"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
LOS ANGELES — The Justice Department cannot require that local police departments help immigration agents in order to receive federal funding, a federal judge has ruled. The ruling is a significant victory for local governments that have opposed the Trump administration’s stance on immigration and vowed to stay out of enforcement efforts.
United States District Judge Manuel Real in Los Angeles issued a permanent, national injunction against the federal funding rules, giving the city an important win in a long-running legal battle with Attorney General Jeff Sessions and the White House.
The ruling is “a complete victory,” Mike Feuer, the Los Angeles city attorney, said Thursday. “This is yet another dagger in the heart of the administration’s efforts to use federal funds as a weapon to make local jurisdictions complicit in its civil immigration enforcement policies.”
A Justice Department spokesman, Devin M. O’Malley, suggested an appeal was likely.
The federal government is legally entitled to give priority in its grant funding to local governments “that prioritize the safety of their communities and their law enforcement officers when they promise to cooperate with federal immigration authorities seeking information about illegal aliens who have committed crimes,” he said in a statement.
“Unfortunately,” he added, “the court not only rejected this common-sense conclusion, but it chose to issue a permanent nationwide injunction that is overbroad and inconsistent with the rule of law. We look forward to continuing the strong defense of our position.”
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Los Angeles has received millions of dollars under a federal program to promote community policing.CreditMonica Almeida/The New York Times
The ruling handed down Wednesday came in one of several lawsuitsthat state and city officials in California have filed against the federal government arguing that it has overreached in trying to force local officers to help with immigration enforcement.
“The Trump administration cannot manipulate federal grant fund requirements to pressure states, counties or municipalities to enforce federal immigration laws,” Xavier Becerra, California’s attorney general, said last year when the state filed a lawsuit against the administration for denying funding to so-called sanctuary cities.
Last month, a federal district judge declined to issue a preliminary injunction against the federal government in that case, saying that the courts in other parts of the country had reached different conclusions and that “issues in this case will benefit from further development.”
After that ruling, the Trump administration filed its own lawsuit against California over its own “sanctuary state” law, which prevents the police in many cases from holding people at the request of federal immigration agents, and limits the sharing of information about the release of some county jail inmates who are in the country illegally. In its suit, the federal government argues that the law makes it impossible for immigration officers to do their jobs. A hearing in the case is scheduled for late June.
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Read the complete article at the link.
The losses just keep piling up for Gonzo & Co. And, not surprisingly, the inability of Gonzo to provide anything approaching a rational basis for his actions is a continuing problem.
He’s a guy whose career has been based on bias and racism. And, when that’s the only unstated rationale for a program, many Federal Courts are seeing right through the ruse. No, terrorizing communities and destroying relationships that have taken decades or more to build is not about effective law enforcement! It’s all about racism and bias.
Here’s a link to Judge Real’s decision in City of Los Angeles v. Sessions
Why did Paul Ryan choose not to run for re-election? What will be the consequences? Your guess is as good as mine — literally. I can speculate based on what I read in the papers, but so can you.
On the other hand, I do have some insight into how Ryan — who has always been an obvious con man, to anyone willing to see — came to become speaker of the House. And that’s a story that reflects badly not just on Ryan himself, not just on his party, but also on self-proclaimed centrists and the news media, who boosted his career through their malfeasance. Furthermore, the forces that brought Ryan to a position of power are the same forces that have brought America to the edge of a constitutional crisis.
About Ryan: Incredibly, I’m seeing some news reports about his exit that portray him as a serious policy wonk and fiscal hawk who, sadly, found himself unable to fulfill his mission in the Trump era. Unbelievable.
Look, the single animating principle of everything Ryan did and proposed was to comfort the comfortable while afflicting the afflicted. Can anyone name a single instance in which his supposed concern about the deficit made him willing to impose any burden on the wealthy, in which his supposed compassion made him willing to improve the lives of the poor? Remember, he voted against the Simpson-Bowles debt commission proposal not because of its real flaws, but because it would raise taxes and fail to repeal Obamacare.
And his “deficit reduction” proposals were always frauds. The revenue loss from tax cuts always exceeded any explicit spending cuts, so the pretense of fiscal responsibility came entirely from “magic asterisks”: extra revenue from closing unspecified loopholes, reduced spending from cutting unspecified programs. I called him a flimflam man back in 2010, and nothing he has done since has called that judgment into question.
So how did such an obvious con artist get a reputation for seriousness and fiscal probity? Basically, he was the beneficiary of ideological affirmative action.
Even now, in this age of Trump, there are a substantial number of opinion leaders — especially, but not only, in the news media — whose careers, whose professional brands, rest on the notion that they stand above the political fray. For such people, asserting that both sides have a point, that there are serious, honest people on both left and right, practically defines their identity.
Yet the reality of 21st-century U.S. politics is one of asymmetric polarization in many dimensions. One of these dimensions is intellectual: While there are some serious, honest conservative thinkers, they have no influence on the modern Republican Party. What’s a centrist to do?
The answer, all too often, has involved what we might call motivated gullibility. Centrists who couldn’t find real examples of serious, honest conservatives lavished praise on politicians who played that role on TV. Paul Ryan wasn’t actually very good at faking it; true fiscal experts ridiculed his “mystery meat” budgets. But never mind: The narrative required that the character Ryan played exist, so everyone pretended that he was the genuine article.
Which brings us to the role of the congressional G.O.P. and Ryan in particular in the Trump era.
Some commentators seem surprised at the way men who talked nonstop about fiscal probity under Barack Obama cheerfully supported tax cuts that will explode the deficit under Trump. They also seem shocked at the apparent indifference of Ryan and his colleagues to Trump’s corruption and contempt for the rule of law. What happened to their principles?
The answer, of course, is that the principles they claimed to have never had anything to do with their actual goals. In particular, Republicans haven’t abandoned their concerns about budget deficits, because they never cared about deficits; they only faked concern as an excuse to cut social programs.
And if you ask why Ryan never took a stand against Trumpian corruption, why he never showed any concern about Trump’s authoritarian tendencies, what ever made you think he would take such a stand? Again, if you look at Ryan’s actions, not the character he played to gullible audiences, he has never shown himself willing to sacrifice anything he wants — not one dime — on behalf of his professed principles. Why on earth would you expect him to stick his neck out to defend the rule of law?
So now Ryan is leaving. Good riddance. But hold the celebrations: If he was no better than the rest of his party, he was also no worse. It’s possible that his successor as speaker will show more backbone than he has — but only if that successor is, well, a Democrat.
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Yup. I’ve said before that Paul Ryan is a 24 carat fraud. He delivered on totally unnecessary tax cuts for the Koch Brothers and other “fat cats” that hurt the rest of America and that will cost us well into the future. He failed on Dreamer relief which should and could have been a “no brainer.” That tells you all you really need to know about this disingenuous creep!
Ahmed Abdelbasit, a New Jersey teacher who faces a death sentence in Egypt for his pro-democracy activism, was detained last week outside his Jersey City apartment by U.S. Immigration and Customs Enforcement. Three days later, a notice came in the mail saying his asylum case had been transferred to an immigration court.
On that Thursday morning, seven plainclothes ICE officers demanded that Abdelbasit get into an unmarked car. Confused, the physics teacher complied, all while frantically texting his friends and co-workers to let them he would not be in class that day at a private Islamic school in Union City.
HuffPost has learned that Abdelbasit, 33, was taken to a detention center in Elizabeth, New Jersey, where he was forced to turn over his belongings and was given an orange jumpsuit to wear. Abdelbasit has been held there ever since.
ICE confirmed to HuffPost that he is being held at Elizabeth Detention Center on administrative immigration violations. ICE would not elaborate on what those violations were.
It was only after Abdelbasit was detained did his lawyer learn that his asylum case was transferred to immigration court in a notice that arrived three days after Abdelbasit’s arrest, HuffPost has learned, leaving the teacher and his lawyer with more questions than answers.
“It’s not clear why they would feel the need to detain somebody who has no criminal record in the United States, who has been living a very law-abiding life here and has been doing everything correctly,” Anwen Hughes, Abdelbasit’s lawyer and the deputy legal director at Human Rights First, told HuffPost. “It’s very unclear why this happened. What we’re trying to find out at the moment is what the actual basis is for this.”
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Read the complete report at the link.
Based on the information in the report, it’s not obvious why ICE would choose to detain this individual. But, of course, we don’t know all of the facts at this point.
Take it from a former judge: Quotas for Immigration Judges are a Bad Idea.
On March 30th, the U.S. Department of Justice and Attorney General Sessions announced that Immigration Judges will now be subject to case completion quotas. This unprecedented change will be effective October 1, 2018, and starting then, immigration judges will be subject to performance reviews (tied to job security and raises) that focus on meaningless numbers and disregards due process. As a recently retired immigration judge, I believe this decision is short sighted and not fair to judges, or to the parties that appear in court on either side (government or immigrant and their families), or to our legal system.
Attorney General Sessions says that the current back log in immigration courts is a primary reason for this entirely new quota system; however, I know from experience that quotas will not reduce backlog and will in fact increase our current backlog problems. About 15 years ago, former Attorney General John Ashcroft attempted to reduce backlogs at the Board of Immigration Appeals (the court that hears all the appeals from immigration judges’ decisions). Ashcroft eliminated the Board’s authority to review de novo (or, review as if hearing the case for the first time) decisions of the Immigration Judges with regard to findings of fact and determination of an immigrant respondent’s credibility. As a result, the Board began issuing summary two page decisions, with little or no legal analysis. Those shortened decisions did reduce the amount of time cases were pending before the Board of Immigration Appeals, but had the opposite effect on the actual backlog of immigration cases as thousands of petitions for review were filed throughout the country with the Courts of Appeal. Given the increase in the number of filings and the decrease in the thoroughness of the decision, the Courts of Appeal became extremely hostile to the quality, professionalism and final agency work product of the immigration court judges and particularly the Board. Many cases were remanded, or sent back to immigration judges, for new hearings based on perceived mistakes at the trial level or at the Board, resulting in further delays in court processing times and the issuance of final decisions.
Attorney General Sessions would do well to learn from his predecessor’s mistake. Sessions’ mandate that the judges decide cases “faster” and more “efficiently” ignores the fact that the immigration court judges are currently rendering decisions in a timely manner. However, immigration judges must also follow the constraints of due process, which means giving both sides an opportunity to present their case and then for the judge to fully consider the applicable law and issue a thoughtful decision. A system that evaluates immigration judge performance based on how fast they can complete cases will certainly undermine the quality and thoroughness of decisions. Current law and our legal system requires full and fair hearings, followed by a well-reasoned decision that is consistent with the facts and relevant law. An immigration judge should be evaluated based on quality not quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors. As we have seen before, poor decisions will directly result in more appeals to the Board of Immigration Appeals and the Courts of Appeal, causing more delays and running contrary to the goals of the Attorney General.
An equally troubling consequence of the case completion requirement is the possibility of a judge’s decision being influenced by factors outside the facts of the case. For example, the court is asked for a continuance in many cases to await action or decision by the U.S. Citizenship and Immigration Services (USCIS) on pending applications. Such applications are “u” visas for crime victims, I-601A waivers for unlawful presence, I-130 visa petitions for family members of residents or citizens, or I-751 applications for certain individuals married to US citizens. By law, immigration judges cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. To date, case law supports judges granting continuances, when it makes sense, in circumstances like these. However, under the new quota system, a judge could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of his concern about his completion numbers and keeping his job. That is not justice; it seems more like an assembly line. Similarly, in some cases a continuance may be necessary because of the need for additional evidence or because of a witness’s unavailability. But now, a judge will be hesitant to grant such a continuance if she is concerned about his completion numbers, salary, or job security.
Additionally, an arbitrary case completion number of 700 ignores the wide disparity of cases appearing before the immigration courts. Unrepresented cases at the border or cases in detention often are completed in expedited fashion where little or no relief is sought. However, in many of the interior courts, such as in Chicago where I was a judge, most applicants are represented, present multiple witnesses including experts, and submit sophisticated legal arguments requiring extended trial time. These interior courts complete far less merit cases than at the border, yet the decisions often involve more complex legal issues. To provide context, I’d guess that judges in the interior, working the same hours and pace as judges on the border, probably complete 400 or 500 cases per year. To average the nationwide completion rate completely ignores the wide disparity of decision complexity required in different parts of the country.
Finally, the new quotas are an affront to due process and our legal system. Immigration judges are required by law and the Constitution’s Fifth Amendment to exercise due process in all cases, considering all the facts of case. Judges currently do this and issue decisions in an expeditious manner as soon as possible; judges do not purposefully stall cases. Putting artificial pressure on judges to complete cases more quickly is wrong; Attorney General Sessions is essentially asking the judges to short cut or violate due process, by disregarding thoroughness, fairness, and litigants’ opportunity to be heard, and abandon current law-abiding procedures for case adjudication.
In short, I believe the administration’s plan to impose numeric quotas on immigration judges will not speed up “deportations” if this is their goal, and may result in unforeseen consequences that actual delay the fair hearing process that presently exists.
Judge Vinikoor joined the law firm of Minsky, McCormick & Hallagan, P.C., in 2017 after serving over 30 years as an Immigration Judge.
Judge Vinikoor was appointed as an Immigration Judge in January 1984. During his long tenure on the immigration bench, Judge Vinikoor has authored numerous precedent deciding cases covering topics such as crimes involving moral turpitude, aggravated felony offenses, frauds committed at time of entry and/or adjustment and claims to U.S. citizenship. Judge Vinikoor’s decisions helped define the age limitations for K-4 beneficiaries seeking adjustment of status, the use of Section 245(i) to waive inadmissibility, and the scope of numerous discretionary waivers. A number of published opinions have addressed Judge Vinikoor’s expert analysis in cases involving burden of proof, marriage fraud, and Section 216(c)(4) evidence. During the past 30 years Judge Vinikoor has heard evidence in asylum cases from around the world. His decisions have led to a better understanding of the scope and evidence needed to qualify as a “refugee” under the Immigration and Nationality Act. Upon his retirement from the bench, he was the second most senior Immigration Judge in the country.
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Prior to his retirement in 2017, my good friend and colleague Judge Bob Vinikoor was one of the most widely respected, indeed revered, U.S. Immigration Judges. Indeed, at the time of his retirement, he was #2 in seniority among all U.S. Immigration Judges.
He was widely known for his fairness, scholarship, kindness, practical wisdom, humor, and ability to “move” a docket while respecting everyone’s rights. In a rational judicial system, those in charge would be looking for a way to “clone” someone like Judge Vinikoor and use his knowledge and skills to teach and mentor younger judges, rather than letting him pass into retirement.
In the “Age of Trump & Sessions” — with a blatant effort underway to “dumb down” the U.S. Immigration Judiciary and reduce it to an assembly line operation — it’s highly unlikely that there will be more Judge Vinikoors. That’s a huge loss for everyone, but particularly for the cause of justice in America and for those who depend on the Immigration Court system to deliver potentially life saving Due Process and fairness!
Department of Justice Program Defunds Legal Orientation and Help Desk Programs for 53,000 Immigrants Per Year, Violating Congressional Requirements and Undermining Efforts to Reduce Immigration Court Backlogs
Statement of Mary Meg McCarthy, Executive Director, National Immigrant Justice Center
Today the National Immigrant Justice Center (NIJC) and immigration legal service providers across the country received the alarming news that the Department of Justice (DOJ) plans to terminate the Legal Orientation Program (LOP) and the Immigration Court Helpdesk program. LOP is a life line for the more than 40,000 immigrants who face complex deportation proceedings from remote detention facilities every day. Through LOP, legal service organizations provide basic information to men and women in immigration jails about the detention and deportation process. The goals of the bipartisan program are to improve judicial efficiency and help immigrants in detention without attorneys navigate the immigration court process. Today, LOP services reach 40 detention facilities and over 50,000 detained people in desperate need of legal services.
Terminating the LOP and help desk programs is an affront to Congress. The report language accompanying the 2018 omnibus spending bill explicitly required the Executive Office for Immigration Review to “continue ongoing programs,” adopted language in the House Report providing that funding “sustains the current legal orientation program and related assistance, such as the information desk pilot,” and adopted language in the Senate Report noting the need for expanded LOP services in remote immigration facilities.
Terminating the LOP and help desk program is a deliberate attempt to eliminate due process from the deportation process. News of the legal orientation program termination comes when the administration is forcing unreasonable quotas on immigration judges to accelerate adjudications in the massively backlogged court system, and also pursuing a policy of mass prolonged detention at the border. This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due process rights. Because more than four out of every five detained immigrants are unable to access legal representation, LOP staff are quite literally the last and only line of defense for detained individuals trying to understand how to represent themselves in their claims to asylum and other forms of protection in immigration court.
Terminating the LOP program is an act of flagrant fiscal irresponsibility. A 2012 DOJ study found that detained immigrants who received legal orientation completed their court proceedings more quickly and remained detained for an average of six fewer days, yielding the government a net savings of more than $17.8 million per year.
NIJC calls on Congress to oppose the administration’s affront to due process by taking any and all steps possible to ensure that DOJ complies with its congressional directives and maintains the LOP and help desk programs as they currently exist.
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This is no real surprise, given the overt White Nationalist restrictionist agenda of Trump, Sessions, and their cronies. This isn’t driven by false “fiscal economy.” It’s driven by an agenda biased against immigrants, Latinos, and asylum seekers. Facts and truth are irrelevant when dealing with folks like Trump and Gonzo.
Scott Pruitt wastes taxpayer money left and right, as does Trump. Meanwhile, worthy, essential Government programs like the LOP are being “zero funded.” It’s totally outrageous!
While Gonzo hasn’t achieved the degree of personal greed-based corruption that some other Administration officials have, he makes up for it by grossly misusing the resources of the Department of Justice to decrease justice, fairness, and Due Process in America. It’s mind-boggling how we could end up with an anti-American, xenophobic, racist as Attorney General nearly two decades into the 21st Century. But, it’s happened. Yet, Sessions is for real and he’s recreating the “Jim Crow of his youth” in today’s America.
There are a good number of lawyers who don’t love their jobs. Sure, the pay is often good. But the hours can be long and the work narrow, leaving many people without much sense of a mission.
The lawyers who work for the Department of Justice, however, tend to feel quite differently about their work.
I’ve known and interviewed many over the years, and they have some of the highest job satisfaction of any group of people I can think of. “You get to do good for a living, and in the name of your country,” as James Comey said in a 2005 speech to Justice Department employees (the same speech I highlighted in my column earlier this week). “If that doesn’t motivate you to work hard, nothing will.”
To many Justice Department lawyers, doing good means pursuing equality under the law. They see themselves as representing some of the highest American ideals: Every citizen deserves the protection of the law, and no citizen is above the law.
Donald Trump does not share the view that the United States has a fundamental set of rules that apply alike to rich and poor, powerful and powerless. “Trump isn’t someone who played close to the line a time or two, or once did a shady deal. He may well be the single most corrupt major business figure in the United States of America,” The Washington Post’s Paul Waldman wrote yesterday. Waldman then listed Trump’s scams: Trump University, bankrupt casinos, illegal labor, stiffed vendors and on and on and on.
He has often figured out how to stop shy of outright illegality or, in other cases, to violate the law in ways that bring only minor sanctions. He has rarely faced big consequences for his misbehavior. But Trump now finds himself in a very different situation.
The scale of the misbehavior by him and his associates appears to be large. It occurred on perhaps the biggest national stage of all, in a presidential campaign. And dozens of talented, committed Justice Department officials have the assignment of figuring out what he actually did. Thank goodness for them and for the work they are doing.
“Mr. Trump has spent his career in the company of developers and celebrities, and also of grifters, cons, sharks, goons and crooks,” The Times editorial board writes. “He cuts corners, he lies, he cheats, he brags about it, and for the most part, he’s gotten away with it, protected by threats of litigation, hush money and his own bravado.”
But, as the headline of that piece bluntly puts it: “The law is coming, Mr. Trump.”
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It’s certainly ironic that Trump and Sessions no longer get along. They are both totally corrupt and dishonest in their own unique ways. Each is a fraud in his own right. And their shared dedication to intellectual dishonesty, bullying, racism, White Nationalism, xenophobia, divisiveness, skewed justice, and every horrible aspect of America’s past certainly should be a uniting factor.
It would be nice to think that the justice system and Justice Department that they abuse every day in office will get the last laugh and eventually sack them up. But, it’s by no means certain that justice will be done here. On the other hand, it’s highly unlikely that Trump, Sessions, or today’s GOP will escape the judgement of history for their misdeeds and the damage they are intentionally inflicting upon our country every day that they are allowed to remain in the offices for which they are so supremely unqualified.
WASHINGTON (The Borowitz Report)—In a fit of pique, David and Charles Koch have unceremoniously listed House Speaker Paul Ryan for sale on the auction site eBay.
The Kochs, who reportedly had purchased Ryan for a sum estimated in the tens of millions, now seem likely to lose their entire investment.
According to Ryan’s listing on the auction site, the Kochs set a five-hundred-dollar asking price for the used congressman, a figure that, in light of the tepid bidding for him, seems optimistic.
“Granted, owning Paul Ryan doesn’t have the benefits that it’s had for David and Charles for all of these years, but the status of owning a former Speaker of the House has to be worth something,” one Koch associate said. “Certainly more than the current high bid of seventeen dollars.”
The eBay listing suggested several possible uses for the former House Speaker, including as a Halloween ornament or garden gnome.
Immigration judges are the trial-level judges who make the life-changing decisions of whether or not non-citizens are allowed to remain in the United States. They are facing a virtual mountain of cases: almost 700,000 for about 335 judges in the United States. The work is hard. The law is complicated. The stories people share in court are frequently traumatic and emotions are high because the stakes are so dire. Because these are considered civil cases, people are not provided attorneys and must pay for one, find a volunteer, or represent themselves.
In a move that the Department of Justice claims is intended to reduce this crushing backlog, the DOJ is moving forward with a plan to require judges to meet production quotas and case completion deadlines to be rated as satisfactory in order to keep their jobs. This misguided approach will have the opposite effect.
One cannot measure due process by numbers. The primary job of an immigration judge is to decide each case on its own merits in a fair and impartial way. That is the essence of due process and the oath of office we take. Time metrics simply have no place in that equation. Quality measurements are reasonable, and immigration judge performance should be evaluated, but by judicial standards, which are transparent to the public and expressly prohibit quantitative measures of performance. The imposition of quotas and deadlines forces a judge to choose between providing due process and pushing cases to closure without considering all the necessary evidence.
If quotas and deadlines are applied, judicial time and energy will be diverted to documenting our performance, rather than deciding cases. We become bean-counting employees instead of fair and impartial judges. Our job security will be based on whether or not we meet these unrealistic quotas and our decisions will be subjected to suspicion as to whether any actions we take, such as denying a continuance or excluding a witness, are legally sound or motivated to meet a quota. Under judicial canons of ethics, no judge should hear a case in which he or she has a financial interest. By tying the very livelihood of a judge to how quickly a case is pushed through the system, you have violated the fundamental rule of ensuring an impartial decision maker is presiding over the case.
These measures will undermine the public’s faith in the fairness of our courts, leading to a huge increase in legal challenges that will flood the federal courts. Instead of helping, these doubts will create crippling delays in our already overburdened courts. If history has taught us any lessons, it is that similar attempts to streamline have ultimately resulted in an increase in the backlog of cases.
The unacceptable backlogs at our courts are due to decades of inadequate funding for the courts and politically motivated interference with docket management. The shifting political priorities of various administrations have turned our courts into dog and pony shows for each administration, focusing the court’s scant resources on the cases ‘du jour,’—e.g., children or recent border crossers—instead of cases that were ripe for adjudication.
The solution to the delays that plague our courts is not to scapegoat judges. The solution is two-part: more resources and structural reform. We need even more judges and staff than Congress has provided. Additionally, the immigration courts must be taken out of the Department of Justice, as the mission of an independent and neutral court is incompatible with the role of a law enforcement agency. This latest, misguided decision to impose quotas and performance metrics makes that conclusion clear and highlights the urgent need for structural reform. The measure of a good judge is his or her fairness, not the number of cases he or she can do in a day.
Dana Leigh Marks is president emeritus of the National Association of Immigration Judges and has been a full-time immigration judge in San Francisco since 1987. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
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For those of you who don’t know her, my friend and colleague Dana is not just “any” U.S. Immigration Judge. In addition to her outstanding service as a Immigration Judge and as the President of the NAIJ, as a young attorney, then known as Dana Marks Keener, she successfully argued for the respondent in the landmark Supreme Court case INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
That case for the first time established the generous “well-founded fear” standard for asylum seekers over the objections of the U.S. Government which had argued for a higher “more likely than not” standard. Ironically, it is exactly that generous treatment for asylum seekers mandated by the Supreme Court, which has taken more than four decades to come anywhere close to fruition, that Sessions is aiming to unravel with his mean-spirited White Nationalist inspired restrictionist agenda at the DOJ.
Interestingly, I was in Court listening to the oral argument in Cardoza because as the then Acting General Counsel of the “Legacy INS” I had assisted the Solicitor General’s Office in formulating the “losing” arguments in favor of the INS position that day.
Due Process Forever! Jeff Sessions Never! Join the New Due Process Army and stand up against the White Nationalist restrictionist attack on America and our Constitution!
“A case takes nearly 900 days to make its way through the backlogged immigration courts of Texas. The national average is about 700 days in a system sagging with nearly 700,000 cases.
A new edict from President Donald Trump’s administration orders judges of the immigration courts to speed it up.
Now the pushback begins.
Quotas planned for the nation’s 334 immigration judges will just make the backlog worse by increasing appeals and questions about due process, says Ashley Tabaddor, Los Angeles-based president of the National Association of Immigration Judges.
Quotas of 700 cases a year, first reported by The Wall Street Journal, were laid out in a performance plan memo by U.S. Attorney General Jeff Sessions. They go into effect October 1.
“We believe it is absolutely inconsistent to apply quotas and deadlines on judges who are supposed to exercise independent decision-making authority,” Tabaddor said.
“The parties that appear before the courts will be wondering if the judge is issuing the decision because she is trying to meet a deadline or quota or is she really applying her impartial adjudicative powers,” she added.
. . . .
Faster decision-making could cut the backlog, but it also has many worried about fairness.
The pressure for speed means immigrants would have to move quickly to find an attorney. Without an attorney, the likelihood of deportation increases. Nationally, about 58 percent of immigrants are represented by attorneys, according to Syracuse’s research center. But in Texas, only about a third of the immigrants have legal representation.
Paul Schmidt, a retired immigration judge who served as chairman of the Board of Immigration Appeals for immigration courts for six years, says he saw decisions rendered quickly and without proper legal analysis, leaving it necessary for many cases to be sent back to the immigration court for what he called “a redo.”
“Due process isn’t making widgets,” Schmidt said. “Compare this to what happens in regular courts. No other court system operates this way. Yet the issues in immigration court are life and death,” he said, referring to asylum cases.
Schmidt said there are good judges who take time with cases, which is often needed in asylum pleas from immigrants from countries at war or known for persecution of certain groups.
But he also said there were “some not-very-good judges” with high productivity.
Ramping up the production line, Schmidt said, will waste time.
“You will end up with more do-overs. Some people are going to be railroaded out of the country without fairness and due process,” Schmidt said.
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“It doesn’t make any sense to squeeze them,” said Huyen Pham, a professor at Texas A&M University School of Law in Fort Worth. “When you see a lot more enforcement, it means the immigration court will see a lot more people coming through.”
Lawyers and law school professors say the faster pace of deportation proceedings by the U.S. Immigration and Customs Enforcement spells more trouble ahead. Immigration courts don’t have electronic filing processes for most of the system. Many judges must share the same clerk.
For decades, the nation’s immigration courts have served as a lynchpin in a complex system now under intense scrutiny. Immigration has become a signature issue for the Trump administration.
Five years ago, the backlog was about 344,000 cases — about half today’s amount. It grew, in part, with a rise in Central Americans coming across the border in the past few years. Most were given the opportunity to argue before an immigration judge about why they should stay in the U.S.
This isn’t the first time the judges have faced an administration that wants them to change priorities. President Barack Obama ordered that the cases of Central American unaccompanied children to be moved to the top of docket.
“Our dockets have been used as a political tool regardless of which administration is in power and this constant docket reshuffling, constant reprioritization of cases has only increased the backlog,” Tabaddor said.
The quota edict was followed by a memo to federal prosecutors in the criminal courts with jurisdiction over border areas to issue more misdemeanor charges against immigrants entering the country unlawfully. Sessions’ memo instructs prosecutors “to the extent practicable” to issue the misdemeanor charges for improper entry. On Wednesday, Sessions is scheduled to be in Las Cruces, New Mexico, to speak on immigration enforcement at a border sheriffs’ meeting.
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Judge Ashley Tabaddor, President of the National Association of Immigration Judges (“NAIJ” — for the record, I’m a retired member of the NAIJ) hits the nail on the head. This is about denying immigrants their statutory and Constitutional rights while the Administration engages in “Aimless Docket Reshuffling” (“ADR”) an egregious political abuse that I have been railing against ever since I retired in 2016.
Judge Tabaddor’s words are worth repeating:
“Our dockets have been used as a political tool regardless of which administration is in power and this constant docket reshuffling, constant reprioritization of cases has only increased the backlog,” Tabaddor said.
In plain terms this is fraud, waste, and abuse that Sessions and the DOJ are attempting to “cover up” by dishonestly attempting to “shift the blame” to immigrants, attorneys, and Immigration Judges who in fact are the victims of Session’s unethical behavior. If judges “pedaling faster” were the solution to the backlog (which it isn’t) that would mean that the current backlog was caused by Immigration Judges not working very hard, combined with attorneys and immigrants manipulating the system. Sessions has made various versions of this totally bogus claim to cover up his own “malicious incompetence.”
Indeed, by stripping Immigration Judges of authority effectively to manage their dockets; encouraging mindless enforcement by DHS; terminating DACA without any real basis; insulting and making life more difficult for attorneys trying to do their jobs of representing respondents; attacking legal assistance programs for unrepresented migrants; opening more “kangaroo courts” in locations where immigrants are abused in detention to get them to abandon their claims for relief; threatening established forms of protection (which in fact could be used to grant more cases at the Asylum Office and by stipulation — a much more sane and legal way of reducing dockets); canceling “ready to hear” cases that then are then “orbited” to the end of the docket to send Immigration Judges to detention courts where the judges sometimes did not have enough to do and the cases often weren’t ready for fair hearings; denying Immigration Judges the out of court time necessary to properly prepare cases and write decisions; and failing to emphasize the importance of quality and due process in appellate decision-making at the BIA, Sessions is contributing to and accelerating the breakdown of justice and due process in the U.S. Immigration Courts.
The U.S. immigration courts will temporarily halt a program that offers legal assistance to detained foreign nationals facing deportation while it audits the program’s cost-effectiveness, a federal official said Tuesday.
Officials informed the Vera Institute of Justice that starting this month it will pause the nonprofit’s Legal Orientation Program, which last year held information sessions for 53,000 immigrants in more than a dozen states, including California and Texas.
The federal government will also evaluate Vera’s “help desk,” which offers tips to non-detained immigrants facing deportation proceedings in the Chicago, Miami, New York, Los Angeles and San Antonio courts.
The Executive Office for Immigration Review, which runs the Justice Department’s immigration courts, said the government wants to “conduct efficiency reviews which have not taken place in six years.” An immigration court official, who spoke on the condition of anonymity because the audit has not been formally announced, said the review will examine the cost-effectiveness of the federally funded programs and whether they duplicate efforts within the court system. He noted, for example, that immigration judges are already required to inform immigrants of their rights before a hearing, including their right to find a lawyer at their own expense.
But advocates said the programs administered by Vera and a network of 18 other nonprofits are a legal lifeline for undocumented immigrants.
“This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, one of the organizations that offers the legal services with Vera.
In a statement, the Vera Institute said a 2012 study by the Justice Department concluded that the program was “a cost-effective and efficient way to promote due process” that saved the government nearly $18 million over one year.
The Justice Department is ramping up efforts to cut an immigration court backlog of 650,000 cases in half by 2020. Attorney General Jeff Sessions last week imposed production quotas on immigration judges to spur them to clear cases more quickly.
Immigration courts are separate from U.S. criminal courts, where defendants are entitled to a government-appointed lawyer if they cannot pay for their own legal counsel.
The Vera Institute said approximately 8 in 10 detainees in immigration court face a government prosecutor without a lawyer.
The Executive Office for Immigration Review says on its website that it launched the legal-aid program in 2003, during the administration of George W. Bush, to orient immigrants so that court proceedings would move more quickly.
In Vera’s Legal Orientation Program, lawyers and others hold hour-long group information sessions with detainees to explain their rights, how the court process works and their possible defenses to deportation in federal law, such as seeking asylum if they are in fear for their lives. They also meet with detainees individually and refer detainees to free or low-cost lawyers, but do not represent them in court.
“Experience has shown that the LOP has had positive effects on the immigration court process: detained individuals make wiser, more informed, decisions and are more likely to obtain representation; non-profit organizations reach a wider audience of people with minimal resources; and, cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention,” the agency’s website says.
The help desk answers questions and provides similar information to immigrants who are not detained but are facing deportation.
Maria Sacchetti covers immigration for The Washington Post. She previously reported for the Boston Globe.
The idea expressed by an “anonymous” DOJ official that the brief, often rote “in court” warnings given by Immigration Judges in open court can take the place of a “Know Your Rights” session being conducted in advance, out of court by Vera is preposterous. The “average” initial hearing or “Master Calendar” takes fewer than 10 minutes. My former Arlington Immigration Court colleague Judge Lawrence O. Burman was once “clocked” by a reporter at seven minutes per case, and he is probably more thorough than most Immigration Judges. Moreover, with Immigration Judges being pressured to churn out more final orders of removal faster, required warnings are just one of the aspects of Due Process that are likely to be truncated as Sessions’s “haste makes waste” initiative continues to destroy even the appearance of justice in our U.S. Immigration Courts.
In other words this totally bogus “audit” couldn’t come at a worse time for the beleaguered Immigration Judges of the U.S. Immigration Courts and particularly the often defenseless immigrants who come before them seeking (but far too often not finding) the justice supposedly “guaranteed” to them by our Constitution.
In my long experience, “Know Your Rights” presentations, which often allowed individuals to assess their cases and retain lawyers before their first Immigration Court appearance were one of the best “bang for the buck” programs ever undertaken by EOIR. Immigration Judges relied heavily on them to “keep the line moving” without denying due process.
Sessions methodically is stripping U.S. Immigration Judges of the tools that allow them to do their jobs fairly and efficiently: administrative closing, continuances, ability to control their own court schedules, time and resources to do research and write opinions, and now the assistance of the “Know Your Rights” Programs.
Harm to the most vulnerable among us is harm to all. Jeff “Gonzo Apocalypto” Sessions is a coward who consistently uses bogus narratives and specious reasons to pick on the most vulnerable in our legal system. Join the New Due Process Army and stand up to Gonzo and his anti-American, anti-Constitutional, anti-human agenda! Today, Gonzo is eliminating immigrants’ rights. Tomorrow it will be YOUR RIGHTS. Who will stand up for YOU if you remain silent while the weak and dispossessed are attacked by Gonzo and his ilk!
White House seeks to rekindle immigration debate on Hill
By Tal Kopan, CNN
The White House is quietly feeling the waters on trying for another push on immigration legislation as President Donald Trump continues to up the rhetoric on the issue.
Trump focused on border security and immigration last week, tweeting repeatedly about the need for congressional action and ordering the deployment of the National Guard to the border.
But sources say the there’s more than just tweets, that the White House has been quietly reaching out to allies on the Hill to explore what might be doable. Still, that outreach has to date not included any Democrats and has been unfocused, leaving it unlikely the effort could muster the votes it would need to pass.
“I think there is a real attempt to figure something out — I don’t think they actually know what they want — but there’s a legitimate want to do something on this,” said one senior GOP aide of the White House’s outreach efforts.
The aide characterized the outreach more as floating ideas than coming up with a game plan, and noted that the White House doesn’t seem to be building a coalition to pass the bill yet. Another GOP source agreed any talks are more exploratory than organized.
“It is frustrating that things are so unclear and it would be better to have a coalition that the White House is part of in these conversations, to be a little bit more specific,” the aide said.
South Carolina Sen. Lindsey Graham, a Republican who has worked on unsuccessful bipartisan efforts to save the Deferred Action for Childhood Arrivals policy Trump ended, said on Fox News on Monday that there could be another opportunity.
“The President wants to do a DACA deal — border wall money plus other border security measures are very much on the table,” Graham said. “Our southern border is porous. It needs to be rebuilt strongly and the DACA kids need to have certainty their lives. I hope this President can find Democrats to work with him.”
Dems directly appeal to House Speaker Paul Ryan on election hacking
By Tal Kopan, CNN
The top Democrats on six of the House’s key committees are appealing directly to Speaker Paul Ryan to help them obtain documents from the Trump administration related to election hacking during the 2016 contest.
In a letter sent to the speaker Tuesday morning, the highest-ranking Democrats on the House Oversight, Judiciary, Homeland Security, Foreign Affairs, Intelligence and House Administration committees implored Ryan to intervene in their ongoing efforts to get the Department of Homeland Security to turn over documents related to the targeting of state election-related systems by Russian hackers.
The Democrats asked the department in October to provide copies of the notifications it sent to the 21 states it identified as the target of Russian government-linked attempts to hack voting-related systems and other related documents.
The Democrats wrote when they did not get adequate responses on an ensuing back-and-forth, they asked House Oversight Chairman Trey Gowdy to issue a subpoena, but he did not respond.
The Speaker’s office did not immediately respond to CNN request for comment.
Calling the administration’s response “woefully inadequate,” the group said they’ve “exhausted” the options at the committee level and asked Ryan to “personally intervene to protect the integrity and authorities of the House of Representatives.”
Who knows what will happen. But, for “my $.02,” I doubt that either of these has “legs.” First, Trump has “less than zero credibility” on DACA. Second, the House GOP appears to have no desire whatsoever to get to the bottom of the Russia interference, probably correctly fearing that the fingerprints of Trump, his family, and/or his cronies will be all over the place. They might even find the connection to Putin’s personal lobbyist, “Agent Devon.”
No, I don’t have any “hard evidence.” In the end, it’s possible that Mueller will largely exonerate Trump. I know that many believe that 1) Trump isn’t subtile enough to have done anything “under the table,” and 2) if he had actually manipulated the election, he would have proudly tweeted credit for it by now.
But, the great rush to “close out” the Russia investigation and turn the attention elsewhere, along with clear Russia ties to some associated with the campaign who tried to hide those ties, and clear evidence of Russian meddling to elect Trump certainly is enough “smoke” to suggest that we might eventually find “fire.”
Women from Syria walk with their children in a refugee camp in Cyprus in September.Petros Karadjias/AP
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The United Nations estimates that there are 5.5 million Syrian refugees. In the past three months, the United States has allowed two of them to enter the country—down from about 3,600 in the last threemonths of the Obama administration.
After kicking off his presidency by temporarily banning refugees, Donald Trump lifted the ban in late October. But at the same time, he increased scrutiny of refugees from 11 countries, requiring that they be admitted only if doing so fulfills “critical foreign policy interests.” Refugee advocates said that the language would effectivelyban refugees from a group of mostly Muslim-majority nations. Data from the State Department’s Refugee Processing Center reviewed by Mother Jones confirms their prediction.
The United States has taken in 44 refugees from the targeted countries since Trump issued his executive order, compared to about 12,000 during the same period last year. The countries are Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen.
The heightened vetting of people from those countries has driven down the totalnumber of Muslim refugees coming to the United States. About 550 Muslim refugees have been admitted to the United States since the executive order. More than 11,000 arrived during the same period last year. The share of admitted refugees who are Muslim has dropped from 48 percent at the end of the Obama administration to 11 percent in recent months.
Under Trump’s October executive order, the Department of Homeland Security (DHS) would conduct a 90-day “in-depth threat assessment of each [targeted] country.” During that period, DHS said in a memo to Trump, it would only take refugees from the 11 countries“whose admission is deemed to be in the national interest and poses no threat to the security or welfare of the United States.”
The 90-day mark passed last week. ButSean Piazza, a spokesman for the International Rescue Committee (IRC), a refugee resettlement agency, says the organization has not received any updates about the status of the temporary review now that the 90-day period has passed. It is unclear if it is still in effect, andDHS did not respond to a request for comment. DHS’ October memo stated that refugee admissions from the targeted countries are likely to “occur at a slower pace” beyond the 90-day deadline.
The Trump administration has tried to undermine support for accepting refugees by casting them as an economic burden. In September, the New York Timesreported that White House officials hadkilled a draft report from the Department of Health and Human Services that found that refugees have increased government revenue by $63 billion over the past decade. The report that was ultimately published had a different calculus, documenting how much it costs to provide services to refugees but not how much they pay in taxes.
Overall, the United States in on track to resettle about 21,000 refugees this year, according to the IRC.That would be fewer than in any year since at least 1980—including 2002, when refugee admissions plummeted in the wake of 9/11. It is also less than half of the annual 45,000-refugee cap that the Trump administration set in September, which was the lowest cap ever. Historically, the United States has been considered a world leader in resettling refugees.
Before Trump assumed the presidency, it already took up to two years for refugees to be vetted and resettled, not including the time people spent fleeing their country for refugee camps. Henrike Dessaules, the communications director at the International Refugee Assistance Project, says the group has had clients who “were ready to travel, that had their medical checks, security checks, and interviews done.” Instead, “they have been completely stalled in the process,” she says.*
In 2016, the Obama administration placed its refugee limit at 85,000 people and used all but five of those slots. This year’s drop comes even though there were about 22.5 million refugees across the world in 2016, more than at any time since the United Nations’ refugee agency was founded in 1950.
Syrian refugees escape the war, but die from the cold
Refugees freeze to death in Lebanon02:48
Editor’s Note: This story contains extremely graphic images of dead and wounded people.
Bekaa Valley, Lebanon (CNN) — The rocky, plowed hillside is scattered with clues of what happened that January night. A woman’s scarf. A diaper. Empty cans of tuna fish. A plastic bag of sugar. An empty box of Turkish chocolate biscuits. A single cheap Syrian-made woman’s shoe. Several white, mud-spattered rubber gloves.
It was here, last month, that 17 Syrians froze to death in a night-time snowstorm while trying to cross the mountains into Lebanon.
Three-year-old Sarah is one of the few who survived. She now lies in a bed in the Bekaa Hospital in nearby Zahleh, two intravenous tubes taped to her small right arm. Frostbite left a large dark scab on her forehead. A thick bandage covers her right cheek. Another bandage is wound around her head to cover her frostbitten right ear.
Sarah doesn’t speak. She doesn’t make a sound. Her brown eyes dart around the room — curious, perhaps confused. Her father, Mishaan al Abed, sits by her bed, trying to distract her with his cell phone.
Sarah, 3, suffers from frostbite after smugglers abandoned her and her family as they were crossing into Lebanon.
No one has told Sarah that her mother Manal, her five-year-old sister Hiba, her grandmother, her aunt and two cousins died on the mountain.
“Sometimes she says, ‘I want to eat.’ That’s all,” Abed says. Sarah hasn’t mentioned anything about her ordeal, and he is hesitant to ask her.
An unfortunate reunion
Until now, Sarah hadn’t seen her father for two and a half years. He left Syria for Lebanon and found work as a house painter, leaving his family behind.
Mishaan al Abed sent money back to his wife and kids, who stayed outside the town of Abu Kamal, on the Syrian-Iraqi border.
ISIS controlled Abu Kamal from the summer of 2014 until last November, when it was retaken by Syrian government forces. Fighting still rages in the countryside around it, where Al Abed’s family lived.
After their house was damaged, Abed’s brother and his family, along with Abed’s wife and two children, fled to Damascus. There they paid $4,000 — a fortune for a poor family — to a Syrian lawyer who they were told had the right connections with the army, intelligence and smugglers.
The plan was for them to be driven to the border in private cars on military-only roads. From there, says Abed, they were to walk with the smugglers for half an hour into Lebanon, where they would be met by other cars.
The plan started to fall apart when snow began to fall. The smugglers abandoned the group. The family lost their way and became separated. In the dark and the cold, most of them died. It’s not clear how Sarah and a few others survived.
The only thing that is clear, says hospital director Dr. Antoine Cortas, is that “it is a miracle Sarah is still alive.”
Hidden by the darkness and the snow was a house just a few hundred steps down the mountain.
In January, a group of Syrians froze to death trying to cross into Lebanon during a snowstorm.
Abed was expecting his family to cross over, but became concerned when he didn’t hear from them. “I was told the army had arrested people trying to cross into Lebanon. I thought it must be them. Then the intelligence services sent me a picture. I identified her as my wife.”
He opens the picture on his cell phone. It shows a lifeless woman curled up on the snow amidst thorn bushes, a red woolen cap on her head.
A struggle to cross over, a struggle to remain
More than a million Syrians have taken refuge in Lebanon, straining the resources of a country with a population of around six million. The Lebanese authorities have, to some extent, turned a blind eye to those entering the country illegally. But they have refused to allow relief groups to establish proper refugee camps, unlike Jordan and Turkey, for fear they will become permanent.
What pass for camps — officially called “informal tented settlements” — are ramshackle affairs. Syrians typically pay $100 to a landowner to build drafty, uninsulated breezeblock shelters with flimsy plastic tarpaulins as roofs.
Abu Farhan, a man in his sixties from Hama, in central Syria, lives in one of those shelters in a muddy camp outside the town of Rait, just a few kilometers from the Syrian border. His wife Fatima is ill. She is huddled next to a kerosene stove under a pile of blankets. Between coughing fits, she moans loudly. Farhan has had to borrow more than two million Lebanese pounds — around $1,300 — for her medical treatment.
Denied proper refugee camps, many Syrian refugees live in informal tented settlements.
Illness is just one of the perils here. Vermin, he says, is another. “There’s everything here,” he chuckles bitterly, “even things I’ve never seen before. Rats. Mice. Everything!”
The dilemma that Syrians in Lebanon face is glaringly clear. They’re not welcome here, and it’s difficult to scrape by. According to a recent report by the Norwegian Refugee Council, 71% of Syrian refugees in Lebanon live in poverty.
Point of no return
Some Syrians have returned home, but many, like Abu Musa, a man in his forties who lives in the same settlement as Farhan, insist that returning would be nothing short of suicidal. He comes from Maarat al-Numan, in Idlib province, where Syrian forces, backed by Russian warplanes, are waging an offensive against government opponents.
“Of course, I’d like to go back to Syria!” Musa exclaims, gesturing around his damp, cold hut as if that were reason enough to return home. “But Syria isn’t safe. They’re fighting in my town. My house has been destroyed.”
And thus, Syrians continue to try to make their way to Lebanon, despite the very real risks.
Over 70% of Lebanon’s 1 million Syrian refugees live in poverty
“The people who are walking across the mountains, and taking days to cross the mountains in the middle of winter, are a testament to the fact that Syria is not safe,” said Mike Bruce of the Norwegian Refugee Council.
“Until Syria is safe, until there is a lasting peace, people should not be going back to Syria.”
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With the election of the staunchly anti-American, White Nationalist, xenophobic, religiously bigoted Trump Administration, the United States forfeited any claim to moral leadership and humanitarianism on the world stage. Our anti-refugee policies also harm our allies in the region by forcing them to bear the entire responsibility for sheltering refugees.
Only the electoral removal of this truly un-American Administration and its GOP fellow travelers from power will allow us to begin the healing process. Selfishness and inhumanity are not policies — they are diseases that will consume us all if we don’t exercise our Constitutional and political rights by voting to remove the toxic leaders spreading them!
Here’s what a recent study by Human Rights First has to say about increasing criminal prosecutions for illegal entry:
Additionally, there are security and public safety disadvantages associated with prosecuting illegal entry and reentry, as it diverts scarce judicial and prosecutorial resources from addressing more serious crimes. According to Alex Nowrasteh, an immigration expert at the Cato Institute, “every dollar spent on prosecuting an illegal immigrant for illegal reentry is a dollar that could have been spent on prosecuting or investigating a real crime.” Mr. Nowrasteh further explained that resources could be better allocated to violent crimes and property crimes.118
Criminally prosecuting individuals for illegal entry and illegal reentry also appears to be ineffective as a deterrence mechanism—its stated objective.119 In its 2015 report, the OIG concluded that CBP did not have an adequate system in place to measure whether or not Operation Streamline—or related criminal prosecutions— have succeeded in deterring individuals from
migrating to the United States without authorization.120 Similarly, a 2017 U.S. Government Accountability Office (GAO) report found that the way in which border patrol calculates recidivism rates (i.e. effectiveness) for those prosecuted for illegal entry and reentry is inaccurate, as their calculations do not assess an immigrant’s apprehension history beyond one fiscal year.121 According to Retired Brownsville Judge Felix Recio, “prosecutions have no deterrent effect whatsoever. People will just continue crossing.”122
Today, southern border crossers are increasingly coming to the U.S. to seek protection from human rights violations, violence, and other forms of persecution. With many facing life or death
choices, increased enforcement measures such as prosecution, are even less effective in deterrence. Asylum seekers, unaccompanied children, and others seeking protection, make up a group the Institute for Defense Analyses (IDA)— a DHS contractor—calls a “non-impactable population,” and a group which increased from less than two percent of border apprehension in 2003-2009 to over 33 percent in 2016.123According to IDA, these individuals “make no attempt to evade detection, and all […] surrender to the first USBP agent they encounter,” noting that traditional enforcement mechanisms are not effective in deterring this population.
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So here’s what Jeff “Gonzo Apocalypto” Sessions did in response:
Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry
Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General’s zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018—the largest month-to-month increase since 2011.
“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest—that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” said Attorney General Jeff Sessions. “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws—and as a result, our nation—are respected.”
On April 11, 2017, Attorney General Jeff Sessions announced a renewed commitment to criminal immigration enforcement. As part of that announcement, the Attorney General issued a memorandum to all federal prosecutors and directed them to prioritize the prosecution of certain criminal immigration offenses.
Today’s zero-tolerance policy further directs each U.S. Attorney’s Office along the Southwest Border (i.e., Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and the Southern District of Texas) to adopt a policy to prosecute all Department of Homeland Security referrals of section 1325(a) violations, to the extent
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Poor Gonzo! Nobody has worked harder and with more dedication to earn the title of “Worst Government Executive of the 21st Century.” After all, promoting policies of:
Racism
Homophobia
Xenophobia
Denial of statutory and Constitutional rights
Destruction of the US Immigration Court system
Creation of a “New American Gulag”
Abuses of prosecutorial discretion
Providing misinformation to Congress
Suppression of voting rights
Religious intolerance
Interference with state and local law enforcement
Use of false and misleading statistics
Gross waste and mis-deployment of scarce law enforcement resources
Smearing asylum applicants, DACA young people, and immigration lawyers
Targeting the rights of women, children, an other vulnerable groups
Promoting false connections between immigrants and crime
Trying to shift the blame for “Aimless Docket Reshuffling” in the Immigration Courts by the DOJ to the victims of the DOJ’s misconduct — respondents, lawyers, and judges
should earn Gonzo the title hands down. He’d certainly be my first choice!
Yet, because he lives in the Age of Trump, Scott Pruitt, and other flashier more visibly corrupt violators of the law, ethics, and human decency, Gonzo’s truly reprehensible actions as Attorney General sometimes get buried on the “back pages.”
Not to worry, though, Gonzo! Undoubtedly when scholars and political scientists have a chance to reflect on your truly horrible record as Attorney General and combine it with decades on the public payroll without many obvious positive or constructive contributions to speak of, I’m sure that your place in history as one of the worst and most prejudiced public officials of 21st Century America will be assured!
There is no dispute that the nation’s immigration court system is drowning in its own caseload. It began under the Obama administration’s ramped-up efforts to deport people in the country illegally who had recently crossed the border or who had criminal histories, and accelerated under President Trump’s campaign to roust as many undocumented people as he can. Over the past two years the backlog of active deportation cases has increased from 516,000 to 685,000, according to the Transactional Records Access Clearinghouse at Syracuse University, and the cases have taken, on average, almost two years each to be decided — 711 days.
Now Atty. Gen. Jeff Sessions is pushing immigration judges to speed things up. Starting in October, the department will measure judges’ performance by a new standard that requires each of them to clear 700 cases a year, with fewer than 15% of decisions sent back by appeals courts, in order to receive a “satisfactory” rating.
That’s an assembly line, not a judicial system, and it runs the very real risk of subverting due process rights as individual judges place their job security ahead of justice.
The immigration courts — a branch of the Justice Department, not part of the independent judiciary — have been understaffed for years. Making matters worse, the pace of proceedings is slowed not only by sheer volume, but also by the absence of attorneys to steer clients through the process (immigrants facing civil deportation proceedings are not entitled to government-supplied lawyers, as they would be in criminal cases). Other challenges include the difficulty in procuring and verifying documents from other (sometimes unstable) countries and the time required to weigh evidence in asylum requests and other complex cases.
Judges and immigration lawyers have warned that speeding up the process could increase the number of appealable decisions because there would be legitimate questions over whether a decision to refuse to hear a witness as duplicative, or to not admit further evidence, is based not on the merits but on the fact that the judge is lagging behind in closing cases.
As it is, judges clear an average of 678 cases a year, so pushing that up to 700 might not seem like a big change. But the clearance rate is well below that average in courts where cases are more complex, and there, the effect of the new quotas could be severe. Judges near the southern border handling cases involving new arrivals are able to make decisions faster than, for instance, a judge in the interior of the country handling cases involving people who have established deep roots or have dependents who are American citizens. Cases involving unaccompanied minors can be particularly complex because the law allows a variety of relief options, including requesting asylum or seeking “special immigrant juvenile status” if they have been abused or abandoned by their parents. Given the totality of Trump and Sessions’ attitudes toward people living in the country without permission, it’s not unreasonable to see this imposition of quotas as a pretext for speeding up deportations, due process be damned.
The government, of course, has a right to establish immigration policies and a duty to secure borders. But even noncitizens enjoy the protections of the Constitution, including the right to due process, when they are in the country. This attempt to accelerate the pace of justice through a management-
directed quota system imperils that.
The smarter way to reduce the backlog of pending cases is to expand the court system itself, which Congress, to its credit, has finally begun to do. The current budget includes funding to add 100 judges to the 350 existing positions, and money to speed up the hiring process. Besides, as a Government Accountability Office report last June found, delays in individual cases usually are due to matters beyond a judge’s control. About a quarter of postponements, or continuances, were the result of technical or other operational problems in the courtroom, or the fault of the Department of Homeland Security, such as not having the deportation target available for the hearing. Forcing the judges to speed things up when they don’t control the things that slow the system down will, in all likelihood, make the system more unfair.
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Even adding Immigration Judges and staff will not be enough unless the outdated bureaucratic “Vatican type” structure is abandoned and modern technology and court administration services are brought into the picture.
Moreover, the now ingrained practice of both overt and covert political interference in the Immigration Courts’ docket management must end and the emphasis must be placed solely on due process, fairness, quality, and judicial efficiency.
My experience is that left to their own devices, Immigration Judges are hard-working and dedicated to “getting the job done.” With an independent authority, I believe that the system would over time develop “best judicial practices” and be able to better manage and control the docket. This problem has built up over decades; expecting a “silver bullet” solution that will eliminate the backlog overnight is highly unrealistic.
Yes, there are huge discrepancies in decision outcomes. But, if the system were left to its own devices, these could be sharply reduced, even if not completely eliminated, over time. A true merit based selection system that operates in a more realistic time frame and draws judges of different backgrounds and experiences into the mix would also help in promoting the dialogue and critical thinking necessary to achieve systemically fair results.
Ten years ago, the U.S. Court of Appeals for the Third Circuit decided Hashmi v. Att’y Gen. of the U.S.1 The case involved a request to continue a removal proceeding which the Department of Homeland Security did not oppose. The respondent was married to a U.S. citizen; he would become eligible to adjust his status in immigration court once the visa petition she had filed on his behalf was approved by DHS. However, the approval was delayed for reasons beyond the respondent’s control. One of those reasons was that a part of the respondent’s DHS file was needed by both the office in Cherry Hill, NJ adjudicating the visa petition and the DHS attorney in Newark prosecuting the removal case.
The immigration judge decided that he could wait no longer. Noting that the pendency of the case had exceeded the agency’s stated case completion goals, the judge denied the continuance and ordered the respondent deported. The U.S. Court of Appeals for the Third Circuit reversed, holding that “to reach a decision about whether to grant or deny a motion for a continuance based solely on case-completion goals, with no regard for the circumstances of the case itself, is impermissibly arbitrary.”
In response to Hashmi, the BIA issued a precedent decision stating that unopposed motions of that type should generally be granted.2 In subsequent decisions, the BIA provided further guidance in allowing IJs to make reasonable determinations to continue such cases,3 and to administratively close proceedings where it would further justice (as in Hashmi, where the need for the DHS file to be in two places at once was preventing the case from proceeding).4
In subjecting immigration judges to strict, metrics-based reviews last week, EOIR’s director, James McHenry, may pressure immigration judges into taking the types of actions barred by Hashmi. Under the newly-announced metrics, individual judges may run the risk of disciplinary action for granting reasonable requests for continuance, or for other delays necessary for reaching a fair result. The combined actions of McHenry (who prior to being promoted to the position of agency director had worked for EOIR for approximately 6 months as an administrative law judge with OCAHO, the only component of EOIR that doesn’t deal with immigration law or the immigration courts), and Attorney General Jeff Sessions in recently certifying four BIA decisions to himself, could erase the above positive case law developments of the past decade, and replace them with an incentive for rushed decisions that do not afford adequate safeguards to non-citizens facing deportation.
Allowing reasonable continuances for the parties to obtain counsel, present evidence, and formulate legal theories, or to allow other agencies to adjudicate applications impacting eligibility, is an essential part of affording justice. Judges also need to fully understand the legal arguments presented. When an issue arises in the course of a hearing, it is not uncommon for a judge to ask the parties for briefs, and for the judge to then conduct his or her own legal research before deciding the matter. A detailed decision is also necessary to allow for meaningful review on appeal. However, all of this takes time, and the performance of individual judges will be found to be unsatisfactory or in need of improvement if they complete less than 700 cases per year, complete less than 95 percent of cases at their first merits hearing, or have 15 percent of their cases remanded on appeal.
Some recently reported actions by immigration judges in the name of expediency are troubling. Last Sunday’s episode of Last Week Tonight with John Oliver (for which my colleague Carol King and I served as subject-matter sources) featured a credible-fear review hearing by an immigration judge that lasted one minute and 43 seconds in its entirety (and was probably doubled in length by the need for an interpreter). The judge asked the unrepresented respondent a total of two questions before reaching this decision: “Well, the government of the United States doesn’t afford you protection for this type of reason. I affirm the Asylum Officer’s decision.” It’s not clear how the judge could have been confident in such conclusion. The respondent was detained and had not yet had an opportunity to consult with counsel. Her claim was only sketched in the broadest outline; upon further development by an attorney, it may well have fallen into the “type of reason” for which asylum may be granted. Her credibility was never doubted; in fact, the program reported that she was assaulted at gunpoint by the man she fled after she was deported to her country.
In another case arising in the Ninth Circuit, C.J.L.G. v. Sessions,5 an immigration judge told the mother of a child in removal proceedings who was unable to retain counsel that she could represent her son, and proceeded with the child’s asylum hearing. Of course, the mother was not qualified for the task. Although the son had been threatened with death for resisting gang recruitment efforts, he was denied asylum in a hearing in which many critical questions that could have helped develop a nexus between his fear and a legally protected ground for asylum were never asked. This occurred because the judge did not feel that he could grant another continuance to provide the respondent an additional opportunity to retain counsel.
All of the above-described actions by IJs occurred prior to last week’s announcement by the EOIR director. Should judges struggling to meet the benchmarks feel their job security to be at risk, will actions such as those described above become the norm?
As previously mentioned, the Attorney General certified four decisions of the BIA to himself shortly before the director’s announcement of the new metrics. In one of those cases, Matter of E-F-H-L-,6 Sessions vacated a 2014 BIA precedent decision requiring immigration judges to provide asylum applicants a full hearing on their claim. In another, Matter of A-B-,7 Sessions chose a case in which the BIA twice reversed an immigration judge’s denial of asylum to a victim of domestic violence, and on certification has made the case a referendum on whether victims of private criminal activity may constitute a particular social group for asylum purposes.
Should Sessions decide this issue in the negative, the two decisions taken together may allow for the type of quick denials of the “Government…doesn’t afford you protection for this type of reason” variety discussed above. Fair-minded judges who will continue to hold full hearings and consider legal arguments in favor of granting relief may find it more difficult to meet all of the above benchmarks.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
Notes:
531 F.3d 256 (3d Cir. 2008)
Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).
See Matter of Rajah, 25 I&N Dec. 127 (BIA 2009) (concerning continuances due to pending employment-based visa petitions) ; Matter of C-B-, 25 I&N Dec. 888 (BIA 2012) (requiring reasonable and realistic continuances to obtain counsel); Matter of Montiel, 26 I&N Dec. 555 (BIA 2015) (allowing delaying proceedings for adjudication of criminal appeals).
See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012); Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).
No. 16-73801 (9th Cir. Jan. 29, 2018); Pet. for rehearing and rehearing en banc pending.
