STEFF W. KIGHT @ AXIOS: How Mindlessly Expanded Detention & “Aimless Docket Reshuffling” Contributes To Skyrocketing Backlogs In Immigration Court!

https://www.axios.com/immigration-legal-courts-judges-backlog-border-crisis-92525141-66f5-41c1-a9e1-a60edba4ee74.html

Steph W. Kight — Steff W. Kight
Reporter
AXIOS

Steff W. Kight reports for AXIOS:

It’s taking longer and longer to become a legal immigrant

The number of immigrants waiting on a judge to decide whether they can stay in the U.S. keeps climbing, according to Justice Department data.

Why it matters: Immigration-court backlogs “are basically crippling the whole system,” Georgetown Law professor and former immigration judge Paul Schmidt told Axios.

By the numbers: On average, immigrants are waiting 727 days for decisions on their court cases — roughly twice as long as immigrants had to wait two decades ago, according to Syracuse University’s Transactional Records Access Clearinghouse (TRAC) which gathered millions of court records.

The big picture: The long waits have resulted in many Central American families being released after crossing the border illegally, because it is nearly impossible for their cases to be decided on within the 20 day detention limit for children.

The backlog also incentivizes migration. Migrants can expect at least a few months in the U.S. before they have to show up to court, immigration experts said.

The Trump administration cited the growing backlog as a reason for new rules all but cutting off Central Americans from gaining asylum.

Migrants who are disqualified for asylum under the new rule will still have the chance to fight deportation in front of an immigration judge.

And many of the administration’s actions — such as increasing ICE arrests and limiting judges’ ability to dismiss low-priority cases — have made the problem worse, according to Schmidt.

How it works: There are 431 DOJ-appointed judges handling immigration cases, up from 289 in FY 2016, according to Justice Department data. The Trump administration has ramped up hiring for immigration judges and put pressure on them to work faster.

While they wait for their court date, asylum seekers, green-card applicants, immigrants arrested by ICE and others are either held in an ICE detention center, asked to pay bail or released, sometimes with an ankle bracelet or other monitoring device.

IMMIGRATION

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Go to Steff’s original article at the above link for the accompanying graph.

Here’s how it works (or in this case, doesn’t). As ICE steps up the amount of detention and Immigration Judges are pushed by the DHS and the Department of Justice to set higher bonds (or stripped altogether of their bond setting authority, as AG Bill Barr has tried to do in a large class of asylum cases, only to be thwarted for the time being by the “real” Federal Courts) the number of detained individuals awaiting immigration hearings grows.

That, in turn, causes a largely self-inflicted “emergency” on the Immigration Courts’ detained docket. To deal with this very predictable, self-created “emergency,” Immigration Judges are detailed from already totally saturated “non-detained dockets” to the detained docket.

That results in regularly scheduled non-detained cases, many of which have been pending for years and have already been reset several times to accommodate the Government’s ever-shifting “priorities,” being reset yet again, often without advance notice to the respondents and their attorneys. Because most dockets are already full for years, these “reset” cases normally go to the “end of the line,” as far out as 2023 in some courts.

Also, the non-detained cases are usually represented by counsel and “ready to try.” By contrast, many cases on the detained docket do not have lawyers or are not yet prepared because of the Government-caused difficulties of preparing and documenting a complex asylum case from a detention center in the middle of nowhere (don’t worry, these days the “detailed judges” mostly appear by TV, from far away locations, so they don’t have to experience the same discomforts and dislocation of the detention centers as inflicted by the Government on respondents and their lawyers — if any).

I call the above process “Aimless Docket Reshuffling.” Cases are “churned,” causing huge amounts of additional work for respondents’ attorneys and court staff, and generating workload statistics, without ever being completed. Then, confronted with its own incompetence and intentional mismanagement, the Government tries to shift the blame to the victims, the respondents and their lawyers, by making it harder to get legitimate continuances and stripping respondents of what few rights they have.

So the next time you hear Trump, Barr, McAleenan, or some other unqualified GOP politico complaining about Immigration Court backlogs remember the truth — while Immigration Court backlogs are the product of years of negligence and mismanagement by the Department of Justice, today’s “totally out of control backlogs” are largely caused, and certainly aggravated, by the Trump Administration’s own “malicious incompetence.”

PWS

07-16-19

FRANZ KAFKA’S AMERICA: One Of The Worst Judges In Our Most Dysfunctional Court System Spent 22 Years “On The Bench” & NEVER Granted An Asylum Case! — How Could This Happen? — Gross Distortion Of Justice Has Been Unfolding Right Before The Eyes Of Congress & The Article III Courts For Years — Time For Change!

https://www.topic.com/your-judge-is-your-destiny

Gabriel Thompson & Leonardo Santamaria in Topic Magazine:

“Your Judge Is Your Destiny”

Agnelis L. Reese has presided over more than 200 hearings during the past five years as an immigration judge. Unique among her peers, she has rejected every single case.

Words by Gabriel Thompson

Illustrated by Leonardo Santamaria

Leonardo Santamaria

Artist

https://www.topic.com/your-judge-is-your-destiny?utm_source=topicsite&utm_medium=copiedlink&utm_campaign=topicsite&utm_term=sharebutton_main&utm_content=link

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Read the complete article at the link.

The Supreme Court set forth a generous view of asylum law — even a 10% chance of persecution is enough to qualify — in the 1987 case Cardoza-Fonseca v. INS, discussed in this article. Following the Supreme Court’s directive, the BIA in Matter of Mogharrabi adopted a generous “reasonable person” standard for asylum eligibility, assuring everyone that asylum could be granted “even where persecution is significantly less” than probable.

However, judges like Judge Agnelis Reese have a different idea: treat asylum as a “loophole” and abuse your power over individuals’ lives by looking for bogus ways to deny protection rather than grant it. As pointed out by this article, one of the “best” of these “legal gimmicks” is simply arbitrarily to decide not to believe anyone’s claim or to “nit-pick” memories in a way that would establish Judge Reese and others like her as “inherently not credible” if applied to them. Much like the Trump Administration as a whole.

However, this is about more than just one ill-qualified asylum judge. For 22 years, Judge Reese was allowed to abuse asylum seekers with her one-sided decision making. That spanned two entire Administrations, one of each party, and two partial ones. Yet the BIA, EOIR, the DOJ, and life-tenured Article III Court of Appeals Judges failed to intervene to force Judge Reese, and other like her, to either apply asylum law in the fair, reasonable, and generous manner it was intended or to find other jobs.

There are “other Judge Reeses” out there today screwing the most vulnerable among us with dishonest interpretations of asylum law and facts, particularly in the area of credibility and “nexus” to a “protected ground.” Now, however, instead of being “outliers,” they are the kinds of “shining example” judges who implement the Administration’s White Nationalist false narrative that all asylum seekers from all countries are “gaming the system” and ought to be rejected en masse, without fair and impartial adjudications, in some cases amounting to literately “death sentences” without anything approaching due process.

All this is going on right under the noses of life-tenured Article III Judges who are supposed to be enforcing Due Process and fundamental fairness by insuring that the Immigration Court system provides fair and impartial adjudications (it doesn’t), that the generous criteria set forth in INS v. Cardoza-Fonseca and Matter of Mogharrabi are not just given “lip service” but are actually applied in every case (they aren’t), that credibility determinations are based on the record as a whole and all relevant factors (they aren’t), and that “mixed motive” for acts of persecution is properly considered and applied (it isn’t).

Of course, Congress and to some extent the voters are to blame for the current disgraceful parody of justice in our Immigration Courts. But, careers like that of Judge Reese are proof that the Article III Courts are also failing to live up to their statutory, constitutional, and human obligations and thus have become part of the problem, rather than part of the solution.

I can only hope that some future legal historian will analyze in detail, naming names, the failure of the Article III Courts, up to and including the Supremes, to perform their functions with integrity and thereby to have prevented the legal, constitutional, and human tragedy and mockery of justice taking place every day in our broken Immigration Courts.

Unqualified, yet empowered, judges like Reese are a symptom, rather than the cause of, that broken system.

Just yesterday, four distinguished legal organizations sent a joint letter to Congress calling for the establishment of an independent U.S. Immigration Court in view of the demonstrated catastrophic failure of the current system to provide Due Process to asylum seekers and other migrants:

ABA signs joint letter to Congress on establishing an independent immigration court system

WASHINGTON, D.C., JULY 9, 2019 —The American Bar Association has joined with three other legal organizations to call on Congress to establish a separate immigration court system that is independent of the U.S. Department of Justice.

ABA President Bob Carlson, along with the presidents of the American Immigration Lawyers Association, the Federal Bar Association and the National Association of Immigration Judges, will send a joint letter to Congress on July 11 stating that immigration courts “cannot meet the standards which justice demands” because they are not truly independent. This issue is particularly crucial as immigration courts struggle with crisis-level backlogs of almost 900,000 cases.

Under the current arrangement, immigration courts are part of the U.S. Department of Justice, and the judges in those courts are answerable to the U.S. Attorney General, who is also the nation’s chief prosecutor.

In their joint letter to Congress, the four organizations note that this inherent conflict of interest means that immigration judges are “particularly vulnerable to political pressure and interference.” In addition to the structural issues, the letter said that problems have “resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner.”

The lack of independence in the immigration court system was also addressed in the ABA’s recent updated report, “Reforming the Immigration System.” In the report, the organization urged removing the immigration courts from DOJ to ensure they are given the independence they need to be fair, impartial arbiters.

A telephone media briefing on the letter will be held Thursday, July 11, at 1pm ET/10am PT immediately following submission of the letter to Congress.

Briefing speakers

·         Wendy Wayne, Chair, American Bar Association Commission on Immigration

·         Jeremy McKinney, Second Vice President, American Immigration Lawyers Association

·         Hon. Denise Noonan Slavin, former Immigration Judge and President Emeritus of the National Association of Immigration Judges

·         Elizabeth Stevens, Chair, Federal Bar Association Immigration Law Section

·         Greg Chen, Director of Government Relations, American Immigration Lawyers Association (Moderator)

Contact twiseman@aila.org to receive dial-in information and the embargoed letter.

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PWS

07-10-19

UNHOLY BEDFELLOWS: Trump’s Cruelty Combines With 9th Cir.’s Complicity To Abuse & Kill U.S. Asylum Seekers In Mexico

https://www.latimes.com/politics/la-na-pol-trump-refugee-camp-rio-grande-migrants-border-20190708-htmlstory.html

Molly O’Toole & Carolyn Cole Report for the LA Times:

A group of roughly 100 Haitians, Africans and South Americans cross the Rio Grande, just shallow enough for adults to wade despite an overnight storm.

As they wait on the muddy bank near Del Rio, Texas, to surrender themselves to the Border Patrol, the voices of children in the group carry across the river to the Mexican side.

There, in the city of Ciudad Acuña, hundreds of migrants have formed an impromptu refugee camp in an ecological park bound on one side by the river. Just outside the park, the official port of entry to the United States sits at the end of a short bridge.

They’ve crossed thousands of miles by foot, boat and bus to seek asylum in the U.S., only to find themselves stalled in a purgatory of soggy tents and overflowing bathrooms. Now, they face an uncertain wait prolonged by Trump administration policy.

The temptation to make the risky and illegal river crossing mounts daily.

“If you see people jumping over the river, it is because they are tired of staying here,” said one resident of the camp, Luis, who declined to give his last name out of fear for the safety of his family back home.

Home for him would be the West African nation of Cameroon, where Luis was vice principal of a school until he fled last fall. He escaped a widening conflict between the country’s English-speaking minority and its Francophone-majority government, which receives security assistance from the U.S.

He was jailed and tortured before escaping to neighboring Nigeria, Luis said. After a trek across three continents, he landed here, where he has waited for six weeks to present himself to U.S. officials at the Del Rio port of entry.

He hopes to join a sister in Ohio.

“At times, it is really disheartening,” he said, “so it is difficult to wait.”

. . . .

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Read the complete article along with Carolyn’s wonderful photography at the link.

Cruel, “designed to fail” policies and complicit judges who fail to protect the statutory, constitutional, and human rights of others are unlikely to stop the flow of forced migrants in the long run. They will, however, succeed in killing some, torturing others, ruining many lives, and causing permanent damage to large numbers of their fellow human beings, particularly children.

NBC/Reuters just reported on continuing concerns, confusion, and accusations regarding treatment of migrants in Mexico by the National Guard. https://apple.news/APdRhfQFnTneror8AprpRZQ I’m willing to bet that this is just the “tip of the iceberg.” Eventually, the true “body count” and extent of the human rights violations chargeable to Trump, the 9th Circuit, and the Mexican Government will surface. It will be unbelievably ugly.

Future generations will also find it difficult to understand and explain our national complicity, since the facts about the abuses the Trump Administration is heaping on humanity in our name are out in the open for life-tenured judges to ignore at the peril of their lasting reputations. And, too many of them are doing just that.

PWS

07-10-19

SPRINT TO THE BOTTOM: Trump Administration Trashes Refugees & Human Rights In A Despicable Return To “1939-Style Fascism Lite!” — America’s Rancid Conduct & Negative Leadership Presages Another Worldwide Refugee Tragedy — This Time The Blood Will Be Directly On Our Hands!

https://www.washingtonpost.com/opinions/were-in-an-age-of-impunity-it-will-have-consequences-for-us-all/2019/07/07/8ff2d894-9f2b-11e9-9ed4-c9089972ad5a_story.html

E.J. Dionne, Jr. writes in the Washington Post commenting on a recent speech by David Miliband, Chief Executive of the International Rescue Committee:

. . . .

“A new and chilling normal is coming into view,” Miliband concluded. “Civilians seen as fair game for armed combatants, humanitarians seen as an impediment to military tactics and therefore unfortunate but expendable collateral, and investigations of and accountability for war crimes an optional extra for state as well as nonstate actors.”

But these evils cannot be isolated from the larger political corrosion in the rest of the world — and this includes the long-standing democracies themselves. “The checks and balances that protect the lives of the most vulnerable people abroad,” he said, “will only be sustained if we renew the checks and balances that sustain liberty at home.”

This isn’t simply about aligning principle and practice. More fundamentally, when governments abandon a commitment to accountability domestically, they no longer feel any obligation to insist upon it internationally. It’s no accident, as Miliband noted, that under President Trump, the United States “has dropped the promotion of human rights around the world from its policy priorities.”

He pulled no punches: “The new order is epitomized in the photo of Russian President [Vladimir] Putin and Saudi Crown Prince [Mohammed bin] Salman high-fiving each other at the G-20 meeting in Argentina in November last year. With Syria in ruins, Yemen in crisis, and political opponents like Boris Nemtsov and Jamal Khashoggi dead, theirs was the embrace of two leaders unencumbered by national institutions or by the fear of international law.”

Miliband acknowledged the mistakes of an earlier era (including the Iraq War) but argued that “accountability, not impunity” was on the rise in the 1990s, when there was “an unusual consensus across the left-right divide” about “the need for global rules.” We have said goodbye to all that.

In 2002, Samantha Power, later the U.S. ambassador to the United Nations, published “ ‘A Problem from Hell’: America and the Age of Genocide,” a book that stirred consciences about the world’s obligations to helpless people unprotected — and often targeted — by sovereign governments.

Nearly two decades on, we are numb, distracted and inward-looking.

Miliband understands that democratic citizens, grappling with their own discontents, will be inclined to look away from the travails of others “until there is a new economic and social bargain that delivers fair shares at home.”

But an Age of Impunity not only poses immediate dangers to millions confronting violence far away. It also corrodes the sense of obligation of the privileged in wealthy nations toward those left behind. When anything goes, no one is safe.

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Read the complete article at the above link.

The key point here for Americans who have been “tone deaf” to Trump’s (and his toadies at DHS, DOJ, DOS, and elsewhere) gross abuses of the rule of law, human rights, and human dignity is the following: “When anything goes, no one is safe.”

PWS

07-08-19

HON. JEFFREY S. CHASE SLAMS BIA, BARR FOR INSTITUTIONALIZING SLOPPY WORK — BIA “Has Certainly Not Earned The Deference”

Jul 5 EOIR’s Troubling New Regulations

On July 2, the Department of Justice published final regulations impacting how decisions of immigration judges will be reviewed, both on appeal to the Board of Immigration Appeals and by certification to the Attorney General. I plan to cover the topic in depth in a later article, but I wanted to post my quick take on the fact that the new rule encourages the BIA to decide cases using two sentences of boilerplate language (plus a citation) that provides no insight into its determination process. However, the regs imbue such decisions with a presumption that the Board “properly and thoroughly considered all issues, arguments, and claims raised or presented by the parties on appeal or in a motion that were deemed appropriate to the disposition of the appeal or motion, whether or not specifically mentioned in the decision.”

Just to be clear, the boilerplate denials look like this (in their entirety):

“ORDER: The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. § 1003.1(e)(4).”

The above decision is referred to as an “affirmance without opinion,” or “AWO” for short. In its commentary accompanying the publication of the final rule, the Department of Justice addressed a commenter’s concern that the BIA may use such AWOs to quickly deny cases even if a favorable disposition is warranted where “the Board member reviewing the case simply lacked the time or inclination to spend his or her resources writing a reasoned, public opinion for that particular case.’’ The Department responded by summarizing the BIA’s process of having staff attorneys first review the record of proceedings before making a recommendation to the Board member. The Department offered such process as proof that “the use of an AWO does not reflect an abbreviated review of a case, but rather reflects the use of an abbreviated order to describe that review…”

Several facts are at odds with this claim. There is an excellent corps of staff attorneys at the BIA, but over the past few years, those staff attorneys have been pushed to decide more cases in less time or risk discipline or termination. Staff attorneys are encouraged to produce 40 decisions per month that are actually signed by Board Members, but are being assigned increasingly difficult cases to decide. One staff attorney reported needing 18 hours to complete one decision on a very unique legal issue, but was still expected to meet the overall quota. Such extreme pressure would make it tempting if not necessary for attorneys to resort to AWOs simply to keep their jobs. Furthermore, as the present EOIR Director has downgraded the staff attorney positions to entry level with no upward progression, and as the agency is strapped for funds, the Board is extremely short of such attorneys at present, further increasing the pressure on those remaining to decide more cases more quickly.

As for review by the Board Members themselves, there were always those who were known to sign anything handed to them. In a 2007 decision of the U.S. Court of Appeals for the Seventh Circuit, former Judge Richard Posner noted that one Board Member, Ed Grant, “was discovered to have decided more than 50 immigration cases in one day, requiring a decision ‘nearly every 10 minutes if he worked a nine-hour day without a break,’” or 7 minutes per case if he worked an 8 hour day and took lunch. See Kadia v. Gonzales, 501 F.3d 817, 820 (7th Cir. 2007). I hope we can all agree that reviewing a complete record of an immigration court hearing, plus the decision drafted for such case, in seven minutes does in fact reflect an abbreviated review of the case.

In its comments to the new regs, the Department further defended its presumption argument by citing the language from a Ninth Circuit decision, Angov v. Lynch, 788 F.3d 893, 905 (9th Cir. 2015), relating to the reliability of a State Department consular investigation which undermined some of the factual claims of an asylum claim. In that case, the court (in a 2-1 decision) upheld the IJ’s reliance on the report (in spite of its author’s unavailability to testify), stating that such reports “aren’t just a collection of statements by disconnected individuals. Rather, they are the unified work product of a U.S. government agency carrying out governmental responsibilities. As such, the report itself, and the acts of the various individuals who helped prepare it, are clothed with a presumption of regularity.”

However, the situation in Angov was not analogous to a BIA decision. In carrying out an investigation to confirm or disprove factual aspects of the asylum claim, the issue of reliability in Angov related to the likelihood of government misconduct: i.e., whether the investigator lied, and in fact had not taken the investigatory steps claimed in the report. The presumption cited by the court was that the State Department officials did their job “fairly, conscientiously, and thoroughly,” that none had a personal stake in the outcome, and that “no one lied or fabricated evidence.” It should also be noted that the Court found that, because the petitioner had not formally entered the U.S., he had no constitutional due process rights, and thus could not challenge the admission of the report on such grounds. And the court conceded that the outcome would have been different had the claim arisen in the Second Circuit, whose case law favored the petitioner’s argument.

However, in the context of the BIA’s review on appeal, the question isn’t whether the single Board member fabricated facts or had a personal stake in the claim. The question is whether the Board Member got it right – i.e. whether he or she properly interpreted the law, and applied that law correctly to the proper facts. History has demonstrated that they often do not, nor would they be expected to when signing a decision every seven minutes.

Yet through the new regulations, the Department of Justice is essentially saying that, due to the crushing case load, just trust that it is doing everything correctly, and defer to its two-sentence boilerplate decisions without requiring further explanation of its reasoning. The retort to this may be found a little later in Judge Posner’s decision in Kadia: “Deference is earned; it is not a birthright. Repeated egregious failures of the Immigration Court and the Board to exercise care commensurate with the stakes in an asylum case can be understood, but not excused, as consequences of a crushing workload that the executive and legislative branches of the federal government have refused to alleviate.” Kadia, supra at 821 (emphasis added). I am not aware of any other court that would expect Circuit Court judges to grant them carte blanche to simply affix rubber-stamp denials on appeals, particularly those involving life-or-death determinations arising in the asylum context. Furthermore, regular readers of my blog or that of my friend Paul Schmidt will know that the BIA errs not infrequently in its interpretation of fact and law. And for the record, the caseload has become far more crushing in the 12 years since Judge Posner penned those words in Kadia.

Take for example a recent decision of the Fourth Circuit. In Orellana v. Barr, No. 18-1513 (4th Cir. May 23, 2019), the court found that the BIA had distorted the evidence of record in order to conclude that the government had been willing and able to control the non-government persecutor by ignoring the many credible instances in which the police did not respond to the petitioner’s call for help, and instead focusing on the few isolated incidents in which they did respond. So had the BIA chosen to decide the case with a two-sentence AWO, should the same circuit court have credited the Board with properly considering and weighing all of the police’s responses and non-responses, without such distortion, because government employees are presumed to properly carry out their duties? The Third Circuit reversed the BIA for its troubling, erroneous overreach in Alimbaev v. Att’y Gen. of U.S., 872 F.3d 188 (3d Cir. 2017), finding the Board to have violated its proper standard of review, and then wrongly reversed based on false insinuation and nitpicking. Had the BIA relied on a two-sentence AWO in that case, should the circuit court have just assumed that none of those errors had occurred, and that the BIA had instead reached the correct conclusion for the right reasons?

The BIA has certainly not earned the deference the Department of Justice believes it deserves based on the regulatory presumption. Hopefully, the circuit courts will waste no time in pointing this out in future appeals of the AWOs we can expect to see frequently from the BIA.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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Like Jeffrey, I’ve been saying for some time now that under the control of Attorneys General who are neither experts in immigration and refugee law nor qualified quasi judicial adjudicators, the Federal Courts should stupor giving “Chevron deference” to BIA decisions.

PWS

07-07-19

TRUMP ADMINISTRATION’S MALICIOUS INCOMPETENTS DENY MIGRANTS INTERPRETERS IN KANGAROO COURTS WHILE LYING ABOUT RATIONALE — Money For Tanks & Golf, None For Due Process? — Why Are The Article III Courts Complicit By Not Blowing Whistle On “Courts” That Don’t Come Close To Providing Due Process?

Tal Kopan
Washington Reporter, SF Chronicle

Link might help for sharing…

https://www.sfchronicle.com/politics/article/Trump-administration-ending-in-person-14070403.php

Trump administration ending in-person interpreters at immigrants’ first hearings

Tal Kopan, San Francisco Chronicle

WASHINGTON — The Trump administration is preparing to replace in-court interpreters at initial immigration court hearings with videos informing asylum seekers and other immigrants facing deportation of their rights, The Chronicle has learned.

The administration portrays the change as a cost-saving measure for an immigration court system bogged down under a growing backlog. But advocates for immigrants are concerned the new procedure could jeopardize their due-process rights, add confusion and potentially make the system less efficient by causing more of them to go underground or appeal cases.

The Justice Department informed the nation’s immigration judges of the change last month at a training session, multiple sources familiar with the situation told The Chronicle.

At issue are “master calendar” hearings where immigration judges meet with undocumented immigrants, usually dozens of them, in rapid succession to schedule their cases and to inform them of their rights. The quick sessions are intended mainly to be sure the immigrants understand what is happening and know when their next hearing will be and what steps they need to take in the interim.

Under the new plan, which the Justice Department told judges could be rolled out by mid-July, a video recorded in multiple languages would play informing immigrants of their rights and the course of the proceedings. But after that, if immigrants have questions, want to say something to the judge or if the judge wants to confirm they understand, no interpreter would be provided.

Many of the immigrants come from Central America, but collectively they speak a diverse range of indigenous languages and sometimes don’t know Spanish. Immigrants from all over the world also come before the court system, which is run by the Justice Department.

The shift would especially affect immigrants who do not have attorneys to explain proceedings. Many immigrants lack representation at the initial hearing, and legal services around the country say they are being stretched thin. The government does not provide attorneys.

Instead of turning to an in-court interpreter, judges would have to rely on any who happen to be in the building for other purposes, or call a telephone service for on-demand translation that judges say can be woefully inadequate or substantially delayed.

“It’s a disaster in the making,” one judge said, speaking on condition of anonymity because the person did not have Justice Department approval to talk publicly. “What if you have an individual that speaks an indigenous language and has no education and is completely illiterate? You think showing them a video is going to completely inform them of their rights? How are they supposed to ask questions of the judge?”

The Justice Department billed the move as a cost-saving measure. Sources familiar with the interpreter situation say there have been ongoing issues with the budget and the contract with the primary interpreter provider, leading the administration to encourage more use of the telephone service and look for other ways to keep costs down.

A Justice Department who was not authorized to speak on the record said the shift away from in-person interpretation was “part of an effort to be good stewards of (the department’s) limited resources.” The official said the direction to judges was not a policy change, but declined to elaborate.

The immigration judges union, the National Association of Immigration Judges, said the change was another in a line of steps the administration has taken to force judges to do more with fewer resources at the risk of fairness.

Asked to comment, union President Ashley Tabaddor, a judge in Los Angeles, said the Justice Department had not given enough notice for the union to raise objections or provide input on the change.

She dismissed budget concerns as a justification.

“Interpreter cost is not a surprise cost — it’s an integral part of every case,” Tabaddor said. “If they actually look at the courts as a real court, they would never be dismissive of the role of an interpreter. But the fact that we are here and have these budget shortfalls means they have prioritized the budget in a way that is dismissive of the integral role of the interpreters, and reflects the flaw of having the courts run by a law enforcement agency.”

The immigration courts have been overwhelmed for years with a burgeoning load that is now approaching 1 million cases. The judges association has advocated for the courts to be removed from the Justice Department and made an independent system.

The Trump administration has made a series of efforts it says are intended to speed up the process and avoid having hundreds of thousands of immigrants build lives in the U.S. while waiting to learn if they will be deported. Critics, including immigration lawyers and advocates and some judges, say many of the changes have actually undermined the system, confusing immigrants and creating grounds for lengthy appeals.

Some judges said it’s common at master calendar hearings for immigrants to misunderstand the advice to find a lawyer. Some conclude that means they should not return for their next hearing if they don’t have a lawyer. Failing to appear is grounds for a deportation order.

The system is “not an assembly line,” said Jeffrey Chase, a former immigration judge and former senior legal adviser to the immigration appeals court who now volunteers for organizations that provide legal assistance to immigrants. He said the master calendar is most immigrants’ first impression ever of a court system, and that a lack of interpreters and interaction with a judge could foster a sense of distrust.

“You’re dealing with people’s lives,” Chase said. “All kinds of crazy issues arise. Sometimes there’s a health issue, and you need to be able to communicate to find this stuff out.

“And also, people come in so afraid,” Chase said. “If they’re able to talk with the judge and realize, ‘This person is a human being and they’re able to work with me’ — being played a tape reinforces this feeling that, ‘I’m dealing with this deportation machine.’ ”

Chase said concerns about the cost and length of the process are legitimate, but he questioned the administration’s way of addressing them.

“You always hear the word ‘efficiency’ from this administration now, and it’s very infrequent that you hear ‘due process’ or ‘justice,’ ” Chase said. “There’s no longer concern about the balance. It’s totally efficiency-heavy these days, and I think it’s being decided by people who haven’t been in the court much and don’t understand the consequences.”

Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.com Twitter: @talkopan

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My suggestion: In the future, any legal claims involving Members of Congress or Article III Judges and any members of their immediate families should be tried only in U.S. Immigration Court. The opposing party should be given the ability to:

Select the judge;
Write or rewrite the rules governing the litigation;
Change any result with which they might disagree; and perhaps most important
The proceedings shall be conducted in a language that only the opposing party and the “judge” understand.

That way, these folks would be receiving the same type of “justice” under the Constitution that they are happy to inflict on individuals in today’s Immigration Courts. Seems fair to me.

PWS

07-03-19

CONSTITUTIONAL SCOFFLAW BARR “OUTED” AGAIN: U.S. District Judge Marsha Pechman (WD WA) Rips AG’s Unconstitutional Denial Of Bonds To Asylum Seekers – Finds Matter of M-S- Unlawful!

https://apple.news/AVi9zCrsgS2y4pg6ZqHWJ6A

Vanessa Romo reports for NPR:

A Seattle federal judge ruled Tuesday that asylum-seeking migrants detained for being in the U.S. illegally have the right to a bond hearing in immigration court rather than being held until their cases are complete.

U.S. District Judge Marsha Pechman said it is unconstitutional to indefinitely detain migrants who fled to the U.S. seeking asylum protections.

The decision reverses an April directivefrom Attorney General William Barr ordering immigration judges not to release migrants on bail after an applicant successfully establishes “a credible fear of persecution or torture” in the home country — a policy that has been in place since 2005.

“The court finds that plaintiffs have established a constitutionally-protected interest in their liberty, a right to due process, which includes a hearing before a neutral decision maker to assess the necessity of their detention and a likelihood of success on the merits of that issue,” Pechman wrote.

In her ruling, Pechman also took issue with an aspect of Barr’s policy that left open the possibility that migrants, still awaiting a hearing, could be re-detained by ICE after being released on bond.

“The Government’s unwillingness to unconditionally assert that Plaintiffs will not be re-detained means that the specter of re-detention looms and these Plaintiffs and many members of their class face the real and imminent threat of bondless and indefinite detention …,” she said.

The ruling comes amid a widespread shortage of immigration judges that has caused massive delays in processing hearings. The most recent dataavailable from The Transactional Records Access Clearinghouse shows a total of 424 judges nationwide face a backlog of 892,517 cases on the courts’ active dockets as of the end of April.

“The three largest immigration courts were so under-resourced that hearing dates were being scheduled as far out as August 2023 in New York City, October 2022 in Los Angeles, and April 2022 in San Francisco,” TRAC reports

Pechman also modified a preliminary injunction issued earlier this year. The new injunction requires the government to ensure bond hearings are held within seven days after they are requested by eligible asylum-seekers. If the government exceeds that limit, the undocumented immigrant must be released.

Immigrant rights advocates, including the American Civil Liberties Union and the Northwest Immigrant Rights Project, sued to block the policy, which was set to take effect this month.

In a statement, Matt Adams, legal director of Northwest Immigrant Rights Project, said: “The court reaffirmed what has been settled for decades: that asylum seekers who enter this country have a right to be free from arbitrary detention.”

Michael Tan, senior staff attorney for the ACLU’s Immigrants’ Rights Project, added: “Try as it may, the administration cannot circumvent the Constitution in its effort to deter and punish asylum-seekers applying for protection.”

The Department of Justice is expected to appeal the ruling quickly.

Copyright 2019 NPR. To see more, visit NPR.

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Go to the NPR website for a full copy of Judge Pechman’s decision in Padilla v. ICE.

So, while the 9^thCircuit is bopping along violating human rights by enabling Trump’s absurdly illegal “Kill ‘Em in Mexico Program,” as a result of a three-judge panel who tanked on their oaths of office, Judge Pechman and some others at the “retail level” of the Federal Judiciary are still on the job and upholding our Constitution against the all-out assault led by Barr on behalf of Trump.

It’s also worth remembering that the U.S. Attorney General is supposed to uphold the Constitution and protect individual rights, rather than serving as tool of racist White Nationalist extremism as Sessions and Barr have done. Already in shambles and a disgraceful ethical morass, there won’t be anything left of the “Justice” Department by the time Barr’s toxic tenure ends.

Bill Barr is a national disgrace and an affront to American justice. But, hey, it’s the Trump Adminisration, so what else is new?

PWS

07-03-19

AILA’S LAURA LYNCH SPEAKS OUT AGAINST BARR’S LATEST ASSAULT ON DUE PROCESS IN IMMIGRATION COURT — The System Has Become A Public Travesty That Insults Our Constitution — Why Are The Article IIIs Damaging Their Legacy By Enabling This Ugly Charade? — What Good Is Life Tenure If It Comes Without Backbone & Integrity?

https://www.aila.org/advo-media/press-releases/2019/aila-ag-attempts-power-grab-over-immigration

Here is AILA’s Statement:

AILA: AG Attempts Power Grab over Immigration Appeals

https://www.aila.org/advo-media/press-releases/2019/aila-ag-attempts-power-grab-over-immigration

AILA Doc. No. 19070236

AILA: AG Attempts Power Grab over Immigration Appeals

AILA Doc. No. 19070236 | Dated July 2, 2019

CONTACTS:

George Tzamaras
202-507-7649
gtzamaras@aila.org Belle Woods
202-507-7675
bwoods@aila.org

WASHINGTON, DC – On July 2, 2019, Attorney General (AG) Barr published a final rule, further expanding his authority to reshape immigration law. The rule was issued in a highly unusual manner by resurrecting an old proposed regulation from 11 years ago and making it final within 60 days without any opportunity for public comment.

AILA President Marketa Lindt said, “This regulation exemplifies why the immigration courts should not be housed under the Department of Justice (DOJ). Under this administration, the AG has already utilized the certification power in an unprecedented manner to unilaterally strip immigration judges of basic operational authorities, interfere with judicial independence, and even attempt to rewrite asylum and detention laws. The American legal system is designed with fundamental procedural protections, such as briefing by the parties, to ensure the decision maker-here the AG-hears all points of view before deciding an important case. This new rule, however, authorizes the AG to singlehandedly designate Board of Immigration Appeals (Board) decisions as precedent – and do so literally overnight bypassing the necessary legal procedures and without any checks and balances.”

AILA Executive Director Benjamin Johnson added, “This is the most aggressive effort to unify control over the immigration courts in 20 years; I have never seen an administration claw back a discarded rule like this in order to further assert its power. The scope of this power grab could be immense. This rule attempts to shield decisions issued by the Board – including decisions for which the Board didn’t even bother to write an opinion – from federal court review and tries to force the U.S. Courts of Appeals to presume that the Board reviewed all the available information and claims made by the parties even if there’s nothing to show the Board did so. Simply put, the AG will have more power with less oversight, and immigrants’ right to appeal to the federal courts will be far more limited. This attack on the judicial branch proves further that our nation urgently needs an independent immigration court system separate from the Department of Justice. Nothing less will suffice.”

Cite as AILA Doc. No. 19070236.

Laura A. Lynch, Esq.

Senior Policy Counsel

Direct: 202.507.7627 I Email: llynch@aila.org

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

Thanks, Laura, for speaking out!

Every Court of Appeals Judge who signs off on one of these constitutionally defective removal orders produced by EOIR, an illegitimate “court” that functions without either fundamental fairness or impartiality under procedures that no such judge would accept if applied to them or their loved ones, should hang his or her head in shame.

Once the Trump nightmare is over, courage and integrity to stand up against Government overreach should be the touchstone for all future Article III judicial appointments. No more “go along to get along” Federal Judges at any level of the system! The Judicial Branch was actually conceived and established as a protector of liberty and justice against tyranny, not as an enabler of, and apologist for, “abuses by the Crown” (or in this case, “the Clown”).

What kind of “judge” stands by and watches while empowered cowards like Trump and Barr unconstitutionally “beat up” on America’s most vulnerable who seek only the basic justice and fairness that our Constitution supposedly guarantees to “all persons.” Judges who allow the dehumanization and “de-personification” of others, in others words “Dred Scottification,” might someday find themselves and those they actually care about becoming “Dred Scott” by their dereliction of duty!

PWS

07-03-19

TRUMP’S DHS STOOGES LIED! — Gov’s Own Photos & Reports Show Filthy, Disgusting, Inhumane Detention Conditions — Lawyers, Reporters, Dems Vindicated — DHS Officials Who Denied Mistreatment Lied — Why Haven’t They Been Fired?

https://apple.news/A72_kcc-XTqCtxbEfuTrUzQ

Julia Ainsley — Julia Edwards Ainsley
Investigative Reporter, NBC News

AnnieRose Ramos — Annie Rose Ramos
Producer, NBC News

WASHINGTON — Government investigators have identified poor conditions in another sector of the southern border, publishing graphic photos showing extreme overcrowding in Rio Grande Valley migrant facilities and finding that children there did not have access to showers and had to sleep on concrete floors.

Investigators for the Department of Homeland Security who visited border stations in the El Paso, Texas, sector in May found similar conditions: Migrants being held in temporary facilities for weeks rather than days, single adults living in standing room-only cells with no space to lie down, and concerns about serious health risks.

The investigators for the DHS Office of the Inspector General toured five Border Patrol facilities and two ports of entry in the Rio Grande Valley sector during the week of June 10 and published their report as a “management alert” to the department on Tuesday.

Read the full report here.

The Rio Grande valley of Texas has the highest volume of immigrants along the United States-Mexico border. At the time of the visits by investigators, Border Patrol was holding 8,000 detainees in custody, with 3,400 being held longer than the 72-hour limit.

One senior manager at a facility called the situation a “ticking time bomb,” according to the report. When immigrants detained in the facilities saw investigators walking through, they banged on the cell windows and pressed notes against the plexiglass to show the length of time they had spent in custody. One said “Help 40 Day Here.”

On Monday, NBC News published findings by the inspector general that detailed poor conditions for migrants in border stations in El Paso as far back as May 7. Acting DHS Secretary Kevin McAleenan said at a press conference Friday that reports of poor conditions for children in border stations were “unsubstantiated.” McAleenan said children were given showers as soon as they could be made available.

“Most single adults had not had a shower in CBP custody despite several being held for as long as a month,” according to the latest report on conditions in the Rio Grande Valley.

The report also detailed what it called “security incidents” in which immigrants have tried to escape and once refused to return to their cells after being removed during maintenance. To address the problem, Border Patrol called in its special operations force to “demonstrate it was prepared to use force if necessary,” the report said.

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

Go to the link to see the DHS IG’s own photos documenting the abusive conditions and to get a link to the redacted report showing how McAleenan, Provost, Trump and others are coving up an intentionally created human rights disaster inflicted upon the most vulnerable.

We’re beyond “malicious incompetence” and basically into covering up possible criminal misconduct. Why haven’t McAleenan, Provost, and the other human rights abusers been fired? I guess it’s because this is the Trump Administration where neither the law nor morality matter!

And, this doesn’t even factor in the racism, misogyny, cruelty, and and white supremacy infecting the Border Patrol as exposed in a recent report by Pro Publica https://www.propublica.org/article/secret-border-patrol-facebook-group-agents-joke-about-migrant-deaths-post-sexist-memes

To state the obvious, if Pro Publica can find this “hidden in plain sight” trash, it’s been right there under the noses of McAleenan, Provost, Morgan, and other DHS malicious incompetents all along. They just chose to look the other way.

PWS

07-02-19

COURTSIDE HAS BEEN SAYING IT FOR YEARS; THE NY TIMES FINALLY PICKS UP: Trump & Co’s White Nationalist Racist Immigration Policies Are Corrupting America!

https://www.nytimes.com/2019/07/01/opinion/border-immigration.html

The NY Times Editorial Board writes:

Last year, as part of an effort to carry out President Trump’s promise of “extreme vetting” of visitors to the United States, the Department of Homeland Security began collecting social media account information from millions of people seeking to cross the border.

After all, a radical online could be a radical offline.

That’s why the stream of posts ricocheting around a 9,500-member Facebook group, comprising current and former Border Patrol agents as well as some people with no apparent connection to the Border Patrol, is so troubling. Members of the group, as documented by ProPublica this week, “joked about the deaths of migrants, discussed throwing burritos at Latino members of Congress visiting a detention facility in Texas on Monday and posted a vulgar illustration depicting Rep. Alexandria Ocasio-Cortez engaged in oral sex with a detained migrant, according to screenshots of their postings.”

Of a 16-year-old migrant from Guatemala who died while in Border Patrol custody in May, a member of the group wrote, “If he dies, he dies.”

Customs and Border Protection said on Monday that it had informed the Department of Homeland Security’s inspector general about the posts and had started its own investigation. The National Border Patrol union decried the posts as “inappropriate and unprofessional.”

A reckoning from their superiors is due for any border agents who dishonored their uniform by spreading vileness on social media. In June, when the Plain View Project, a nonprofit research effort, released documentation on dozens of police officers from eight departments across the country posting racist, misogynist and Islamophobic material, 72 police officers in Philadelphia were pulled off the streets and the top prosecutor in St. Louis said she would no longer accept cases from 22 officers.

In a larger sense, the Border Patrol Facebook posts reveal a worrying mind-set among some of those charged with administering the harshest crackdown on migrants and asylum-seekers in decades. “These are clearly agents who are desensitized to the point of being dangerous to migrants and their co-workers,” Representative Joaquin Castro, who heads the Congressional Hispanic Caucus, told ProPublica.

The realities of that crackdown have created conditions that Americans would condemn if they were in another country.

While lawmakers refuse to compromise on emergency aid for the humanitarian needs at the border, “children are held for weeks in deplorable conditions, without access to soap, clean water, showers, clean clothing, toilets, toothbrushes, adequate nutrition or adequate sleep,” groups supporting the children wrote in a recent court filing. A judge on Friday ordered Customs and Border Protection to allow health workers into facilities where children are being held to ensure that conditions are “safe and sanitary.”

On Monday, Ms. Ocasio-Cortez toured facilities where migrants and asylum-seekers are being held. “Officers were keeping women in cells w/ no water & had told them to drink out of the toilets,” she tweeted.

As the congressional delegation arrived at one detention facility, they were heckled and cursed at by demonstrators, including one man wearing a Make America Great Again hat. (Another heckler hurled ethnic slurs at Representative Rashida Tlaib.)

Only a callous person could find mirth in the misery at the border. And only a desensitized nation could continue to permit the separation of children from their parents — and detaining all of them in atrocious conditions — as a morally acceptable form of deterrence.

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

The constant lies, false narratives, intentional inhumanity, and “deterrence only” of Trump’s self-created “border crisis” are merely the latest example of how White Nationalism demeans our nation. This Administration has all of the legal tools necessary to process arriving asylum seekers in a fair, timely, and orderly manner. They just refuse to use them as they were intended to solve, rather than intentionally create and aggravate, migration problems.

Contrary to Trump/GOP false narratives, that includes the present ability to establish a legitimate refugee application program in or near the Northern Triangle and to use it as an incentive for refugees to apply outside the United States rather than coming to the border to apply for asylum. However, to work as an incentive, rather than a failed deterrent, the refugee program must be administered in a fair and generous manner that would allow those who have legitimate fears of persecution on the basis of gender, actual or political opposition to gangs, ethnicity, or religious activities to be properly classified as refugees and resettled here or in some other truly safe location as determined in conjunction with the UNHCR and signatory countries outside the Northern Triangle who can actually provide at least a reasonable chance of safety.

That likely means a goal of admitting at least 50,000 to 100,000 refugees to the U.S. from Central America over the next year. That, along with robust aid to address the problems creating the refugee flow would be the legal and effective approach to the forced migration issue.

Additionally, the Administration has the ability to reauthorize and extend “Temporary Protected Status” (“TPS”) to qualified individuals from the Northern Triangle already present in the U.S. until such time as the conditions in their home countries can be stabilized. This would also have the advantage of tracking the presence of such individuals in the United States while reducing the pressure on the already backlogged U.S. Immigration Court system.

Of course, the Administration has no intention of using any of these tools to solve the problem. That would be inconsistent with their racist, restrictionist, White Nationalist agenda aimed primarily at keeping non-white individuals out of the United States and reducing the rights and political power of those who are already citizens. The purpose of refugee protection laws is actually to protect refugees, not, as this Administration posits, to kill as many of them as possible outside the U.S. or at our border to “deter” other refugees from coming.

Indeed, the Administration’s absurdly inhuman and unlawful proposal to keep refugees from leaving the very countries where they are being persecuted, without addressing the conditions there, is basically that having them die, be tortured, or abused there is just fine with us. Whether folks like to face it or not, that is indeed a neo-Nazi philosophy. And, every day that Trump remains in the office for which he is so supremely unqualified further corrupts our nation.

PWS

07-02-19

DOJ FINALIZES REG INTENDED TO CEMENT EVASION OF REGULATORY PROCESS & “RULE BY PRECEDENT” – Drops Some Of The More Controversial Proposals In Proposed Regulation!

Tal Kopan reports for the SF Chronicle:

https://www.sfchronicle.com/politics/article/AG-Barr-moves-forward-with-immigration-court-14063716.php

AG Barr moves forward with immigration court changes

By Tal Kopan

WASHINGTON — Attorney General William Barr has moved forward with a regulation changing the way immigration courts handle appeals, expanding the ability of that court to issue decisions that bind the way all immigration judges must decide cases.

The final version of the proposal, which will be published Tuesday, backs away from other changes after the public raised concerns the appellate body would have too much discretion over precedent.

Barr’s first major regulatory change to the immigration courts continues efforts started by his predecessor, former Attorney General Jeff Sessions, to tighten the ways immigrants can pursue a right to stay in the country. As first reported by The Chronicle, the regulation originally proposed during the George W. Bush administration was revived under President Trump and sent for review in April.

The version set for publication drops some of the more controversial provisions of the original proposal but expands the ability of the appellate body, the Board of Immigration Appeals, to issue binding decisions about immigration law.

A senior Department of Justice official who briefed reporters on the condition of anonymity called the regulation a “cleanup rule more than anything else.” But, the official said, the administration believes it’s important to make the courts “as efficient or as effective through the process as possible.”

The immigration courts are separate from the federal judiciary and exist entirely under the control of the Department of Justice and attorney general. The lower courts hear arguments as to why immigrants should be legally allowed to stay in the U.S. and decide whether they should be deported.

Appeals of those decisions are reviewed by the Board of Immigration Appeals. Under current law, those decisions remain unpublished, and thus not binding on the entire system unless a majority of all members of the board vote to publish it. According to the Department of Justice, the board averages less than 30 such decisions each year.

The new regulation creates another way for decisions to become binding — at the direction of the attorney general. Such a change could allow the attorney general to shape all immigration judges’ decisions by selecting which appellate decisions should become precedent.

The final regulation also expands the circumstances under which the Board of Immigration Appeals can hear cases for potential binding precedent, including “the need to resolve a complex, novel, unusual, or recurring issue of law or fact” in the immigration courts, which would allow the board to take up cases that pose what the department views as a repeat issue in the lower courts. It also would allow the board to weigh parts of the case that lawyers did not bring up at appeal.

One aspect of the proposal that the administration chose not to pursue was expanding judges’ ability to issue cursory opinions that had no written explanation. The Bush-era version would have allowed judges to consider their time and resources in doing so, which the Trump administration opted against. The final version also bowed to concerns and dropped a proposal that would have allowed two out of three judges behind a decision to make their own ruling precedent.

Under Trump, the administration has taken a keen interest in the immigration courts as it seeks to tackle the nearly million-case backlog that allows many migrants seeking asylum and other rights to stay in the country as they wait years for their case to work through the system.

Sessions began using the attorney general’s power to refer cases to himself for review. Under immigration law, the attorney general has the final say over the immigration courts system, similar to the Supreme Court in the federal judiciary. Sessions issued several binding decisions that limited the right to claim asylum for domestic violence and gang violence victims, and he sped up the court process by reducing judge’s discretion to close or postpone cases.

That authority would still exist under this new rule, but the attorney general now could also opt to have a decision with which he agrees issued as binding and skip reviewing the decision himself.

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

No wonder they don’t want to use the regulatory process, preferring to “rule by fiat” instead. As this example shows, promulgating a regulation in the face of widespread and well-reasoned public opposition can turn out to be problematic in later court challenges.

The proposed relgulation was a recycled “relic” from the Bush II Admnistration. But, it’s not like the Obama Administration did much for improving Due Process and fundamental fairness in Immigration Court. Honestly, I think that they kind of liked the idea of a subservient, captive, “go along to get along” system that functioned as a bureaucracy yet looked like a court, originally pioneered under Bush II.

Obviously, part of the game here is to misuse the ostensible Immigration “Court” precedent process to shore up the DOJ’s ability to defend DHS’s most extreme positions in the Article III courts. In other words, the Immigration Courts now serve both the interests of DHS Enforcement and the litigating attorneys at OIL who defend DHS’s orders of removal in the Courts of Appeals.

The rights of the individuals, who are supposed to be the focus of this system, have become nominalized, at best. But, some Article III Courts either haven’t bothered to figure this out or else know and just don’t care because, hey, dead, tortured, raped, and otherwise brutalized deportees don’t usually make headlines in the local papers. Out of sight, out of mind.

While DOJ does still “go through the motions” of soliciting briefs on new precedents, such solicitations reach a much smaller audience than do proposed regulatory changes. Also, since the DOJ routinely ignores all the cogent arguments in the briefs and plows ahead with its obviously “predetermined” precedent resolution, some groups have undoubtedly given up on the EOIR “fake” amicus briefing process, preferring instead to marshal their resources for an Article III court challenges. There, real judges still appear to actually read and respond to many, if not all, legal arguments and sometimes are persuaded by them.

For example, our “Roundtable” amicus briefs have had considerable influence in the Article III courts after the same or similar arguments were largely ignored by EOIR and the AG.

But, as I keep suggesting, what if everyone could work together to actually improve Due Process and fix the broken Immigration Court system, rather than having to devote limited high-level pro bono time and resources to fending off further outrageous assaults on the system by the DOJ and DHS? It would also free up time for the Article III Courts which in the near future are likely to have their civil dockets dominated and likely overwhelmed by petitions for review showcasing the sloppy and defective work emanating from the broken and dysfunctional Immigration Courts and their “pedal faster, cut more corners, quality and fairness be damned” philosophy.

Nice work, Tal. Great to have you “back in the immigration headlines again.”

PWS

07-01-19

COURTSIDE EXCLUSIVE — INSIDE EOIR — “TRASHED IN TRANSLATION: EOIR’S Latest Attack On Due Process In Immigration Courts Shocks Professional Interpreters, Outrages Judges!”

EYORE — “Eyore”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

TRASHED IN TRANSLATION: EOIR’S Latest Attack On Due Process In Immigration Courts Shocks Professional Interpreters, Outrages Judges!

By Paul Wickham Schmidt for Immigrationcourtside.com

Alexandria, VA, July 1, 2019. No, it isn’t as dramatic as pictures of drowned families and caged toddlers. But, the effects of the latest move by those running our U.S. Immigration Courts and their political handlers could turn out to be just as deadly. Judges and interpreters were shocked by EOIR’s recently announced truncation of the right to receive effective live interpretations during master calendars as well as more management-ordered “aimless docket shuffling” which both denies due process and artificially “jacks up” already overwhelming backlogs.

How important is master calendar? It’s where individuals make their initial appearance in court and are advised about their right to a lawyer, procedures for obtaining pro bono counsel, given warnings, plead to charges of removability, seek bond if detained, have possible relief from removability explained, file applications for relief like asylum, have hearing dates and filing deadlines set, learn the DHS position on applications, have current address confirmed, receive DHS fillings, make and receive rulings on preliminary motions, and receive warnings as to the dire consequences of failure to appear and meet filing deadlines, to name just some things that go on. In other words, “important stuff.”

What happens when non-judicial politicos interfere with judges’ individual case scheduling and docketing by setting artificial limits on when and how they use interpreters? Cases that have been rescheduled numerous times over the years get “moved to the back of the bus” once again.

Individuals and their lawyers faithfully show up for their long-awaited individual “merits” hearings, sometimes after having traveled hundreds of miles, witnesses and families in tow, only to be informed by a clerk that their cases have been taken off the docket without notice for the “convenience of the agency” and will be rescheduled for some unspecified later date. Evidence goes stale, memories fade, witnesses become unavailable, lawyers move on to other jobs, and country conditions change as these cases drag on literally forever because of political meddling and management incompetence. Perhaps worst of all, these same politicos and bureaucrats engineering the delays and backlogs attempt to shift blame to the victims and judges by limiting legitimate continuances, “expediting” cases that aren’t ready to be heard, and dishonestly calling for totally unneeded restrictive changes in the law.

Ostensibly, the truncation of interpretation resulted from mismanagement on the part of these same politicos and bureaucrats who hired additional judges in a hurry without planning for those judges’ support needs, including in person interpreters. And, take it from me as someone who spent thirteen years on the immigration bench and heard thousands of cases, “telephonic interpretation” is not by any means the equivalent of “in person” interpretation Indeed, at some point, I found the process for telephonic interpretation so time wasting and inadequate, that I just stopped using it. But, that was way back when individual judges had at least a little control over what happened on their dockets and what was necessary to achieve due process in an individual case.

More likely, this move is just another step the intentional “dumbing down” of the immigration court process and the systematic dismantling of what little remains of constitutional due process for those pleading for their lives in a system doing its best to “tune them out.” It will result in more illegal removal orders.

However, these will be hard for appellate courts to detect upon review, because they might not be readily apparent from the English language version of the transcripts. Besides, some Article III courts have also abandoned their duties to the Constitution in a mad rush to “rubber stamp” as many defective removal orders as possible to “clear” their own overcrowded dockets at the expense of integrity, fundamental fairness, and quite frankly, innocent lives.

So shocking has become this “under the radar” further de-professionalization of what disingenuously holds itself out to be a ”court” that readers have been sending me anonymous comments from some distraught individual professional court interpreters. Here’s what one such concerned interpreter had to say (edited to preserve confidentiality);

“Bottomline, no more in-person interpretation for master calendars. In addition, in-person interpreters will be assigned in three-hour blocks only. Judges will no longer be allowed to have two languages in one hearing. I think this means no more relay interpretation between indigenous languages and Spanish. I’m concerned about language access being curtailed.”

These further disgraceful developments, showing a complete disregard for legal norms and individual fairness, should be carefully documented in congressional oversight hearings with an eye toward a future independent Article I immigration court. In the meantime, the Article III courts could and should put a stop to this travesty and force the system to meet at least minimal standards of professionalism and due process pending needed legislative reforms.

No American citizen would want to trust him or herself to this parody of a court system. Yet, due process under our Constitution applies equally to “all persons,” not just citizens, and the stakes in these cases often are life or death. If we refuse to defend the rights of the least among us, who will stand for our rights when the forces of oppression shift their ugly gaze? Even exaulted, yet too often complicit, life-tenured Article III judges should be asking themselves that question.

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

PWS

07-01-19

AMERICA’S “MASS ATROCITY” — Professor Kate Cronin-Furman Says Don’t Kid Yourself About What The Trump Administration Is Doing In Your Name & How “Ordinary Civil Servants” Carry Out The Unthinkable & Unacceptable!

Professor Kate Cronin-Furman writes in the NY Times:

The debate over whether “concentration camps” is the right term for migrant detention centers on the southern border has drawn long-overdue attention to the American government’s dehumanizing treatment of defenseless children. A pediatrician who visited in June said the centers could be compared to “torture facilities.” Having studied mass atrocities for over a decade, I agree.

At least seven migrant children have died in United States custody since last year. The details reported by lawyers who visited a Customs and Border Protection facility in Clint, Tex., in June were shocking: children who had not bathed in weeks, toddlers without diapers, sick babies being cared for by other children. As a human rights lawyer and then as a political scientist, I have spoken to the victims of some of the worst things that human beings have ever done to each other, in places ranging from Cambodia to the Democratic Republic of the Congo to Sri Lanka. What’s happening at the border doesn’t match the scale of these horrors, but if, as appears to be the case, these harsh conditions have been intentionally inflicted on children as part a broader plan to deter others from migrating, then it meets the definition of a mass atrocity: a deliberate, systematic attack on civilians. And like past atrocities, it is being committed by a complex organizational structure made up of people at all different levels of involvement.

Thinking of what’s happening in this way gives us a repertoire of tools with which to fight the abuses, beyond the usual exhortations to call our representatives and donate to border charities.

Those of us who want to stop what’s happening need to think about all the different individuals playing a role in the systematic mistreatment of migrant children and how we can get them to stop participating. We should focus most on those who have less of a personal commitment to the abusive policies that are being carried out.

Testimony from trials and truth commissions has revealed that many atrocity perpetrators think of what they’re doing as they would think of any other day job. While the leaders who order atrocities may be acting out of strongly held ideological beliefs or political survival concerns, the so-called “foot soldiers” and the middle men and women are often just there for the paycheck.

This lack of personal investment means that these participants in atrocities can be much more susceptible to pressure than national leaders. Specifically, they are sensitive to social pressure, which has been shown to have played a huge role in atrocity commission and desistance in the Holocaust, Rwanda and elsewhere. The campaign to stop the abuses at the border should exploit this sensitivity and put social pressure on those involved in enforcing the Trump administration’s immigration policies.

Here is what that might look like:

The identities of the individual Customs and Border Protection agents who are physically separating children from their families and staffing the detention centers are not undiscoverable. Immigration lawyers have agent names; journalists reporting at the border have names, photos and even videos. These agents’ actions should be publicized, particularly in their home communities.

This is not an argument for doxxing — it’s about exposure of their participation in atrocities to audiences whose opinion they care about. The knowledge, for instance, that when you go to church on Sunday, your entire congregation will have seen you on TV ripping a child out of her father’s arms is a serious social cost to bear. The desire to avoid this kind of social shame may be enough to persuade some agents to quit and may hinder the recruitment of replacements. For those who won’t (or can’t) quit, it may induce them to treat the vulnerable individuals under their control more humanely. In Denmark during World War II, for instance, strong social pressure, including from the churches, contributed to the refusal of the country to comply with Nazi orders to deport its Jewish citizens.

The midlevel functionaries who make the system run are not as visibly involved in the “dirty work,” but there are still clear potential reputational consequences that could change their incentives. The lawyer who stood up in court to try to parse the meaning of “safe and sanitary” conditions — suggesting that this requirement might not include toothbrushes and soap for the children in border patrol custody if they were there for a “shorter term” stay — passed an ethics exam to be admitted to the bar. Similar to the way the American Medical Association has made it clear that its members must not participate in torture, the American Bar Association should signal that anyone who defends the border patrol’s mistreatment of children will not be considered a member in good standing of the legal profession. This will deter the participation of some, if only out of concern over their future career prospects.

The individuals running detention centers are arguably directly responsible for torture, which could trigger a number of consequences at the international level. Activists should partner with human rights organizations to bring these abuses before international bodies like the United Nations Human Rights Council. They should lobby for human rights investigations, for other governments to deny entry visas to those involved in the abuses, or even for the initiation of torture prosecutions in foreign courts. For someone who is “just following orders,” the prospect of being internationally shamed as a rights abuser and being unable to travel freely may be significant enough to persuade them to stop participating.

When those directly involved in atrocities can’t be swayed, their enablers are often more responsive. For-profit companies are supplying food and other material goods to the detention centers. Boycotts against them and their parent entities may persuade them to stop doing so. Employees of these companies can follow the example of Wayfair workers, who organized a walkout on Wednesday in protest of their company’s sale of furniture to the contractor outfitting the detention centers. Finally, anyone can support existing divestment campaigns to pressure financial institutions to end their support of immigration abuses.

Many Americans have been asking each other “But what can we DO?” The answer is that we call these abuses mass atrocities and use the tool kit this label offers us to fight them. So far, mobilization against what’s happening on the border has mostly followed standard political activism scripts: raising public awareness, organizing protests, phoning our congressional representatives. These efforts are critical, but they aren’t enough. Children are suffering and dying. The fastest way to stop it is to make sure everyone who is responsible faces consequences.

Dr. Cronin-Furman is an assistant professor of human rights.

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“The fastest way to stop it is to make sure everyone who is responsible faces consequences.”

That includes attorneys who defend indefensible policies in Federal Court as well as Federal Judges all the way up to the Supremes who fail to stand up for Due Process for individuals, and who insist on treating Trump’s overt attacks on our Constitution, democracy, and human dignity as within the scope of “normal” Executive actions rather than intentional and dishonest abuses requiring censure and strong, courageous, unconditional disapproval.

PWS

06-30-19

INSIDE THE KAKISTOCRACY: “Cooch Cooch” Takes Commanding Lead In Race To The Bottom – Rep. Don Beyer (D-VA) Nails Him Cold!

Rep. Don Beyer

@RepDonBeyer

Ken Cuccinelli immediately stands out in an Administration that values cruelty. What a despicable and heartless thing to say.

Quote Tweet

The Washington Post

@washingtonpost

Jun 28

Ken Cuccinelli, head of citizenship service, blames migrant father for drowning deaths captured in photo (link: https://wapo.st/2NlcWTb) wapo.st/2NlcWTb

8:19 AM · Jun 28, 2019· Twitter for iPhone

590

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1.6K

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Thanks, Don, and well said! I’m proud to have you for our Representative here in Alexandria. You have been a constant voice of decency, common sense, and opposition to the “malicious incompetence” of the Trump Kakistocracy. And those of us in Virginia who survived the “Modern Day Jim Crow Era” of “Cooch Cooch” as Virginia Attorney General know just what a nasty, vile, unqualified, racist hack he has always been and always will be. Heck, even Mitch McConnell can’t stand him, and that says something!

“Cooch Cooch’s” latest despicable act of note comes along with provoking an immediate rebellion among Asylum Officers. As I predicted, “Cooch Cooch” has already distinguished himself as a “lowlife among bottom dwellers.”

PWS

06-29-19

AMEN: A PRAYER IN THE TIME OF KAKISTOCRACY!

Judge (Ret.) Jeffrey S. Chase writes:

Hi all: I volunteer on Tuesday nights at a free immigration law clinic run by the New Sanctuary Coalition, based in Judson Church In Greenwich Village, NYC. As you can imagine, fear has been running high since the announcement of multi-city raids. Micah Bucey, a minister at Judson, composed the following non-denominational centering prayer that is now recited before each clinic. I share with you for inspiration:

Spirit of Resistance,

You who are beyond the capacity of any border or name,

You who stretch beyond the indignity of any cage

You who envelop us in the power to persist, to protest, and to rehumanize, //

As we bring our passion and our pain to this place,

We offer gratitude for small gatherings that do monumental things,

We offer gratitude for a fierce community that unbuilds walls

And we offer gratitude for dreams of the world we are creating. //

We ask that you

Refresh us with new breath and energy for the long haul,

Guide us through fear, frustration, and panic,

Expand our hearts to envelop all those who pass through this room tonight and all those who have yet to make it to this room,

Ignite the fire of our faith in the truth that love knows no borders. //

Help us to never forget

That ICE is meant to melt,

That you cannot deport a movement,

And that the moral arc of the universe only bends toward justice if we keep bending it together. //

Amen

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PWS

06-29-19

CONTACTS:
George Tzamaras 202-507-7649 gtzamaras@aila.org	Belle Woods 202-507-7675 bwoods@aila.org

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The key point here for Americans who have been “tone deaf” to Trump’s (and his toadies at DHS, DOJ, DOS, and elsewhere) gross abuses of the rule of law, human rights, and human dignity is the following: “When anything goes, no one is safe.”

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TRASHED IN TRANSLATION: EOIR’S Latest Attack On Due Process In Immigration Courts Shocks Professional Interpreters, Outrages Judges!

By Paul Wickham Schmidt for Immigrationcourtside.com

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“The fastest way to stop it is to make sure everyone who is responsible faces consequences.”

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Judge (Ret.) Jeffrey S. Chase writes:

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