"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.
In the next few weeks, four young men 16 to 24 years old were fatally shot by police during two incidents. Police on both occasions reported an “enfrentamiento,” or confrontation, in which gangsters fired on them. Relatives of the dead said that the officers killed the young men unprovoked.
As with much of the violence here, getting to the truth is difficult. Investigations are often cursory. Some residents said they are too afraid of the police to provide testimony. What is clear is many residents’ deep resentment of the security forces.
“We see the police as terrorists,” said an aunt of one of the four victims, 16-year-old Bryan Rodrigo Santos Arevalo.
The aunt, who spoke on the condition of anonymity, citing a fear of authorities, said that a witness who escaped told her that police had executed the teenager. The right side of Santos Arevalo’s face was blown off, morgue photos show.
If police were using lethal force, so were the gangs. On July 3, 2015, four local police officers were returning from a call when “they attacked us from both sides,” recalled a police supervisor who was present, speaking on the condition of anonymity. Gang members positioned on earthen mounds overlooking the road sprayed gunfire at the officers’ truck, he said. The police sped off, firing frantically, but the driver was hit in his left side. The supervisor was shot in the right knee.
“It’s a miracle that I am alive to tell this story,” the supervisor said.
Three days later, local police along with members of a San Salvador-based SWAT team shot and killed two members of the Tiny Malditos outside a farmhouse in Santa Teresa. The police reported taking gunfire on arrival. Morena Leiva de Silva, the mother of one of the dead, said a farmworker who was present told her that the officers shot the two gang members as they fled.
“They ran from the police because they were terrified,” she said. “They panicked.”
A truce ends
President Salvador Sánchez Cerén was a Marxist guerrilla in the 1980s. Now he is the one defending the state.
“Although some say we are at war, there is no other road,” Sánchez Cerén said in March.
The government of Sánchez Cerén’s predecessor, Mauricio Funes, had engineered a truce between major gangs, transferring their leaders into more lax prisons where they could coordinate with their followers. The homicide rate fell, although critics argued that the respite allowed the gangs to grow stronger.
On taking office in June 2014, Sánchez Cerén brought a swift end to the truce. His government transferred the leaders back to maximum-security lockups, banned visits and cut off cellphone access. He called up military reservists to join the fight against the gangs. The director of the national police announced that officers should feel free to use their weapons to protect themselves. New legislation made it harder to investigate police when they alleged self-defense.
Homicides shot up. Last year, police were responsible for an estimated 1,000 of the country’s 6,600 killings, a steep increase, experts say.
The gangs began targeting police, soldiers, prosecutors and their families in a way unseen. Gang members killed more than 60 police officers last year, nearly doubling the total the year before. Police have confiscated an increasing number of military-style assault rifles from gang members. The attorney general’s office recently accused one of the biggest gangs, Mara Salvatrucha, also known as MS-13, of planning to assemble a 500-man unit of trained gang members to attack security forces. Last fall, a car rigged with explosives detonated outside the Finance Ministry.
The U.N. High Commissioner for Human Rights warned in June that allegations of assassinations by El Salvador’s security forces are “intolerable and are likely to fuel even greater violence.”
The national human rights prosecutor’s office, an independent agency, has compiled a registry of nearly 100 cases of alleged assassinations by security forces or shadowy “extermination groups,” which often include off-duty police, since mid-2013. But the agency acknowledges that there may be many more.
Walter Gerardo Alegria, a deputy head of the office, said it wasn’t clear whether such killings were ordered by authorities. “However, from the quantity of cases that we have, one can assume that this is a systematic practice,” he said.
The director of the national police, Howard Cotto, said he couldn’t rule out that some officers may have taken part in summary executions, but he denied that such behavior was permitted.
“We are not willing to tolerate that under the guise of solving security problems we cover up for people who commit crimes or summary executions,” he said.
The campaign against gangs has been popular among many Salvadorans. But it may come at a terrible cost to this young democracy, said Hector Silva Avalos, who has written a book on the Salvadoran police.
“If between death squads, citizen squads, rough police officers, they kill enough gang members to actually diminish the territorial control of the gangs — then who’s going to be in charge?” he asked. “Police commanders with no respect for human rights?”
This is only a small part of a lengthy article which is available at the above link.
This, not Gonzo’s bogus “Blame DACA Narrative” or his fabricated fraud narrative, is why women and children are fleeing from the Northern Triangle and are likely to continue to do so regardless of how much “deterrence” Gonzo & Gang throw at them. And, these folks have potentially legitimate claims that should be fully and impartially heard in Immigration Court with the assistance of counsel and full appeal rights. Even those who do not fit the “technical requirements” for legal protection under U.S. law might well have strong humanitarian claims for temporary refuge under Temporary Protected Status (“TPS”) (which the last tow Administration ministrations have stubbornly refused to acknowledge) or prosecutorial discretion. We are hardly a “disinterested party” in the rampant violence that is now gripping Central America.
“An alien who seeks admission to the United States without valid documents can be sent home without a hearing, and, this does not apply just to aliens at the border. An undocumented alien may be viewed as “seeking admission” even if he has been living here for more than a year.
But for immigration purposes, words mean whatever the Immigration and Nationality Act (INA) says they mean.
Section 235(a)(1) of the INA says that an alien who is in the United States but has not been “admitted” shall be viewed as an applicant for admission for purposes of this Act. And section 101(a)(13) of the INA says that the terms “admission” and “admitted” mean a lawful entry into the United States after an inspection and authorization by an immigration officer.
This makes it possible for DHS to use expedited removal proceedings to deport undocumented aliens who already are in the United States without giving them hearings before an immigration judge, which is necessary now because the immigration court is experiencing a backlog crisis.As of the end of August 2017, the immigrant court’s backlog was 632,261 cases, and the immigration court has only 330 immigration judges. The backlog is getting larger every year because the judges are not even able to keep up with the new cases they receive each year.
. . . .
In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, can be deported without a hearing before an immigration judge, unless he has a credible fear of persecution.
Previous administrations limited these proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.
Trump opted to use expedited removal proceedings to the full extent authorized by law. In his Executive Order, “Border Security and Immigration Enforcement Improvements,” he orders the DHS Secretary to use the proceedings for the aliens designated in section 235(b)(1)(A)(iii)(II)of the INA, i.e., aliens who are in the United States but were not lawfully admitted and cannot establish that they have been here continuously for two years.
If an alien wants an asylum hearing before an immigration judge, he has to establish to the satisfaction of an asylum officer that he has a credible fear of persecution. If the asylum officer is not persuaded, the alien can request an abbreviated review by an immigration judge, which usually is held within 24 hours.
Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years. I would prefer replacing the immigration officers with immigration judges for proceedings involving aliens who are already in the United States.
Expedited removal proceedings are not used for unaccompanied alien children.
Trump has asked Congress to amend the TVRPA to restrict the unaccompanied alien children protections. In the meantime, steps are being taken to deter parents from bringing their children here illegally.
ICE will be putting the parents of UACs in removal proceedings if they are undocumented aliens too, and if a smuggler was paid, they might be prosecuted for human trafficking.
Immigrant advocates still have time to work with Trump on immigration reform legislation, but once Trump has implemented an expanded expedited removal proceedings program, he is not going to be inclined to stop it. And it could start soon. He recently issued a Request for Information to identify multiple possible detention sites for holding criminal aliens and other immigration violators.”
***********************************
Read Nolan’s full article over on The Hill at the above link.
I have no doubt that the Trump Administration will attempt to “max out’ the use of expedited removal. Interestingly, however, although the Executive Order referenced by Nolan was issued at the beginning of the Administration, the regulatory changes necessary to expand the use of expedited removal have not yet been published in the Federal Register. A change of this nature is likely to require full notice and comment, which will take some time. If the Administration tries to avoid the notice and comment process, that will be likely to give advocates a valid ground for challenging the revised regulation under the Administrative Procedures Act.
I also doubt that expedited removal can successfully address the current Immigration Court backlog, which is, after all, largely the result of incompetent management, poor enforcement choices, and “ADR” by politicos at the DOJ, including particularly in this Administration. Without removing the political influence over the Immigration Courts and placing them in an independent structure that can be professionally administered in an unbiased manner, no “docket reform” is likely to succeed..
Second, nearly all of the 10-11 million individuals currently in the U.S. without documentation have been here more than two years and can prove it. Indeed, the vast majority of the 630,000+ cases pending in Immigration Court have probably been on the docket for more than two years!
Third, like Nolan, I believe that “Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years.” Individuals living in the United States are entitled to constitutional due process under Supreme Court decisions. A fair hearing before an impartial adjudicator normally is a minimum requirement for due process. A DHS Immigration Officer is not an impartial judicial or quasi-judicial adjudicator.
The situations in which the Federal Courts have permitted DHS Immigration Officers to enter final removal orders against individuals who are “in the United States” (as opposed to at the border, in fact or “functionally”) are fairly limited. One is the situation of an individual who was never admitted as a Lawful Permanent Resident and who committed an aggravated felony. This doesn’t apply to most individuals in the U.S. without documentation.
As Nolan points out, the Federal Courts have also approved “expedited removal” under the current regulations which limit applicability to those who have been here fewer than 14 days and are apprehended within 100 miles of the border — in other words, those who have very minimal connection with the U.S. and have not established any type of “de facto” residence here. In making those limited (but still probably wrong from a constitutional standpoint) decisions some courts have indicated that they would have reservations about reaching the same result in the case of someone who had actually been here for a considerable period of time and had established a residence in the United States.
For example, in Castro v. DHS, 835 F.3d 433 (3rd Cir. 2016), cert. denied, a case upholding expedited removal under the current regulations, the court states:
Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.
Here’s a link to the full Castro opinion and my previous blog on the decision:
I predict that, as in other areas, by “pushing the envelope” on the expedited removal statute, the Trump Administration will eventually force the Federal Courts, including the Supreme Court, to find it unconstitutional at least in some applications.
The Administration would be smarter to go about Immigration Court docket reduction by limiting new enforcement actions to recent arrivals and those who have engaged in activities that endanger the public health and safety, similar to what the Obama Administration did. This should be combined with a realistic legalization proposal and return to a robust use of prosecutorial discretion (“PD”) that would remove many of the older, nonprioty cases from the docket.
Eliminating rights, “fudging” due process, and pretending like judicial and quasi-judicial resources are infinitely expandable will not solve the problem in the long run. It’s time for some “smart” immigration enforcement and action to reform the Immigration Courts into an independent court system. But, I’d ever accuse the Trump Administration of being “smart,” particularly in the area of immigration policy.
“The Attorney General’s Jaundiced–and Inaccurate–View of Asylum
by JASON DZUBOW on OCTOBER 17, 2017
In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.
Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.
Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.
While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”
Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”
Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”
First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.
Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.
And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.
None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.
The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.
The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.
Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.
Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.
These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.
I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.”
****************************************
Yup, sure got this one pegged right, Jason! “Maliciousness and incompetence” seem to be two of the key requirements for political appointees in the Trump Administration. I’ve pointed out before that Sessions demonstrates little legal knowledge — his memos, which disingenuously claim to be “law not policy,” are in fact almost pure policy largely devoid of legal reasoning.
Gonzo obviously arrived at the DOJ with a briefcase full of homophobic, xenophobic, White Nationalist memos already “pre-drafted” for him by folks like Stephen Miller, Steve Bannon, the Heritage Foundation, the Family Research Council and restrictionist immigration groups. In addition to lack of legal knowledge and basic honesty (his explanation today to Senator Franken about how his “Russia lie” during confirmation didn’t pass the “straight face” test), Sessions shows no visible signs of compassion, humanity, understanding of other viewpoints, fairness, or objectivity. He consistently smears immigrants (and by extension the entire Hispanic community), denies their achievements and contributions to America, and, like any bully, picks on the already limited rights of the most vulnerable in our community, gays, children, women, and asylum seekers.
Sessions doesn’t understand asylum because he makes no attempt to understand it. He merely approaches it from a position of bias, fear, and loathing.
Mica Rosenberg, Read Levinson, & Ryan McNeill report:
“They fled danger at home to make a high-stakes bet on U.S. immigration courts
Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.
OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.
They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.
Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.
Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.
That’s when their fates diverged.
Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.
The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.
Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.
The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.
SAFE AT HOME: Sandra Gutierrez fled from Honduras with her children after receiving death threats from gangs and was granted asylum by Judge Dalin Holyoak in 2016. She now lives in Oakland, California, where she takes English classes and works as a janitor. REUTERS/Stephen Lam
Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.
Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.
In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.
Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.
Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.
The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.
The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.
About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.
“GROSS DISPARITIES”
Of course, other factors influence outcomes in immigration court. For example, U.S. government policy is more lenient toward people from some countries, less so for others.
Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.
Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.
The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors. The longer a judge has been serving, the more likely that judge is to grant asylum.
“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.
“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”
EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.
Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.
Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.
Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.
The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.
The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.
Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)
In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”
Video: High-stakes game of chance in U.S. immigration courts
CRISIS AT THE BORDER
In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.
Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.
Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.
Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.
The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.
Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.
The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.
“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”
The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.
One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.
“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.
“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”
She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.
“NO POLICE HERE”
Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.
Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”
Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”
The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”
Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.
There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.
After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.
Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.
“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”
Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.
Volunteer lawyers helped the women prepare and submit their applications for asylum.
In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.
“ASYLUM FREE ZONES”
Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.
People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.
The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.
The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”
Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.
The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.
In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.
In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.
From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.
The agency does not identify judges who were the subjects of complaints.
Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”
HEADING NORTH: Many Central Americans who sought safety in the United States during the 2014 migrant crisis caught a ride through Mexico on the freight train nicknamed “The Beast,” shown here chugging through Oaxaca state. REUTERS/Jose de Jesus Cortes
DAY IN COURT
Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.
In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.
Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.
In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.
After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.
Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.
Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness. As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.
Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”
The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.
Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”
“SOMEONE WANTS TO KILL THEM”
Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”
Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.
Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”
Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.
Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.
In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.
Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.
Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.
“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”
Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.
The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.
MEAN STREETS: Gang graffiti covers buildings in Tegucigalpa, the Honduran capital, where rampant violence has prompted thousands of people in recent years to seek asylum in the United States. REUTERS/Jorge Cabrera
Additional reporting by Gustavo Palencia and Kristina Cooke
A not-quite-independent judiciary
U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.
More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.
The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.
The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.
Reade Levinson
Heavy Odds
By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco
Data: Reade Levinson and Ryan McNeill
Graphics: Ashlyn Still
Photo editing: Steve McKinley and Barbara Adhiya
Video: Zachary Goelman
Design: Jeff Magness
Edited by Sue Horton, Janet Roberts and John Blanton”
Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.
Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:
Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”
It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.
“The Department of Justice (DOJ) is reportedly intending to implement numerical quotas on Immigration Judges as a way of evaluating their performance. This move would undermine judicial independence, threaten the integrity of the immigration court system, and cause massive due process violations.
As it currently stands, Immigration Judges are not rated based on the number of cases they complete within a certain time frame. The DOJ – currently in settlement negotiations with the union for immigration judges, the National Association of Immigration Judges (NAIJ) – is now trying to remove those safeguards, declaring a need to accelerate deportations to reduce the court’s case backlog and ensure more individuals are deported.
This move is unprecedented, as immigration judges have been exempt from performance evaluations tied to case completion rates for over two decades. According to the NAIJ, the basis for the exemption was “rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”
If case completion quotas are imposed, Immigration Judges will be pressured to adjudicate cases more quickly, unfairly fast-tracking the deportation of those with valid claims for relief. Asylum seekers may need more time to obtain evidence that will strengthen their case or find an attorney to represent them. Only 37 percent of all immigrants (and merely 14 percent of detained immigrants) are able to secure legal counsel in their removal cases, even though immigrants with attorneys fare much better at every stage of the court process.
If judges feel compelled to dispose of cases quickly decreasing the chances that immigrants will be able to get an attorney, immigrants will pay the price, at incredible risk to their livelihood.
The Justice Department has expressed concern in recent weeks about the enormous backlog of 600,000 cases pending before the immigration courts and may see numerical quotas as an easy fix. Just this week, Attorney General Jeff Sessions called on Congress to tighten up rules for people seeking to “game” the system by exploiting loopholes in a “broken” and extremely backlogged process. However, punishing immigration judges with mandatory quotas is not the solution.
The announcement, however, has sparked condemnation by immigration judges and attorneys alike; in fact, the national IJ Union maintains that such a move means “trying to turn immigration judges into assembly-line workers.”
Tying the number of cases completed to the evaluation of an individual immigration judge’s performance represents the administration’s latest move to accelerate deportations at the expense of due process. Judges may be forced to violate their duty to be fair and impartial in deciding their cases.”
*****************************************
The backlog problems in U.S. Immigration Court have nothing to do with “low productivity” by U.S. Immigration Judges.
It’s a result of a fundamentally flawed system created by Congress, years of inattention and ineffective oversight by Congress, political interference by the DOJ with court dockets and scheduling, years of “ADR,” and glaringly incompetent so-called judicial management by DOJ. There are “too many chefs stirring the pot” and too few “real cooks” out there doing the job.
The DOJ’s inappropriate “Vatican style” bureaucracy has produced a bloated and detached central administrative staff trying unsuccessfully to micromanage a minimalist, starving court system in a manner that keeps enforcement-driven politicos happy and, therefore, their jobs intact.
How could a court system set up in this absurd manner possibly “guarantee fairness and due process for all?” It can’t, and has stopped even pretending to be focused on that overriding mission! And what competence would Jeff Sessions (who was turned down for a Federal judgeship by members of his own party because of his record of bias) and administrators at EOIR HQ in Falls Church, who don’t actually handle Immigration Court dockets on a regular basis, have to establish “quotas” for those who do? No, it’s very obvious that the “quotas” will be directed at only one goal: maximizing removals while minimizing due process
When EOIR was established during the Reagan Administration the DOJ recognized that case completion quotas would interfere with judicial independence. What’s changed in the intervening 34 years?
Two things have changed: 1) the overtly political climate within the DOJ which now sees the Immigration Courts as part of the immigration enforcement apparatus (as it was before EOIR was created); and 2) the huge backlogs resulting from years of ADR, “inbreeding,” and incompetent management by the DOJ. This, in turn, requires the DOJ to find “scapegoats” like Immigration Judges, asylum applicants, unaccompanied children, and private attorneys to shift the blame for their own inappropriate behavior and incompetent administration of the Immigration Courts.
In U.S. Government parlance, there’s a term for that: fraud, waste, and abuse!
The Oct. 13 news article “Citing ‘rampant abuse and fraud,’ Sessions urges tighter asylum rules” quoted Attorney General Jeff Sessions as saying that many asylum claims “lacked merit” and are “simply a ruse to enter the country illegally.” As one of the “dirty immigration lawyers” who has represented hundreds of asylum seekers, I find these claims wildly inaccurate and dangerous. When I ask my clients, the majority of them children, why they came to the came to the United States, they invariably tell me the same thing: I had no choice — I was running for my
life. Indeed, the U.N. High Commissioner for Refugees reported that 58 per cent of Northern Triangle and Mexican children displaced in the United States suffered or faced harms that indicated need for international protection. These children are not gaming the system; they are seeking refuge from rampant gender based violence, MS-13 death threats and child abuse.
While I like to think I am a “smart” attorney, even immigrants represented by the smartest attorneys do not stand a chance in places such as Atlanta, where the asylum grant rate is as low as 2 per cent. Yes, reform is needed, but the only reform we should consider is one that provides more robust protections and recognizes our moral and legal obligation to protect asylum seekers.
Nickole Miller, Baltimore The writer is a lawyer with the Immigrant Rights Clinic at the University of Baltimore School of Law.
*********************************************
Nickole speaks truth. Almost all of the “credible fear” reviews involving folks from the Northern Triangle that I performed as a U.S. Immigration Judge, both at the border and in Arlington, presented plausible claims for at least protection under the Convention Against Torture (“CAT”) if the rules were properly applied (which they often are not in Immigration Court — there is a strong bias against granting even the minimal protection that CAT provides). Many also had plausible gender-based, religious, or political asylum claims if they were allowed to gather the necessary evidence.
Whether ultimately successful or not, these individuals were clearly entitled to their day in court, to be listened to by an unbiased judicial decision maker, to have the reasons for the decision to accept or reject them carefully explained in language they can understand, and to have a right to appeal to a higher authority.
Of course, without a lawyer and some knowledge of the complicated CAT regulations and administrative and Federal Court case-law, a CAT applicant would have about “0 chance” of success. The same is true of asylum which requires proof not only of the possibility of future harm, but also proof of causal relationship to a “protected ground” an arcane concept which most unfamiliar with asylum law cannot grasp.
In other words, our system sends back individuals who have established legitimate fears of death, rape, or torture, just because they fail to show that it is “on account” of race, religion, membership in a particular social group, or political opinion. These concepts are often applied, particularly in Immigration Court where respondents are unrepresented, in the manner “most unfavorable” to the claimant. This is in direct violation of the U.N. guidance which holds that credible asylum seekers should be given “the benefit of the doubt.”
Moreover, assuming that we have the “right” to send good folks, who have done no wrong, back to be harmed in the Northern Triangle, that doesn’t mean that we should be doing so as either a legal or moral matter. That’s what devices like Temporary Protected Status (“TPS”), Deferred Enforced Departure (“DED”), and just “plain old Prosecutorial Discretion (“PD”) are for: to save lives and maintain the status quo while deferring the more difficult decisions on permanent protection until later. Obviously, this would also allow at least minimal protections to be granted by DHS outside the Immigration Court system, thus relieving the courts of thousands of cases, but without endangering lives, legal rights, or due process.
I agree with Nickole that the “asylum reform” needed is exactly the opposite of that being proposed by restrictionist opportunists like Trump and Sessions. The first step would be insuring that individuals seeking protections in Immigration Court have a right to a hearing before a real, impartial judicial official who will apply the law fairly and impartially, and who does not work for the Executive Branch and therefore is more likely to be free from the type of anti-asylum and anti-migrant bias overtly demonstrated by Sessions and other enforcement officials.
“The Trump administration is taking steps to impose “numeric performance standards” on federal immigration judges, drawing a sharp rebuke from judges who say production quotas or similar measures will threaten judicial independence, as well as their ability to decide life-or-death deportation cases.
The White House says it aims to reduce an “enormous” backlog of 600,000 cases, triple the number in 2009, that cripples its ability to deport immigrants as President Trump mandated in January.
The National Association of Immigration Judges called the move unprecedented and says it will be the “death knell for judicial independence” in courts where immigrants such as political dissidents, women fleeing violence and children plead their cases to stay in the United States.
“That is a huge, huge, huge encroachment on judicial independence,” said Dana Leigh Marks, spokeswoman and former president of the association and a judge for more than 30 years. “It’s trying to turn immigration judges into assembly-line workers.”
The White House tucked its proposal — a six-word statement saying it wants to “establish performance metrics for immigration judges” — into a broader package of immigration reforms it rolled out Sunday night.
But other documents obtained by The Washington Post show that the Justice Department “intends to implement numeric performance standards to evaluate Judge performance.”
The Justice Department, which runs the courts through the Executive Office for Immigration Review, declined to comment or otherwise provide details about the numeric standards.
The Justice Department has expressed concern about the backlog and discouraged judges from letting cases drag on too long, though it has insisted that they decide the cases fairly and follow due process. On Thursday, Attorney General Jeff Sessions expressed concern that false asylum cases are clogging up the courts.
The judges’ union says its current contract language prevents the government from rating them based on the number of cases they complete or the time it takes to decide them.
But now, they say, the department is trying to rescind that language, and advocates say it could violate a federal regulation that requires judges to “exercise their independent judgment and discretion” when deciding cases.
Advocates and immigration lawyers say imposing numerical expectations on judges unfairly faults them for the massive backlog. Successive administrations have expanded immigration enforcement without giving the courts enough money or judges to decide cases in a timely way, they say. An average case for a non-detained immigrant can drag on for more than two years, though some last much longer.
“Immigration judges should have one goal and that goal should be the fair adjudication of cases,” said Heidi Altman, director of policy at the National Immigrant Justice Center, a nonprofit that provides legal services and advocacy to immigrants nationwide. “That’s the only metric that should count.”
Immigration lawyers say the proposed standards risk adding to disadvantages immigrants already face in immigration courts. Most defendants do not speak English as their first language if at all, are not entitled to lawyers at the government’s expense, and thousands end up trying to defend themselves.
Often immigrants are jailed and given hearings in remote locations, such as rural Georgia or Upstate New York, which makes it difficult to gather records and witnesses needed to bring a case.
“People’s lives are at risk in immigration court cases, and to force judges to complete cases under a rapid time frame is going to undermine the ability of those judges to make careful, well thought-out decisions,” said Gregory Chen, director of government relations for the American Immigration Lawyers Association, which has 15,000 members.
Traditional federal judges are not subject to quotas.
The rare public dispute between the immigration judges and the Justice Department comes as the Trump administration is demanding a commitment to increased enforcement and other immigration restrictions in exchange for legal status for 690,000 young undocumented immigrants who, until recently, were protected from deportation under an Obama-era program. Sessions announced the end of the program last month, and the young immigrants will start to lose their work permits and other protections in March.
In January, Trump issued a slate of executive orders that sought to crack down on immigration. He revoked President Barack Obama’s limits on enforcement and effectively exposed all 11 million undocumented immigrants in the United States to arrest.
On Sunday, Trump also called for more immigration-enforcement lawyers and more detention beds, which would further increase the caseloads of the courts.
Politics newsletter
The big stories and commentary shaping the day.
He is also planning to seek congressional funding for an additional 370 immigration judges, which would more than double the current number.
Immigration arrests are up more than 40 percent since Trump took office, and deportation orders are also rising. From Feb. 1 to August 31, judges have issued 88,383 rulings, and in the majority of cases — 69,160 — immigrants were deported or ordered to voluntarily leave the country, a 36 percent increase over the corresponding period in 2016.
The immigration courts have clamored for greater independence from the Justice Department for years and also have sought greater control over their budget. They have long complained about a lack of funding, burnout rates that rival that of prison wardens, and caseloads exceeding 2,000 each. Some judges are scheduling cases into 2022.
On Sunday, Sessions — who appoints the immigration judges and is the court’s highest authority — called the White House’s broad immigration proposals “reasonable.”
“If followed, it will produce an immigration system with integrity and one in which we can take pride,” he said.”
Will the stunningly xenophobic “Gonzo Apocalypto” get away with his lawless plan to strip migrants of the last vestiges of their already restricted Constitutional rights to due process? Or, will the Article III Courts step in, assert themselves, insist on due process and fair and impartial adjudication in Immigration Court, and throw the already staggering Immigration Court System into complete collapse, thereby stopping the “Removal Railway?”
The showdown is coming. I think the eventual outcome is “too close to call.” So far, Sessions is well on his way to co-opting the Immigration Court as just another “whistle stop on the Removal Railway!”
The current backlog has multiple causes: 1) failure of Congress and the DOJ to properly fund and staff the U.S. Immigration Courts; 2) poor enforcement strategies by DHS resulting in too many “low priority” cases on the dockets; 3) often politicized, always changing, sometimes conflicting “case priorities and goals” established by DOJ and EOIR; 4) lack of authority for Immigration Judges to control their own dockets; 5) outdated technology resulting in a “paper heavy” system where documents are often misfiled or missing from the record when needed by the Judges; and 6) “Aimless Docket Reshuffling” caused by moving cases around to fit DHS Enforcement priorities and ill-conceived and poorly planned details of Immigration Judges away from their normal dockets. “Productivity,” which consistently far exceeds the “optimal” 500 completions per Judge annually (currently approximately 770 per Judge) is not one of the primary factors causing the backlog.
Overall, the current backlog is the product of mismanagement of the Immigration Courts by the DOJ spanning multiple Administrations. No wonder the politos at the Sessions DOJ are trying to shift blame to the Immigration Judges, hapless migrants struggling to achieve justice in an “intentionally user unfriendly system,” and stressed out private attorneys, many serving pro bono or for minimal compensation. How would YOU like to be a migrant fighting for your life in a so-called “court system” beholden to Jeff Sessions?
We’re starting to look pretty “Third World.” Sessions and the rest of the “Trump Gang” operate much like corrupt Government officials in “Third World” countries where the rulers control the courts, manipulation of the justice system for political ends is SOP, and claims to aspire to “fairness” ring hollow.
“In Texas, Florida, Puerto Rico and the Virgin Islands, mammoth hurricanes have left behind a colossal amount of work. The cleanup and reconstruction efforts are going to take years. That means a severe demand for salvage and demolition crews, roofers, carpenters, IMMIGRANT workers at a makeshift camp in Mississippi following Hurricane Katrina in 2005. (Marcio Jose Sanchez Associated Press) drywall installers, painters, plumbers and workers in all manner of other trades and skills. And if recent history tells us anything, much of this demand will be met by immigrants — migrant laborers, many of them highly skilled, and many of them lacking legal status.
. . . .
This wasn’t a problem only for immigrants. As long as labor was exploitable and cheap, American-born workers and local businesses suffered too, as conditions and wages slid toward rock bottom.
If we had a federal government sensitive to these issues, the solution would be a moratorium on immigration enforcement in disaster zones. This would ensure that the rebuilders could keep working, and that those depending on them could return home as soon as possible. Given the Trump administration’s relentless attacks on immigrants, there’s little hope for this sensible fix. In the absence of such a moratorium, governors and mayors should insist that federal labor laws be enforced in these areas while reconstruction is underway. Labor laws guarantee workers payment, safe working conditions and the ability to report mistreatment, among other things.
When workers are vulnerable and afraid, aware that their immigration status can be used against them, they are easy targets for abuse. They know that one complaint could mean a quick call to immigration. Their fear of being deported and losing everything shackles them to bad employers.
. . . .
Diaz and the other workers organized, protesting the discrimination and illegal treatment. In retaliation, the employer evicted them without compensation. When they demanded their pay, the employer called local police and Immigration and Customs Enforcement, which arrested the workers immediately. After spending 78 days in jail, Diaz convinced the district attorney that the workers had been the victim of employer retaliation. The D.A. withdrew the charges, but ICE still detained the workers and sought to deport them.
These abuses, and the exploitation that took place after Katrina, occurred during the George W. Bush administration, which supported comprehensive immigration reform. The climate of fear is far worse today, with agents and officers from ICE and the Border Patrol running roughshod over immigrant communities, goaded by President Trump’s toxic rhetoric.
Nevertheless, immigrants will still risk their lives to come here. Their need is that dire — and our demand is that urgent. The credit rating company Moody’s estimates that the damage from Hurricanes Harvey and Irma could total $150 billion to $200 billion — considerably more than the $108 billion or so in damage left by Katrina. Irma destroyed an estimated 25% of homes in the Florida Keys. In Harris County, Texas, which includes Houston, more than 136,000 homes and other structures were flooded by Harvey. In the aftermath of these disasters, there has been talk of rebuilding homes and cities with greater attention to long-term sustainability and resilience.
Some have even called for a “green New Deal” that marries these goals with stronger social safety nets for storm victims. This worthy vision can and should take into account the people who are doing the rebuilding, making sure they are safe, secure and paid a fair wage. And that means starting with meaningful protections for the immigrant workers who help storm victims return home.
Saket Soni is executive director of the New Orleans Workers’ Center for Racial Justice and the National Guestworker Alliance
*****************************************
Read the entire report at the above link.
Just another example of how White Nationalist inspired “Gonzo Enforcement” is not only wasteful, impractical, and inhumane, but also just plain dumb! The Trump Administration degrades America and our values with each day it is in office. When your “worldview” is driven by prejudice, bias, and political pandering, you’re bound to make lots of bad decisions!
“Every night that the girls get home from soccer practice, do homework and eat dinner may be the last time they get to do this with their mom.
They all know this.
So every moment this week is being savored and remembered. They take extra walks together. Catia Paz’s husband cooks all of her favorite dinners. And she always agrees to read one more story to her daughters, 6 and 8, at bedtime.
The worst part? None of this has to happen.
Paz, 32, is facing a separation of at least 10 years from her husband and children because of political whim. And if you’ve recently supported the crackdown on immigration, please read on to see what that looks like in this small living room in Northern Virginia.
Paz has until Friday to self-deport.
Not because she committed a crime.
She’s a high school graduate (3.1 GPA) and an active church member. She’s worked at the same Nordstrom for the past 11 years. She’s on the snack rotation of her daughter’s soccer team. She could be any suburban mom.
But because she was 17 when she escaped her war-torn home town in El Salvador — not the cutoff age of 16 — even a miracle deal on the “dreamers,” those covered by the controversial Deferred Action for Childhood Arrivals program, wouldn’t help her.
The rest of her sprawling extended family — all 65 of them — have legal status.
“I know they want the bad hombres out,” Paz said, sitting in the living room of the tiny home in Woodbridge, Va., she and her husband bought last year. “I want them out, too. But I’m not one of them.”
She knows the arguments, hears the hatred. People saying they support immigration but only legal immigration.
“For their families, when they came, there weren’t all these papers. It wasn’t so hard,” she said. “It is all different now.”
Paz crossed the border illegally 15 years ago to escape the violence in El Salvador and join her parents, who were already in the United States. The immigration system learned about her presence in the country when her father applied for permanent residence under an act welcoming refugees from Central American violence. Instead, the parents got temporary protective status. Her sister got DACA protection because she was 16 when she came, but Catia got nothing; she’d arrived too late to qualify.
In 2011, an immigration judge ordered her removed from the country. She fought to remain, and Immigration and Customs Enforcement granted her multiple stays from 2012 to 2015, an agency spokeswoman said.
She was enrolled in ICE’s alternatives-to-detention program, but in September, when she checked in, she was given an ankle monitor and a deadline — self-deport by Oct. 13.
If she leaves, she can’t return for 10 years. So that means if her daughters, Genesis and Alison, stayed they would be 18 and 16 before they could see their mother again in the country of their birth.
Paz could just stay and hope something will work out, that the tide of popular opinion will turn, that a last-minute appeal by her lawyer will come through, that lawmakers, who are nearly all descendants of immigrants, will belatedly recognize what they are doing to families such as hers.
“But then, I’d always be scared,” she said. “They could grab me and deport me anytime. I don’t want my kids to see that. And if I stayed, I would be a criminal.”
“I’m not a criminal,” she said. “I want to keep a clean record.”
One of Paz’s friends in a similar situation decided to stay. She simply couldn’t leave her small children, so she stayed past her self-deportation date, hoping to go undetected.
“But a police officer pulled her over one day. She was taking her kids to school,” Paz said. “He said her back light wasn’t working.”
The woman was sent to a detention facility in another state, then immediately deported. She didn’t get to say goodbye to her kids.
“She finally had the kids sent to her,” Paz said. “But that’s not good, either. They are American citizens who now can’t even go to a good school.”
So that’s her dilemma. Does she hunker down and try to eke out as many days with her kids as possible, knowing she can be arrested and deported any minute?
Does she take them with her to a war-torn town, costing them the education and opportunities they’d have in their own country, in exchange for a childhood with their mother?
Or should she just keep her clean record, kiss her husband and kids goodbye and get on a plane Friday?
This is what she and her husband, German, talk about every night, after the girls are in bed.
He works construction, and he can get off early and pick them up every day after school, he offers. He already does the cooking, so that part won’t be hard. But, but. It’s all so hard.
Does any of this sound like our country to you?
I left their home the other day sad, but mostly furious. How can we tear apart good families like this one?
Local Headlines newsletter
Daily headlines about the Washington region.
Catia Paz is not alone. There are 4 million parents like her who would have had a temporary, three-year reprieve with President Barack Obama’s 2014 Deferred Action for Parents of Americans executive order.
“Felons, not families,” Obama said, explaining who would be deported and protected under his order. “Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.”
But no. It was challenged at the Supreme Court, and, in June, the Trump administration rescinded the executive order.
Now Paz must decide: Be a mother or a criminal? And we must decide: Who are we?”
**********************************************
Cowardly cruelty masquerading as “macho law enforcement” at DHS. This isn’t law enforcement. Every decent American should be ashamed both of our current broken immigration system and what DHS has become under Trump & Sessions. Every day of the Trump Administration diminishes America. By the time he and his cronies are done, our national conscience will be so small “you could drown it in a teacup.”
In encourage you to go over to The Hill at the above link and read Nolan’s complete article. As always, whether you agree with Nolan or not, his articles are always thought-provoking and timely. Nolan is definitely a “player” in the immigration dialogue! (And, frankly, by going over to The Hill, Nolan gets a few more “hits” which give him a few more “hard-earned nickels” in his pockets. Gotta help out my fellow retirees!)
I can agree with Nolan’s bottom line:
“It would be better to help undocumented aliens by working on comprehensive immigration reform legislation that meets essential political needs of both parties.”
The challenge will be figuring out what those points might be. So far, the GOP “Wish List” is basically an “incendiary White Nationalist screed” drafted by notorious racist xenophobe Stephen Miller (probably with backing from Sessions and certainly incorporating parts of Steve Bannon’s alt-right White Nationalist world view) that contains virtually nothing that any Democrat, or indeed any decent person, could agree with. Indeed, the very involvement of Miller in the legislative process is a “gut punch” to Democrats and whatever “moderate GOP” legislators remain.
What are some “smart enforcement” moves that Democrats could agree with: more funding for DHS/ICE technology; improvements in hiring and training for DHS enforcement personnel; U.S. Immigration Court reforms; more attorneys and support (including paralegal support) for the ICE Legal Program; more funding for “Know Your Rights” presentations in Detention Centers.
But more agents for “gonzo enforcement,” more money for immigration prisons (a/k/a the “American Gulag”), and, most disgustingly, picking on and targeting scared, vulnerable kids seeking protection from harm in Central America by stripping them of their already meager due process protections: NO WAY!
Although “The Wall” is a money wasting folly with lots of negative racial and foreign policy implications, it probably comes down to a “victory” that Democrats could give to Trump and the GOP without actually hurting any human beings, violating any overriding principles of human rights law, or diminishing Constitutional Due process. It also inflicts less long-term damage on America than a racially-oriented “point system” or a totally disastrous and wrong-headed decrease in legal immigration when the country needs the total opposite, a significant increase in legal immigration opportunities, including those for so-called “unskilled labor.”
While this GOP Congress will never agree to such an increase — and therefore workable “Immigration Reform” will continue to elude them — the Democrats need to “hold the line” at current levels until such time as Americans can use the ballot box to achieve a Congress more cognizant of the actual long-term needs of the majority of Americans.
“The woman on the other end of the line said her husband had been beating her for years, even while she was pregnant.
She was in danger and wanted help, but was in the country illegally — and was convinced she would be deported if she called authorities. Fearful her husband would gain custody of her children, she wanted nothing to do with the legal system.
It is a story that Jocelyn Maya, program supervisor at the domestic violence shelter Su Casa in Long Beach, has heard often this year.
In the first six months of 2017, reports of domestic violence have declined among Latino residents in some of California’s largest cities, a retreat that crisis professionals say is driven by a fear that interacting with police or entering a courthouse could make immigrants easy targets for deportation.
President Trump’s aggressive stance on illegal immigration, executive orders greatly expanding the number of people who can be targeted for deportation and news reports of U.S. Customs and Immigration Enforcement agents making arrests at courthouses have contributed to the downturn, according to civil liberties and immigrant rights advocates.
In Los Angeles, Latinos reported 3.5% fewer instances of spousal abuse in the first six months of the year compared with 2016, while reporting among non-Latino victims was virtually unchanged, records show. That pattern extends beyond Los Angeles to cities such as San Francisco and San Diego, which recorded even steeper declines of 18% and 13%, respectively.
Domestic violence is traditionally an under-reported crime. Some police officials and advocates now say immigrants without legal status also may become targets for other crimes because of their reluctance to contact law enforcement.
The Long Beach abuse victim, fearing she had no other recourse, sent her oldest children back to Mexico to live with relatives.
“We’re supposed to be that assurance that they don’t have. That safety net,” Maya said. “But it’s getting harder for us to have a positive word for them and say: ‘It’s going to be OK. You can go into a courtroom. You can call the police.’ ”
Los Angeles County sheriff’s Deputy Marino Gonzalez said he addresses such apprehension frequently as he patrols the streets of East L.A. — even though his department doesn’t question people about their immigration status.
“They’re afraid of us. And the reason they’re afraid of us is because they think we’re going to deport them. They don’t know that we don’t deport them; we don’t ask for their immigration status,” he said. “They just gotta go based on what they see on social media and what they hear from other people.”
On a warm afternoon, Gonzalez pulled his cruiser to a stop near a row of apartments in Cudahy, ahead of a community meeting in a predominantly Spanish-speaking neighborhood. There was a lone woman waiting for Gonzalez and a few other deputies, offering lemonade to passersby.
Gonzalez spoke calmly to the assembly of several dozen people sipping from Styrofoam cups.
“We’re not here to ask you where you’re from,” he said in Spanish, drawing thankful nods.
Gonzalez, who came to the U.S. from Mexico as a child, said he knows why people are scared, but hopes face-to-face conversations will persuade more victims to come forward.
“The community here, they don’t know, and they won’t know, unless we reach out,” he said.
ICE officials also said they do not target crime victims for deportation and, in fact, often extend visas to those who report violent crime and sexual abuse.
Officials in the agency’s Los Angeles office declined to be interviewed. ICE issued a statement dismissing links between immigration enforcement and a decline in crime reporting among immigrants as “speculative and irresponsible.”
The drop in reporting could result from an overall decrease in domestic violence crimes, the agency said. But police statistics reviewed by The Times suggest that statement is inaccurate. The decline in domestic violence reports among Latinos in several cities is far steeper than overall declines in reporting of those crimes.
In Los Angeles and San Diego, reporting of domestic violence crimes remained unchanged among non-Latinos. The decline among Latinos in San Diego was more than double the overall citywide decrease, records show. In San Francisco, the reporting decline among Latinos was nearly triple the citywide decrease.
The pattern extends outside California.
In April, Houston police Chief Art Acevedo said the number of Latino victims reporting sexual assault had dropped 42% in his city. In Denver, at least nine women abandoned pursuit of restraining orders against their abusers after immigration enforcement agents were filmed making an arrest in a city courthouse earlier this year, according to City Atty. Kristi Bronson.
Claude Arnold, who oversaw ICE operations in Southern California from 2010 to 2015, said misconceptions about the agency may be driving the downswing. Crime victims are far more likely to receive a visa application than a removal order by reporting an attack, he said.
“ICE still has a policy that we don’t pursue removal proceedings against victims or witnesses of crime, and I haven’t seen any documented instances where that actually happened,” he said. “To a great degree, we facilitate those people having legal status in the U.S.”
Nationwide, the number of arrests made by ICE agents for violations of immigration law surged by 37% in the first half of 2017. In Southern California, those arrests increased by 4.5%.
Arnold said some immigrants’ rights activists have helped facilitate a climate of fear by spreading inaccurate information about ICE sweeps that either didn’t happen, or were in line with the Obama administration’s policies.
But professionals who deal with domestic violence victims say the perception of hardcore enforcement tactics under Trump has led to widespread panic.
Adam Dodge, legal director at an Orange County domestic violence shelter called Laura’s House, said that before February, nearly half of the center’s client base were immigrants in the country illegally. That month, ICE agents in Texas entered a courthouse to arrest a woman without legal status who was seeking a restraining order against an abuser.
“We went from half our clients being undocumented, to zero undocumented clients,” he said.
A video recording earlier this year of a father being arrested by ICE agents moments after dropping his daughter off at a Lincoln Heights school had a similar effect on abuse victims in neighboring Boyle Heights, said Rebeca Melendez, director of wellness programs for the East L.A. Women’s Center.
“They instilled the ultimate fear into our community,” she said. “They know they can trust us, but they are not trusting very many people past us.”
Even when victims come forward, defense attorneys sometimes use the specter of ICE as a weapon against them, to the frustration of prosecutors.
In the Bay Area, a Daly City man was facing battery charges earlier this year after flashing a knife and striking the mother of his girlfriend, according to court records. The man’s defense attorney raised the fact that the victim was in the country illegally during pretrial hearings, although a judge eventually ruled that evidence was irrelevant and inadmissible at trial, records show.
The case ended in a hung jury. But when prosecutors sought a retrial, the victim said she would not cooperate, in part, because her immigration status was raised during the trial, said Max Szabo, a spokesman for the San Francisco district attorney’s office.
San Francisco Dist. Atty. George Gascon said the case was one of several where his prosecutors felt defense attorneys sought to leverage heightened fears of deportation against victims. He believes that tactic, combined with ICE’s expanded priorities and presence in courthouses, is driving down domestic violence reporting among immigrants in the city’s sprawling Latino and Asian communities.
Gascon described the situation as a “replay” of the fear he saw in the immigrant community while he was the police chief in Mesa, Ariz., during notorious Maricopa County Sheriff Joe Arpaio’s crusade against people without legal status, which led to accusations of racial profiling.
Stephanie Penrod, managing attorney for the Family Violence Law Center in Oakland, also said the number of immigrants without legal status willing to seek aid from law enforcement has dwindled.
Abusers frequently will threaten to call immigration enforcement agents on their victims, a threat Penrod believes has more teeth now given ICE’s increased presence in courthouses.
“The biggest difference for us now is those threats are legitimate,” she said. “Previously we used to advise them we couldn’t prevent an abuser from calling ICE, but that it was unlikely ICE would do anything.”
If the problem persists, Gascon fears the consequences could be deadly.
“The level of violence increases,” he said. “It could, in some cases, lead to severe injury or homicide.”
***************************************
ICE, of course, denies this is happening. But, as shown by this article, the denials simply are refuted by the facts (as shown in the above charts) and by the officers and social services agencies who actually deal with the community. We simply can’t trust any statement on immigration emanating from the Trump Administration. They lack credibility. Something that is going to be a long term problem for ICE once immigration enforcement is finally “normalized.” Once lost, trust is unlikely to be regained any time soon. “Gonzo” enforcement does long-term irreparable damage. That’s why so many communities are resisting the Trump Administration program.
“Washington (CNN)Democrats are raising alarms that more than a quarter of eligible recipients under the Deferred Action for Childhood Arrivals program have not yet filed to renew their status ahead of Thursday’s deadline.
According to data provided Wednesday by a senior Democratic congressional staffer and confirmed to CNN by US Citizenship and Immigration Services, 42,669 individuals nationwide — or 27.7% of the 154,234 people eligible — had not submitted their applications. That was slightly down from roughly 48,000 that the Department of Homeland Security said Tuesday hadn’t yet submitted.
When President Donald Trump announced the end of the program, known as DACA, a month ago, he put in place a six-month delay on expiring protections by allowing any recipient whose DACA expires by March 5 until Thursday to apply for a two-year renewal. Otherwise, the program that protects young undocumented immigrants brought to the US as children from deportation will begin to end on March 5, as the two-year permits of nearly 700,000 active protectees begin to run out.
Democrats have repeatedly implored DHS to extend the deadline, saying one month to gather paperwork — and the roughly $500 application fee — is not long enough for those affected.
Trump sketches out DACA deal with Republicans at White House dinner
They’ve been especially critical of DHS for not making special consideration for DACA recipients in states hit by hurricanes Irma and Harvey, though DHS did announce Tuesday it would make case-by-case decisions for recipients in Puerto Rico and the Virgin Islands affected by Maria.
The frustration bubbled up at a Senate hearing Tuesday, where Illinois Democratic Sen. Dick Durbin cited considerations the Internal Revenue Service was making for Texas, Louisiana and Florida residents.
“May I implore you, implore you, to do the same thing at DHS that our own Internal Revenue Service is doing,” Durbin said to the DHS officials testifying. “If it’s good enough for our tax collectors to have a heart, isn’t it good enough for DHS to have a heart?”
Senators’ frustration with Trump on DACA bubbles up at hearing
According to the Wednesday data, more than 2,600 of eligible recipients in Texas had yet to submit renewals, 28% of the total eligible in that state. In Florida, more than 2,000, or 35% of those eligible, had yet to renew. In the US islands hit by Irma, 16 of the 37 eligible hadn’t yet renewed.
Democrats have also been frustrated with DHS over its notification process, saying without individual notifications to those eligible for renewal, the administration should extend the deadline.
“We are very concerned that because DACA recipients were not individually notified of their eligibility for renewal, tens of thousands of DACA recipients could lose their work authorization and DACA status protections,” Congressional Hispanic Caucus leaders wrote in a letter to acting DHS Secretary Elaine Duke on Tuesday repeating a request to meet about extending the deadline.
Trump said he was putting in place the six-month window to give Congress a sense of urgency to put the Obama administration executive action into law.
But despite Tuesday’s hearing, multiple working groups and meetings the President has had with lawmakers at the White House, little substantive progress has been made.
The fault lines have remained consistent. Democrats support the bipartisan Dream Act that would protect eligible young immigrants who arrived as children and put them on a path to citizenship. They say they could accept border security as a compromise with it, but insist they will not vote for anything that could put the families and friends of those protected at greater risk of deportation.
DACA deal: A list of just some of the things that could go wrong
But Republicans are also insistent that any DACA deal must include border security and likely immigration enforcement measures, and the more conservative members of the party are suggesting policies — like mandatory worker verification, cuts to the legal immigration system and expanded deportation authority — that would be almost impossible to get Democrats to agree to.
Any solution would likely have to include Democrats, as they’ll be needed for passage in the Senate and to make up for Republicans in the House who would never vote for any DACA deal. But House Speaker Paul Ryan has also pledged not to move any bill that doesn’t get the votes of a majority of Republicans, limiting the options.
Durbin was joined on Tuesday at the hearing by Sen. Thom Tillis, R-North Carolina, in urging lawmakers and the White House to not try to concoct too big a compromise. Tillis has sponsored legislation similar to Durbin’s Dream Act that he bills as a conservative DACA solution.
Responding to a wish list articulated by a DHS senior staff member testifying about the White House’s aims, Tillis grew frustrated and urged members to focus on a narrow deal as a starting point.
“It reads like a laundry list for comprehensive immigration reform, and if Congress has proven an extraordinary ability to do anything, it’s to fail at comprehensive immigration reform,” Tillis said.”
******************************************
Bad news on all fronts for Dreamers, and for America. Over at the White House, notorious White Nationalist xenophobe racist and Sessions confidante Stephen Miller is plotting to destroy any chance of compromise legislation to aid Dreamers by attaching reductions in legal Immigraton and other parts of the White Nationalist agenda to the bill.
Politico reports:
“The White House is finalizing a plan to demand hard-line immigration reforms in exchange for supporting a fix on the DACA program, according to three people familiar with the talks — an approach that risks alienating Democrats and even many Republicans, potentially tanking any deal.
The White House proposal is being crafted by Stephen Miller, the administration’s top immigration adviser, and includes cutting legal immigration by half over the next decade, an idea that’s already been panned by lawmakers in both parties.
The principles would likely be a political non-starter for Democrats and infuriate Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi, who have negotiated with President Donald Trump on immigration and left a White House meeting last month indicating a solution was near. They could also divide Republicans, many of whom oppose cutting legal immigration.
Miller was upset after Trump’s dinner last month with Schumer and Pelosi and has been working since to bring the president back to the tougher stance he took during his campaign.
Miller has begun talking with Hill aides and White House officials about the principles in recent days. The administration is expected to send its immigration wish-list to Congress in the coming days, perhaps as soon as this weekend, said the people familiar with the plan, who include two administration officials. They requested anonymity to discuss the ongoing negotiations.
A White House official cautioned that the plans have not been finalized and could still change. Miller didn’t respond to a request for comment.
Unless they change dramatically from their current form, the immigration principles could short-circuit congressional negotiations aimed at finding a fix to DACA, or the Deferred Action for Childhood Arrivals program — the Obama-era initiative that grants work permits to undocumented immigrants who arrived in the United States as minors.
“Handing Stephen Miller the pen on any DACA deal after the revolt from their base is the quickest way to blow it up,” said a senior Democratic Senate aide.
Lawmakers on both sides of the Capitol panned an earlier White House immigration proposal spearheaded by Miller, the RAISE Act, when the White House rolled it out in August. Republicans including Sens. Lindsey Graham of South Carolina and Ron Johnson .)of Wisconsin all but declared the proposal dead on arrival.
Trump announced last month that he would end the DACA program, but he said he’d give Congress six months to come up with a legislative solution.
Despite Trump’s efforts to make nice with Schumer and Pelosi, Republican lawmakers signaled this week that the president is prepared to demand tough immigration measures as part of the negotiations.
In addition to provisions in the RAISE Act, the White House’s immigration principles also include parts of the Davis-Oliver Act, including measures that would give state and local law enforcement power to enforce immigration laws, allow states to write their own immigration laws and expand criminal penalties for entering the U.S. illegally.
The principles would also incorporate a provision from the Davis-Oliver Act that puts the onus on Congress to designate Temporary Protected Status, which allows immigrants to temporarily stay in the United States because they are unable to return to their home country as a result of a natural disaster or other dangerous circumstances.
The Davis-Oliver Act gives Congress 90 days to approve a measure extending TPS protections to a foreign state. If Congress does not act, the designation will be terminated. Lawmakers have raised concerns that Congress will be unable to agree on the designations, effectively killing the program.
In addition, the principles call for billions of dollars in border security, as well as money for detention beds and more immigration judges, according to the people familiar with them. Republicans are likely to support those moves.”
************************************
Miller’s proposals are right out of the White Nationalist restrictionist playbook. It will be a non-starter for Democrats. Additionally, no decent human being of any party should ever be associated, in any way, with any idea emanating from the arrogant racist Miller.
If Miller is involved, Dreamer relief is DOA. That means that Dreamers are likely to be left to fight out their future one case at a time in the Federal Courts and in the Immigraton Courts. Given the existing 630,000+ case backlog in the U.S. Imigration Courts, and the relatively cumbersome process for restoring “Dreamer” cases to the Immigraton Court Docket, not many will actually be removed from the United States before 2000.
I also think that Dreamers will have a reasonable chance of succeeding in the Article III Courts in barring DHS from relying on any evidence furnished as part of the DACA application and interview process as evidence of removability. That’s likely to throw a further monkey wrench into any enforcement initiative aimed at Dreamers.
So, the best strategy might prove to be working hard to remove the Trump regime and enough White Nationalist GOPers through the ballot box to create a climate for reasonable immigraton reform in 2021.
Sad, but probably true. A country that mistreats its youth in this manner can expect “very bad things” to happen in the future.
The ACLU bloghas an interesting post on Jennings v. Rodriguez, the immigrant detention case argued in the Supreme Court today.
How A Bond Hearing Saved Me From Deportation By Mark Hwang
Today the Supreme Court will hear Jennings v. Rodriguez, a case that will decide the fate of thousands of men and women locked up in immigration prisons across the country. The federal government is challenging a 2015 Ninth Circuit ruling, in which the American Civil Liberties Union secured the right to a bond hearing for people in deportation proceedings after six months of detention.
Bond hearings allow people to go before a judge so that he or she can decide if imprisonment is necessary, weighing factors like public safety and flight risk. It’s basic due process. Bond hearings are a vital check on our country’s rapidly-expanding immigration system. I’ve seen their power firsthand, because not too long ago, I was one of the people locked up.
In February 2013, I was driving with my one-year-old son when we were stopped by an immigration officer. He said that I hadn’t used my turn signal when changing lanes and asked to see my identification. When he came back to the car, he asked if I had ever been convicted of a crime.
I answered truthfully. More than a decade ago, when I was in my early 20s, I was convicted of marijuana possession with intent to sell. I had served a short sentence and had remained out of trouble since. Still the officers said that I needed to go with them and that I would have to explain “my situation” to a judge. I was shackled and put in the back of the car while one of the officers got into my car to drive my son home.
I thought there had to be some kind of mistake. Around two weeks earlier, my wife Sarah had given birth to our identical twin daughters. My life at the time was full, growing, and completely rooted in the United States.
I was processed in Los Angeles and then transferred to the Adelanto Detention Facility in Adelanto, California, where I learned that the U.S. government wanted to deport me even though I was a legal permanent resident. My family moved to the United States from South Korea when I was six years old. I grew up in Buena Park, California and went to local public schools. For college, I studied information technology in Newport Beach, where I met Sarah through mutual friends. We got married, started a family, and ran a shipping and logistics business together. I went from having a routine day to being locked up, fighting for my right to stay in the country that I knew as mine, within a matter of hours.
When I was booked into custody, an officer told me that my drug conviction meant that my detention was “mandatory.” Nobody had ever told me that pleading guilty on a drug charge could have implications for my immigration status. I petitioned a court to vacate the marijuana conviction, but because I was locked up, I couldn’t appear at the hearing. The request was denied and I had no idea for how long I would be locked up, leaving my wife to run our business and care for our children alone. When my family came to visit me in detention, I wasn’t allowed any physical contact, so I couldn’t hold my newborn daughters or my son.
I was at a breaking point, and nearly ready to sign deportation papers when – after being locked up for six months — I finally received a bond hearing as result of the court decision in Jennings. I was granted bond and released, allowing me to return to my family. With the help of an attorney, I was able to vacate my marijuana conviction because I had never been apprised of the immigration consequences to pleading guilty. As a result, ICE no longer had a reason to try to deport me.
Before Jennings, people fighting deportation could be detained indefinitely while they defend their rights to remain in the United States. This includes lawful permanent residents like me; asylum seekers and survivors of torture; the parents of young children who are citizens; and even citizens who are wrongly classified as immigrants. Many go on to win their deportation cases, which means their detention was completely unnecessary.
Even worse, a lot of people simply give up their cases because they can’t endure the hardship of being locked up. Detention almost broke me and I could have lost my life in the only country I’ve known since I was six years old. Instead, I’m here to share my story. Through this experience, I found my faith and am now deeply involved in my church and community. My son is six years old and my twins are five. My wife and I still run our business and I thank her all the time for being a pillar of strength while I was locked up. I hope the justices make the right choice — it can make all the difference.
KJ
*****************************************
We’re in “Catch 22” territory here! Thisrespondent was locked up by DHS in “mandatory detention” because he was wrongfully convicted in state court. But, he couldn’t successfully challenge his state court conviction because he was locked up by DHS. Once he got a bond hearing, after six months, he was released, his conviction was vacated, and he and his family could go back to living their lives and being productive Americans.
But, without the intervention of the 9th Circuit in Jennings, this individual likely would have been coerced into “voluntarily” relinquishing his Constitutional rights and accepting removal to a country where he hadn’t been since he was six years old. I can guarantee you that in jurisdictions where the Article III Courts have not intervened in a manner similar to Jennings, individuals are coerced into abandoning their Constitutional rights and foregoing potentially winning Immigration Court cases on a daily basis.
And, just think of the absurd waste of taxpayer money in detaining this harmless individual for months and forcing the legal system to intervene, rather than having both Congress and the DHS use some common sense and human decency. Few Americans fully contemplate just how broken our current immigration system is, and how we are trashing our Constitution with inane statutes enacted by Congress and poor judgment by the officials charged with administering them.
Easy to “blow off” until it’s you, a relative, or a friend whose Constitutional rights are being mocked and life ruined. But, by then, it will be too late! Stand up for Due Process and human decency now!
As part of a joint six-month investigation, NBC-owned television stations across the country interviewed retired and current immigration judges, some of whom said the backlog is threatening to overwhelm the court
By Chris Glorioso, Dave Manney, Erica Jorgensen and Evan Stulberger
Documents from the Trump administration show the president’s plan to ship more immigration judges for temporary assignments in border states is encountering a fundamental problem: there isn’t enough work for all the new judges to do.
According to an assessment of “Surge Hearing Locations,” dated April 4, 2017, the Department of Justice found six of the 17 immigration courts receiving transferred judges could not give those judges enough work to support a full docket.
INVESTIGATIVE’Phantom’ Judges Cause Confusion in NYC Immigration Court
In the assessment and supporting documents, DOJ staffers wrote about an immigration court in Karnes, Texas, where there was “concern regarding the lack of filings to sustain details from other courts”
Immigration: Crisis in the Courts
An overview on how immigration judges are struggling with a punishing backlog that in many cities is pushing cases far into the future, slowing deportations and leaving families in limbo.
The same assessment says another court in Texas’s Prairieland Detention Center “is not receiving enough cases to truly fill a docket or even come close to it.”
At the court inside Texas’s Dilly Family Residential Center, DOJ staffers wrote “the one judge detailed there is not occupied.”
At New Mexico’s Cibola County Detention Center, DOJ staffers found the caseload “has not been sufficient to keep the two immigration judges assigned to this docket occupied.”
Staffers also noted two empty courtrooms at New Mexico’s Otero immigration facility — and concluded there were “insufficient caseloads for further deployments.”
Scheduling records show the Justice Department repeatedly assigned five transferred judges to the immigration court in Louisiana’s LaSalle Detention Facility, even though an assessment of the court found “at this time there is not enough work for five judges. There is enough work for a reasonable docket and three judges.”
The report went on to conclude that inefficient transferring of detainees often means “there is very little work for a detailed judge to complete.”
In most cases, the transferred judges spend two weeks to a month hearing cases in out-of-state court.
The Department of Justice declined to comment for this story, but in response to a previous inquiry by Politico, an agency spokesman said “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process.”
While transferred judges may have had light workloads when they arrived in some of the border state courts, there is evidence the dockets they left behind suffered in their home courts.
A joint analysis by the News 4 I-Team and Telemundo 47 Investiga found case adjournments in New York City’s immigration court went up 276 percent — from an average of 139 adjournments in the three months before the judge transfers began, to 522 in the three months after judge transfers began.
Despite that, the Trump administration has increased its target from 50 judge reassignments, to at least 137 nationwide. Nineteen New York City immigration judges — more than half of the city’s 32-judge staff – participated in the temporary transfer program.
Olga Byrne, an advocate for refugees at Human Rights First, a nonprofit that represents asylum-seekers in court, said immigration attorneys at her organization have noticed the spike in adjournments and questioned whether judicial assignments border state assignments are worth the trouble.
“We’ve been in touch with a couple of judges who have expressed a lot of frustration about being sent to a detention center where they could take a long lunch break,” said Byrne. “They had only a few cases to consider for a whole week and yet they had to defer hundreds of cases from their docket in their home court.”
But it is clear the Trump Administration knew its decision to deploy more judges to border states would likely have negative impacts on dockets those judges leave behind in their home states.
In response to questions from U.S. Senate staffers, a DOJ memo concedes that “it is likely that the case backlog will increase for the locations from which an Immigration Judge is assigned.”
In New York City alone, there are more than 82,000 immigrants waiting for a court hearing. The average wait time is north of two and a half years. Nationwide, the immigration case backlog stands at more than 617,000.
Rep. Adriano Espaillat (D – Upper Manhattan), who came to America as an undocumented immigrant, said he fears the Trump administration is over-staffing border state courts to rapidly deport current border-crossers, while ignoring the population of non-detained immigrants who’ve been living and working in America’s big cities, hoping for a shot at citizenship for years.
“By shifting judges to the border, they are in fact maybe predicting that there will be lots of cases before them in those jurisdictions,” Espaillat said. “I am concerned this is part of a greater effort to put together a deportation machine – and proceed to arrest and deport thousands of people who are undocumented.”
This isn’t the first time a presidential initiative has been criticized for mucking up immigration court schedules and exacerbating the nationwide case backlog.
During the Obama Administration, the Justice Department launched an effort to prioritize court hearings for unaccompanied minors who enter the country illegally.
Byrne says that too was a political decision which negatively impacted the court’s ability to handle thousands of older cases languishing in the backlog.
“It’s not a new thing that they are basically fulfilling political objectives with the way that the immigration court dockets are managed,” Byrne said. “I think we should be equally critical of both [the Trump and Obama administrations] for using the immigration court to fulfill political objectives rather than focusing on making that court system work well and efficiently.”
Source: I-Team: Immigration Judges Sent to Courts With ‘Very Little Work’ – NBC New York http://www.nbcnewyork.com/investigations/Immigration-Court-New-York-Judge-Investigation-448498463.html#ixzz4uXiMR2xJ
Follow us: @nbcnewyork on Twitter | NBCNewYork on Facebook“
*****************************************
To put this in context, during this massive abuse of the US Immigration Courts at the direction of Sessions and his incompetent politicos at the DOJ, the Chief Immigration Judge issued the notorious “Continuance Policy.” That document not not very subtilely implied that unjustified continuance requests by private attorneys (all of them overburdened by the effects of ADR, and many working on a pro bono or “low bono” basis) and laxity in granting continuances by overwhelmed and demoralized U.S. Immigration Judges were major contributing factors in increasing backlogs. Nothing could be further from the truth!
In fact, conscientious Immigration Judges and dedicated private attorneys are the only ones trying to make this broken system work and to maintain at least a semblance of due process. Their main obstacles: improper politically-motivated interference from the DOJ and poor administration and failure to stand up to the politicos by out of touch bureaucrats at EOIR Headquarters in Falls Church who are afraid to “blow the whistle”because they value their jobs over due process.
What kind of incompetents would draw the bulk of unneeded judicial details from what are known to be the most seriously backlogged Immigration Courts in the US, such as New York and Arlington? What type of incompetents would “study” the impact and need for the details after the fact, rather than carefully planning in advance? Assuming they were necessary (which they weren’t) why weren’t judicial details drawn from among the Assistant Chief Immigration Judges in Falls Church Headquarters who are never assigned actual cases? They, actually have time on their hands. And why does a system in crisis with inept management have highly-paid bureaucratic administrators like the ACIJs who never do any real judging? What makes a person a “judge”if he or she never “judges” anything?
Yes, as I’ve stated before, the Obama Administration enforcement policies and political interference from the Obama DOJ helped drive the backlogs to new heights. But, after taking over an obviously broken system, rather than doing the right thing and fixing the Immigration Courts with bipartisan legislation to create an independent Immigration Court System, with adequate resources, professional court administration, and freedom from political interference in its due process functions, the Trump Administration intentionally made things much, much worse! More judges have resulted in more backlogs because of politicized, incompetent judicial administration and poorly designed enforcement policies at DHS. If that doesn’t tell you something is seriously wrong, what will?
Newly released records obtained by the News4 I-Team show the severe impact new immigration policies have in the Washington, D.C., metropolitan area; one former judge says it’s making the huge immigration court case backlog even worse.
Records from January through July of 2017 show immigration judges around the country were forced to postpone 24,806 cases, because those judges were not in their courtrooms to hear cases.
In the Virginia and Maryland court locations, which serve the D.C. area, more than 2,700 local cases have been pushed off, sometimes for years, because the judges were instead reassigned to hear cases at the border.
“What it isn’t serving, I think, is due process and the ends of justice,” said Judge Paul Wickham Schmidt, who retired from the immigration court in Arlington in 2016, “I think it’s a misuse of resources.”
Source: Federal Records Show New Immigration Policies Delay Local Cases, Increase Court Backlog – NBC4 Washington http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html#ixzz4uUmx6bGk
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook
Schmidt said he’s glad he left the bench, because it allows him to speak freely about what he’s seeing in the court system today.
“It’s a disaster. I think it’s moving toward implosion,” he added, directing his barbs at current immigration policies and the shift in which types of cases are now a priority.
“They’re trying to detain everybody who arrives, so they’ve assigned more judges to the southern border,” said Schmidt. “And those judges leave behind full dockets.”
DC-Area Immigration Courts Scheduling Hearings for 2021
The News4 I-Team learned in the first seven months of this year, the Department of Justice reassigned judges from around the country more than 200 times, usually for two weeks or more. Additional reassignments are ongoing and more are scheduled later this year.
In Arlington, Virginia records show at least 15 reassignments, and while the judges were gone, they had to postpone 2,580 local cases. Only Los Angeles, New York and Miami had more.
“But since most judges are backed up for years, they don’t have any vacant (slots). It’s not like they move them to next week. They move them to slots 3 to 4 years down the road,” said Schmidt. “Why would you use people in an office like Arlington that’s overwhelmed?”
Source: Federal Records Show New Immigration Policies Delay Local Cases, Increase Court Backlog – NBC4 Washington http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html#ixzz4uUnE6DPv
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook
The Arlington court is already scheduling cases for December 2021. That’s the second longest delay in the nation.
In May alone, five of the seven Arlington judges had weeks of reassignment to the border. Records show they delayed 946 cases as a result.
“When you can’t give people hearing dates that are reasonable dates, which they can count on, they know it’s actually going to take place, then as a judge I feel you lose credibility,” said Schmidt.
Immigration: Crisis in the Courts
Schmidt said to make matters worse, while judges are reassigned, they cannot work remotely on cases back at their home courts because the files are all on paper, not electronic.
He said at the border, many cases involve people who recently arrived in the United States and haven’t had time to get a lawyer, so a lot of those cases are not even ready to be heard and get delayed as well.
Published 2 hours ago | Updated 50 minutes ago
Source: Federal Records Show New Immigration Policies Delay Local Cases, Increase Court Backlog – NBC4 Washington http://www.nbcwashington.com/investigations/Federal-Records-Show-New-Immigration-Policies-Delay-Local-Cases-Increase-Court-Backlog-449104633.html#ixzz4uUncKBbO
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook
*****************************
What kind of “court system” puts “Gonzo Enforcement” first and Due Process last? A “captive” one run by incompetentent politicos!
I hope that when Sessions finally shows up for his long-awaited hearing before the Senate Judiciary Committee, Senator Leahy will grill him on his biased and incompetent administration of the U.S. Immigration Courts as well as the false narratives and misrepresentations Sessions spreads about Dreamers and migrants generally.
