House to do it. I don’t agree,” Rubio said. “We could vote on it 90-10. … This notion that the House is going to listen to what a senator tells them to do is not real.”
Step 3: Other leverage
If the legislative process can’t produce success, advocates say, they will look for any other leverage points they can.
“If that doesn’t work out, then there’s still an omnibus at the end of the day,” said Menendez, referring to the spending bills due in March to fund the government under the topline two-year budget deal passed Friday.
But Gutierrez doubted that approach — scoffing at the idea that Democrats would be taken seriously if they threatened to withhold their votes yet again without success.
“Really?” Gutierrez said about the omnibus as leverage. “Is it plausible? Is it realistic? Can you continue to threaten with something?”
Other options could include a temporary, one-year or two-year extension of DACA without a permanent solution, though lawmakers have decried that option.
Still, many aren’t ready to give up hope.
“This President clearly wants to get it done, I think the majority of Republicans want to get it done and the majority of Democrats want to get it done. Can we reach that balance? We can get there, I feel very confident we can get there,” said Florida’s Republican Rep. Mario Diaz-Balart.”
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Although it should be a “no brainer,” I’m not as confident as Rep. Diaz-Balart that this group can “get to yes.” A fair resolution of the “Dreamers” situation just isn’t very high on the GOP agenda, particularly in the House. And, both the Dreamers and the Dems are coming to grips with the obvious reality: if you want to set or control the agenda, you have to win elections!
We need Julia Preston to lock these folks in a room for awhile!
Members of the Model Congress: To simulate a real immigration negotiation, we tried to select participants from across the policy spectrum—advocates and operatives, defenders of more immigration and proponents of less. In the end, we ended up with a well-rounded expert group of four:
Theresa Cardinal Brown is director of immigration and cross-border policy at the Bipartisan Policy Center, a research group in Washington. She was an immigration policy adviser at the Department of Homeland Security under President George W. Bush from 2005 to 2008 and the agency’s attaché in Canada under Obama from 2008 to 2011. Before that, she served as director of immigration and border policy at the U.S. Chamber of Commerce.
Steven Camarota is director of research for the Center for Immigration Studies, a Washington think tank that seeks less immigration overall and has opposed past measures to legalize undocumented immigrants.
Leon Fresco, an immigration lawyer at Holland and Knight, was previously a staff member for Democratic Senator Chuck Schumer on the Senate Judiciary Committee, where he was one of the main drafters of the comprehensive immigration bill that passed the Senate in 2013.
Tom Jawetz is vice president for immigration at the Center for American Progress, a progressive policy group. As chief counsel to the immigration subcommittee of the House Judiciary Committee and adviser to Democrats, he helped negotiate an immigration reform bill in the House in 2014. It never went to a vote.
I acted as the moderator.
. . . .
The makings of a deal: So that’s where our negotiators ended up after two hours: A pathway to citizenship for Dreamers and a 50,000 reduction in visas across several categories that would last for some period of time.
. . . .
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Find out how they got there by going on over to Politico at the above link and reading Julia’s entire report. Most impressive! Julia’s certainly got my vote for President!
And so in this gateway city on the Rio Grande [Laredo], inside a building rimmed with barbed wire, past security guards and locked doors, immigration judges on short details started hearing cases in a cramped courtroom that was hastily arranged in March.
But seven months later, the case of Oscar Arnulfo Ramírez, an immigrant from El Salvador, was not going quickly. He was sitting in detention, waiting for a hearing on his asylum claim. And waiting some more.
The court files, his lawyer discovered, showed that Ramírez’s case had been completed and closed two months earlier. Since the case was closed, the court clerk couldn’t schedule a new hearing to get it moving again. In fact, the clerk didn’t even have a record that he was still detained.
“It’s as if he’s non-existent,” his lawyer,, said. “He’s still in a detention center. He’s still costing the government and the American people tax dollars. But there’s no proceeding going on. He’s just sitting there doing completely nothing.”
Ramírez’s case was one of many signs of disarray in the improvised court in Laredo, which emerged during a weeklong visit in late October by a reporter from The Marshall Project and a radio producer from This American Life. Instead of the efficiency the Trump administration sought, the proceedings were often chaotic. Hearing schedules were erratic, case files went missing. Judges were exasperated by confusion and delays. Like Ramírez, detainees were lost in the system for months on end.
For a view of the border crossing in Laredo and the grinding process migrants begin there, check out Kirsten Luce’s photosfrom the gateway on the Rio Grande.
With the intense pressure on the court to finish cases, immigrants who had run from frightening threats in their home countries were deported without having a chance to tell the stories that might have persuaded a judge to let them stay.
. . . .
For Paola Tostado, the lawyer, Ramírez was not the first client to fall through the cracks in Laredo. Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.
Another Salvadoran asylum-seeker she represented, whose case was similarly mislaid, had gone for four months with no hearing and no prospect of having one. Eventually he despaired. When ICE officers presented him with a document agreeing to deportation, without consulting Tostado he had signed it.
“I’ve had situations where we come to an individual client who has been detained over six months and the file is missing,” she said. “It’s not in San Antonio. It’s not in Laredo. So where is it? Is it on the highway?”
In her attempts to free Ramírez, Tostado consulted with the court clerk in San Antonio, with the ICE prosecutors and officers detaining him, but no one could say how to get the case started again.
Then, one day after reporters sat in the courtroom and spoke with Tostado about the case, ICE released him to pursue his case in another court, without explanation.
But by December Tostado had two other asylum-seekers who had been stalled in the system for more than seven months. She finally got the court to schedule hearings for them in the last days of the year.
“I think the bottom line is, there’s no organization in this Laredo court,” Tostado said. “It’s complete chaos and at the end of the day it’s not fair. Because you have clients who say, I just want to go to court. If it’s a no, it’s a no. If it’s a yes, it’s a yes.”
Unlike criminal court, in immigration court people have no right to a lawyer paid by the government. But there was no reliable channel in Laredo for immigrants confined behind walls to connect with low-cost lawyers. Most lawyers worked near the regular courts in the region, at least two hours’ drive away.
Sandra Berrios, another Salvadoran seeking asylum, learned the difference a lawyer could make. She found one only by the sheerest luck. After five months in detention, she was days away from deportation when she was cleaning a hallway in the center, doing a job she had taken to keep busy. A lawyer walked by. Berrios blurted a plea for help.
The lawyer was from a corporate law firm, Jones Day, which happened to be offering free services. Two of its lawyers, Christopher Maynard and Adria Villar, took on her case. They learned that Berrios had been a victim of vicious domestic abuse. A Salvadoran boyfriend who had brought her to the United States in 2009 had turned on her a few years later when he wanted to date other women.
Once he had punched her in the face in a Walmart parking lot, prompting bystanders to call the police. He had choked her, burned her legs with cigarettes, broken her fingers and cut her hands with knives. Berrios had scars to show the judge. She had a phone video she had made when the boyfriend was attacking her and records of calls to the Laredo police.
The lawyers also learned that the boyfriend had returned to El Salvador to avoid arrest, threatening to kill Berrios if he ever saw her there.
She had started a new relationship in Texas with an American citizen who wanted to marry her. But she’d been arrested by the Border Patrol at a highway checkpoint when the two of them were driving back to Laredo from an outing at a Gulf Coast beach.
After Berrios been detained for nine months, at a hearing in July with Maynard arguing her case, a judge canceled her deportation and let her stay. In a later interview, Berrios gave equal parts credit to God and the lawyers. “I would be in El Salvador by this time, already dead,” she said. “The judges before that just wanted to deport me.”
. . . .
We have heard frustration across the board,” said Ashley Tabaddor, a judge from Los Angeles who is the association [NAIJ] president. She and other union officials clarified that their statements did not represent the views of the Justice Department. “We’ve definitely heard from our members,” she said, “where they’ve had to reset hundreds of cases from their home docket to go to detention facilities where the docket was haphazardly scheduled, where the case might not have been ready, where the file has not reached the facility yet.”
Another association official, Lawrence Burman, a judge who normally sits in Arlington, Va., volunteered for a stint in a detention center in the rural Louisiana town of Jena, 220 miles northwest of New Orleans. Four judges were sent, Burman said, but there was only enough work for two.
“So I had a lot of free time, which was pretty useless in Jena, Louisiana,” Burman said. “All of us in that situation felt very bad that we have cases back home that need to be done. But in Jena I didn’t have any of my files.” Once he had studied the cases before him in Jena, Burman said, he was left to “read the newspaper or my email.”
The impact on Burman’s case docket back in Arlington was severe. Dozens of cases he was due to hear during the weeks he was away had to be rescheduled, including some that had been winding through the court and were ready for a final decision. But with the enormous backlog in Arlington, Burman had no openings on his calendar before November 2020.
Immigrants who had already waited years to know whether they could stay in the country now would wait three years more. Such disruptions were reported in other courts, including some of the nation’s largest in Chicago, Miami and Los Angeles.
“Many judges came back feeling that their time was not wisely used,” Judge Tabaddor, the association president, said, “and it was to the detriment of their own docket.”
Justice Department officials say they are pleased with the results of the surge. A department spokesman, Devin O’Malley, did not comment for this story but pointed to congressional testimony by James McHenry, the director of the Executive Office for Immigration Review. “Viewed holistically, the immigration judge mobilization has been a success,” he said, arguing it had a “positive net effect on nationwide caseloads.”
Justice Department officials calculated that judges on border details completed 2700 more cases than they would have if they had remained in home courts. Officials acknowledge that the nationwide caseload continued to rise during last year, reaching 657,000 cases by December. But they noted that the rate of growth had slowed, to .39 percent monthly increase at the end of the year from 3.39 percent monthly when Trump took office.
Judge Tabaddor, the association president, said the comparison was misleading: cases of immigrants in detention, like the ones the surge judges heard, always take priority and go faster than cases of people out on release, she said. Meanwhile, according to records obtained by the National Immigrant Justice Center, as many as 22,000 hearings in judges’ home courts had to be rescheduled in the first three months of the surge alone, compounding backlogs.
. . . .”
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Read Julia’s complete article at the above link. Always enjoy getting quotes from my former Arlington colleague Judge Lawrence O. (“The Burmanator”) Burman. He tends to “tell it like it is” in the fine and time-honored Arlington tradition of my now retired Arlington colleague Judge Wayne R. Iskra. And, Judge Iskra didn’t even have the “cover” of being an officer of the NAIJ. Certainly beats the “pabulum” served up by the PIO at the “Sessionized” EOIR!
Also, kudos to one of my “former firms” Jones Day, its National Managing Partner Steve Brogan, and the Global Pro Bono Counsel Laura Tuell for opening the Laredo Office exclusively for pro bono immigration representation, As firms like jones Day take the “immigration litigation field,” and give asylum applicants the “A+ representation” they need and deserve, I predict that it’s going to become harder for the Article III U.S. Courts to ignore the legal shortcomings of the Immigration Courts under Sessions.
A brief aside. My friend Laura Tuell was a “Guest Professor” during a session of my Immigration Law & Policy class at Georgetown Law last June. On the final exam, one of my students wrote that Laura had inspired him or her to want a career embodying values like hers! Wow! Talk about making a difference on many levels!And talk about the difference in representing real valuesas opposed to the legal obfuscation and use of the legal system to inflict wanton cruelty represented by Sessions and his restrictionist ilk.
We also should recognize the amazing dedication and efforts of pro bono and “low bono” lawyers like Paola Tostado, mentioned in Julia’s report. “Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.” What do you think that does to her law practice? As I’ve said before, folks like Paola Tostado, Christopher Maynard, Adria Villar, and Laura Tuell are the “real heroes” of Due Process in the Immigraton Court system.
Compare the real stories of desperate, bona fide asylum seekers and their hard-working dedicated lawyers being “stiffed” and mistreated in the Immigration Court with Sessions’s recent false narrative to EOIR about an asylum system rife with fraud promoted by “dirty attorneys.” Sessions’s obvious biases against migrants, both documented and undocumented, and particularly against Latino asylum seekers on the Southern Border, make him glaringly unqualified to be either our Attorney General or in charge of our U.S. Immigration Court system.
No amount of “creative book-cooking” by EOIR and the DOJ can disguise the human and due process disaster unfolding here. This is exactly what I mean when I refer to “”Aimless Docket Reshuffling” (“ADR”), and it’s continuing to increase the Immigration Court backlogs (now at a stunning 660,000) notwithstanding that there are now more Immigration Judges on duty than there were at the end of the last Administration.
I’ll admit upfront to not being very good at statistics and to being skeptical about what they show us. But, let’s leave the “Wonderful World of EOIR” for a minute and go on over to TRAC for a “reality check” on how “Trumpism” is really working in the Immigration Courts. http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php
On September 30, 2016, near the end of the Obama Administration, the Immigration Court backlog stood at a whopping 516,000! Not good!
But, now let go to Nov. 30, 2017, a period of 14 months later, 10 of these full months under the policies of the Trump Administration. The backlog has mushroomed to a stunning 659,000 cases — a gain of 153,000 in less than two years!And, let’s not forget, that’s with more Immigration Judges on board!
By contrast, during the last two full years of the Obama Administration — September 30, 2014 to September 30, 2016 — the backlog rose from 408,000 to 516,000. Nothing to write home about — 108,000 — but not nearly as bad as the “Trump era” has been to date!
Those who know me, know that I’m no “fan” of the Obama Administration’s stewardship over the U.S. Immigration Courts. Wrongful and highly politicized “prioritization” of recently arrived children, women, and families from the Northern Triangle resulted in “primo ADR” that sent the system into a tailspin that has only gotten worse. And, the glacial two-year cycle for the hiring of new Immigration Judges was totally inexcusable.
But, the incompetence and disdain for true Due Process by the Trump Administration under Sessions is at a whole new level. It’s clearly “Amateur Night at the Bijou” in what is perhaps the nation’s largest Federal Court system. And, disturbingly, nobody except a few of us “Immigration Court Groupies” seems to care.
So, it looks like we’re going to have to stand by and watch while Sessions “implodes” or “explodes” the system. Then, folks might take notice. Because the collapse of the U.S. Immigration Courts is going to take a big chunk of the Article III Federal Judiciary with it.
Why? Because approximately 80% of the administrative review petitions in the U.S. Courts of Appeals are generated by the BIA. That’s over 10% of the total caseload. And, in Circuits like the 9th Circuit, it’s a much higher percentage.
The U.S. Immigration Judges will continue to be treated like “assembly line workers” and due process will be further short-shrifted in the “pedal faster” atmosphere intentionally created by Sessions and McHenry. The BIA, in turn, will be pressured to further “rubber stamp” the results as long as they are removal orders. The U.S. Courts of Appeals, and in some cases the U.S. District Courts, are going to be left to clean up the mess created by Sessions & co.
We need an independent Article I U.S. Immigration Court with competent, unbiased judicial administration focused on insuring individuals’ Due Process now! We’re ignoring the obvious at our country’s peril!
What if the U.S. Supreme Court proudly announced that as part of President Trump’s initiative to deregulate it had struck down 30% more regulations since Trump took office? What if the U.S. Court of Appeals for the Second Circuit announced that as part of the Administrations’s War on Drugs they had reassigned more U.S. District Judges to pretrial detention facilities and had produced 30% more convictions and 40% longer sentences for drug offenders than under the previous Administration. Might raise some eyebrows! Might show a lack of independence and due process in the Courts and lead one to believe that at least some U.S. Judges were betraying their duties to act impartially and their oaths to uphold the U.S. Constitution.
But yesterday, in truly remarkable press release, America’s largest court system, the United States Immigration Court proudly announced that they had joined the President’s xenophobic crusade against foreign nationals by assigning more Immigration Judges to railroad out of the country individuals detained, mostly without counsel, in remote locations along the Southern Border. EOIR touted that over 90% of the individuals in detention facilities lost their cases and were ordered removed from the U.S. (although as anyone familiar with the system knows, many of these individuals are refugees who have succeeded at rates of 43% to 56% on their claims over the past five fiscal years). To add insult to injury, EOIR had the audacity to caption its press release “Return to Rule of Law in Trump Administration!”
Don’t believe me? Check out the full press release here:
“Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Tuesday, August 8, 2017
Return to Rule of Law in Trump Administration Marked by Increase in Key Immigration Statistics
The Executive Office of Immigration Review today released data on orders of removal, voluntary departures, and final decisions for the first six months of the Trump Administration.
The data released for Feb. 1, 2017 – July 31, 2017 is as follows:
Total Orders of Removal [1]: 49,983
Up 27.8 percent over the same time period in 2016 (39,113)
Total Orders of Removal and Voluntary Departures [2]: 57,069
Up 30.9 percent over the same time period in 2016 (43,595)
Total Final Decisions [3]: 73,127
Up 14.5 percent over the same time period in 2016 (63,850)
Pursuant to President Trump’s Jan. 25 Executive Order, “Border Security and Immigration Enforcement Improvements,” the Department of Justice mobilized over one hundred existing Immigration Judges to Department of Homeland Security (DHS) detention facilities across the country. Over 90 percent of these cases have resulted in orders requiring aliens to depart or be removed from the United States. The Justice Department has also hired 54 additional Immigration Judges since President Trump took office, and continues to hire new Immigration Judges each month.
In addition to carrying out the President’s Executive Order, the Justice Department is also reviewing internal practices, procedures, and technology in order to identify ways in which it can further enhance Immigration Judges’ productivity without compromising due process.
[1] An “order of removal” by an Immigration Judge results in the removal of an illegal alien from the United States by the Department of Homeland Security.
[2] Under an order of “voluntary departure”, an illegal alien agrees to voluntarily depart the United States by a certain date. If the illegal alien does not depart, the order automatically converts to an order of removal.
[3] A “final decision” is one that ends the proceeding at the Immigration Judge level such that the case is no longer pending.
Yet, the absurdity of something that once purported to be a “court system” dedicated to guaranteeing “fairness and due process for all,” becoming part of the Administration’s border enforcement machine, stomping on the due process rights of those it was supposed to protect, went largely unnoticed in the media.
But, wait a minute, it gets worse! Recently, the widely respected journalist Julia Preston, now writing for the Marshall Project, told us how U.S. Immigration Judges in Charlotte, NC mock due process and fairness for asylum seekers.
Now, the Southern Poverty Law Center (“SPLC”) details how, notwithstanding previous complaints, eyewitnesses have documented the attack on fundamental fairness and due process by U.S. Immigration Judges at the DHS Stewart Detention Facility (why would “real judges” be operating out of a DHS Detention Facility?). Here’s a summary of the report from SPLC:
SPLC DEMANDS DEPARTMENT OF JUSTICE TAKE ACTION AGAINST IMMIGRATION JUDGES VIOLATING DETAINEES’ CONSTITUTIONAL RIGHTS
August 08, 2017
Some judges at the Stewart Immigration Court in Georgia routinely break the rules of professional conduct and continue to violate the constitutional rights of detainees – failures that require action, including the possible removal of one judge from the bench, according to a complaint the SPLC lodged with the U.S. Justice Department’s Executive Office for Immigration Review (EOIR) today.
The complaint, which comes almost a year after the SPLC and Human Rights First notified the agency about the judges, describes how they fail to explain basic legal information to immigrants, or even demonstrate the necessary dignity and courtesy the rules of conduct require.
The complaint notes that after one man told a judge that he had grown up in the United States, the judge said that if he were truly an American, he “should be speaking English, not Spanish.” The findings come after the SPLC spent a month observing the hearings of 436 people.
The federal agency has claimed that it initiated discussions with the judges after the initial complaint was filed in late August 2016, but the SPLC’s courtroom observers and its experience representing detainees continue to uncover issues at the court, which is inside the privately operated Stewart Detention Center in rural Lumpkin, Georgia.
“The people appearing before this court are already being held at the Stewart Detention Center, often far from their family and friends,” said Dan Werner, director of the SPLC’s Southeast Immigrant Freedom Initiative, which represents immigrants detained at Stewart. “They are scared and unsure of their rights when they go before judges whose behavior gives no assurance that they’ll receive a fair hearing. In fact, their behavior makes a mockery of the legal system.”
The SPLC’s courtroom observers found a number of issues, including judges failing to provide interpretation services for the entire court proceeding. They also failed to provide rationales for their decisions, provide written notification about future proceedings to the detainees, or grant routine procedural motions.
The complaint describes how Judge Saundra Arrington stands out for her lack of professionalism and hostility toward immigrant detainees – behavior warranting reprimand, suspension or even removal from the bench, according to the complaint.
Arrington, who goes by the last name Dempsey but is referred to as Arrington in EOIR records, began hearings with one immigrant by prejudicially noting he had a “huge criminal history,” comprised of nine convictions for driving without a license over 15 years. It was Arrington who told a detainee that he should speak English if he grew up in the United States and believed he was American.
She also refused to allow two attorneys appear on behalf of an immigrant, stating that there may be “one lawyer per case” despite attorneys explaining they had filed the necessary paperwork. Two attorneys, however, were allowed to appear on behalf of Immigration and Customs Enforcement Office of Chief Counsel.
Judge Dan Trimble, according to the complaint, denied bond for a detainee without looking at the bond motion. He also rarely refers detainees to the detention center’s “Legal Orientation Program,” which provides information about court proceedings and offers assistance.
“The Department of Justice must take action to stop this behavior that is undermining the legal system,” said Laura Rivera, SPLC staff attorney. “Every day that this behavior is allowed to continue is a day dozens of people have their rights denied.”
The SPLC launched the Southeast Immigrant Freedom Initiative (SIFI) at the detention center earlier this year to provide free legal representation to immigrants who have been detained and are facing deportation proceedings.
A recent national study found that between 2007 and 2012, only 6 percent of detainees at the Stewart Detention Center were represented by counsel – far below the national representation rate of 37 percent, according to the SPLC complaint. Immigrants with counsel are approximately 20 times more likely to succeed in their cases.
Beginning this month, SIFI will expand to other detention centers throughout the Southeast. When fully implemented, it will be the largest detention center-based deportation defense project in the country.
And, here’s a link to the complete shocking report.
Folks, all of the abuses detailed in this post are being carried out by U.S. government officials at EOIR charged with protecting the due process rights of vulnerable migrants and asylum seekers. In other words, under pressure from the Trump Administration and the Sessions DOJ, some EOIR employees have disregarded their duty to the U.S. Constitution to provide due process for vulnerable migrants in Removal Proceedings. How long will the pathetic mockery of justice masquerading as “judicial proceedings” that is occurring in some (certainly not all) parts of the U.S. Immigration Court system be allowed to continue?
