"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“In a recent address at EOIR headquarters, Attorney General Jeff Sessions blamed the immigration courts’ present backlog of over 600,000 cases on asylum fraud. In order to lend support to his claim, Sessions conveniently omitted some important facts.
First, Sessions somehow failed to mention that after gaining majority control in the 2010 midterm elections, Republicans in Congress forced a hiring freeze, followed by a “sequester” requiring government-wide budget cuts. EOIR was not able to hire immigration judges or other support staff, while suffering personnel departures. In 2015 testimony to Congress by EOIR’s then director, the late Juan Osuna attributed much of the 101 percent increase in the immigration court’s backlog over the preceding five years to the hiring freeze. Furthermore, the sequester’s budget cuts rendered EOIR unable to replace obsolete computer servers, which resulted in a total system failure in 2014 which wreaked havoc on the courts for more than 5 weeks. These Republican-created problems coincided with the 2014 surge along the southern border of legitimate refugees fleeing increased violence in the Northern Triangle region of El Salvador, Guatemala, and Honduras. The 2014 violence was followed by a 70 percent increase in the murder rate in El Salvador the following year, which, according to a January 2016 article in The Guardian, made it the most dangerous peacetime country in the world.
EOIR publishes a statistical yearbook each year; the most recent is for fiscal year 2016. The report divides asylum claims into affirmative and defensive categories. Defensive applications are filed by individuals who find themselves in removal proceedings facing deportation from the U.S. Some are detained; some are not represented by attorneys. The majority of these individuals are eligible to apply for only one form of relief: asylum. Given the fact that most people in removal proceedings would like to remain in the U.S. and avoid deportation, it is not surprising that a number of these individuals file applications for the only form of relief that might keep them here, even if the likelihood of success is a longshot. Nevertheless, in FY 2016, 31 percent (i.e. nearly a third) of these defensive claims for asylum were granted by immigration judges, according to EOIR’s own numbers.
The second category of asylum applicants listed in EOIR’s annual report consists of affirmative applicants. These are individuals who are not detained or in imminent danger of deportation. Nevertheless, these individuals decided to come forward and apply for asylum, bringing themselves to the attention of DHS and risking deportation should their claims be denied. In FY 2016, EOIR reported that 83 percent of such claims were granted by immigration judges. It should be noted that affirmative applicants are first interviewed by asylum officers with USCIS, a component of DHS. DHS grants asylum to those applicants it deems approvable, and refers the rest to EOIR. So if the cases granted by DHS are added to the EOIR numbers, the grant rate is actually higher.
In removal proceedings, asylum applications are contested by DHS trial attorneys, who nearly always subject asylum applicants to detailed cross-examination.. DHS attorneys may send evidence submitted by asylum applicants for consular investigation in the country of origin, or for forensics examination to determine if there is evidence of fabrication or alteration. The DHS attorneys may also check other databases for evidence that may conflict with the information provided in the asylum application. DHS may offer any results that might indicate fraud into evidence. Sessions falsely claims that “there is no way to reasonably investigate the claims of an asylum applicant in their own country;” in my 12 years as an immigration judge, I was presented with the results of many such in-country consular investigations. I also commonly received reports and heard testimony from forensics examiners employed by DHS.
In addition, in response to reports of fraud, Congress included provisions in the 2005 REAL ID Act that gave immigration judges greater authority to find that asylum applicants lacked credibility. The legislation also made it more difficult to establish asylum eligibility by requiring that one of the five statutorily protected grounds (i.e. race, religion, nationality, membership in a particular social group, or political opinion) be “one central reason” for the feared persecution. Also, the BIA has spent the last 11 years issuing precedent decisions that increase the difficulty of establishing asylum eligibility.
And in spite of all of the above, immigration judges last year found more than 8 of 10 affirmative asylum applicants to be legitimate. The IJs granting these claims are employees of the Attorney General’s own Department of Justice. Immigration Judges are appointed by the Attorney General, and come from a variety of backgrounds. Many previously worked on the enforcement side; many are Republican appointees. Sessions claims that “vague, insubstantial, and subjective claims have swamped our system.” If true, how are more than 80 percent being granted by judges that he and his predecessors appointed?
So then where is the evidence of widespread asylum fraud supporting Sessions’ assertion? What support does he provide in claiming that “any adjudicatory system with a grant rate of nearly 90 percent is inherently flawed?” Why would that be true of the applicants in question chose to come forward and apply for asylum; their claims were screened and prepared by competent attorneys; and where the immigration laws contain significant penalties for filing fraudulent claims, including a lifetime bar on any and all immigration benefits?
About three years ago, while I was the country conditions expert for EOIR, I was one of a number of EOIR employees invited by DHS to attend a training session on country conditions in the Northern Triangle region of El Salvador, Nicaragua, and Honduras. The presenters described horrific conditions in the lawless Northern Triangle, in which murders occur with impunity, boys as young as 7 years old are recruited for gang membership, 11 year old girls are raped, and their fathers killed if they try to intervene. The presenters concluded that in spite of the danger, parents are making very informed decisions in paying to have their children smuggled north under dangerous conditions, considering the horrible conditions at home. Remember, this was not a program put on by Amnesty International; this was DHS training its asylum officers. I enlisted one of the presenters to repeat his presentation for the immigration judges at their training conference the following year. Is Sessions somehow unaware of this information when he portrays such claims as fraudulent?
In support of his fraud claim, Sessions stated that many who were found to have a credible fear of persecution and paroled into the U.S. did not subsequently apply for asylum. However, he neglected to mention that many of those parolees are unaccompanied children. He also did not mention that many parolees cannot afford attorneys, and that pro bono groups’ limited resources are completely overwhelmed by the number of asylum seekers, and that those dedicated pro bono programs who have attempted creative approaches such as providing limited pro bono assistance to pro se applicants have been hampered by EOIR itself, which issued a “cease and desist” letter to at least one such program, the highly regarded Northwest Immigrant Rights Project.
Sessions referenced a 2014 investigation resulting in the arrest of 8 attorneys for engaging in asylum fraud. There are thousands of immigration attorneys in the United States. The overwhelming majority are honest, hardworking and highly respectful of our laws. Since departing the government I been inspired by the seriousness with which private immigration attorneys treat asylum matters. When attorneys speak of a client being granted asylum, they nearly always describe years of preparation, a lengthy hearing, well-researched legal theories, and loads of supporting evidence, often including expert witnesses. These are not half-hour hearings; they are exhausting, contested matters that can last many hours. The attorneys engaged in such work should be applauded for their efforts. And I can’t express enough admiration for the hundreds of immigration judges who, in spite of the pressure created by a daunting workload and biased remarks by the Attorney General they report to, nevertheless continue to afford due process and render fair and impartial judgement on those appearing before them.
Copyright 2017 Jeffrey S. Chase. All rights reserved.”
Reprinted with permission.
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Right on Jeffrey! Thanks for your incisive commentary and analysis!
Gonzo’s extensive record of lies, omissions, intentional distortions, bias, and willful ignorance make him unqualified for any position of public trust, let alone the chief legal official of the US! The inappropriateness of placing such an individual in charge of the US Immigration Courts is simply jaw dropping!
Sen. Liz Warren was right! Our country and our entire system of justice are suffering because a majority of her colleagues “tuned her out!” Speaking truth to power is seldom easy.
“Judy London merges onto the freeway, heading northeast toward a high desert already baking under a recently risen sun. From West Los Angeles, she faces a two-hour, 100-mile drive to the Adelanto Detention Facility to meet a client who is being deported. The commute time can double if rush-hour traffic is particularly bad.
London arrives at the facility and walks up a concrete path flanked by gravel to the detention facility’s entrance. Once inside, rows of chairs and lockers greet her, as does a guard. She checks in but can’t meet her client yet — the facility is undergoing its daily head count, and she has to wait until it’s finished.
It can take another hour from this moment. London still has to be cleared through security and have a guard escort her client to her.
Finally, she has to wait for an interview room. Adelanto Detention Facility has an average daily population of 1,785, but only a handful of rooms designated for lawyer-client meetings. And once a room is available, she’ll have to take all her notes by hand. The facility prohibits the use of phones, laptops and other electronic devices.
London, like many immigration attorneys, spends a lot of time just trying to meet face-to-face with her clients. It’s a good day when she actually meets them. On bad days, she can spend hours traveling, only to be turned away.
The facility in recent months has refused entrance to attorneys for a variety of reasons, including a chickenpox outbreak and hunger strikes.
“Generally, it is far easier for me, as an attorney, to walk into a high-security local or federal prison unannounced to visit a client than it is to get into a detention facility to see someone. And that is odd,” said London, directing attorney for Public Counsel’s Immigrants’ Rights Project.
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Most immigrants detained by Immigration and Customs Enforcement while their deportation cases are being considered don’t have an attorney.
Immigration detention is considered civil detention and, as a result, detainees do not have a right to counsel as they would in criminal cases.
Immigration attorneys say geography is a significant hurdle.
Many ICE facilities in the U.S. are located in smaller cities, hours from cities where most legal aid organizations operate. So even if the government makes legal aid resources available, they can be miles away.
About 30% of detained immigrants are held in facilities more than 100 miles from the nearest government-listed legal aid resource, according to a Times analysis of 70 ICE detention centers.
Of these, the median distance between the facilities and the nearest government-listed legal aid was 56 miles.
The farthest is Etowah County Detention Center in Gadsden, Ala. Alabama doesn’t have an immigration court, so immigrants detained there are referred to the Loyola Law Clinic — 408 miles away in New Orleans.
Immigrants facing deportation are provided with a list of available pro bono legal aid and services. The list is administered by the Justice Department’s Executive Office for Immigration Review, which calls it an “essential tool.”
Providers on the pro bono list — mostly nonprofits — aren’t required to offer free services to every detainee, according to the Justice Department, and only a lucky few get help from pro bono lawyers.
UCLA law professor Ingrid Eagly analyzed 1.2 million deportation cases between 2007 and 2012 and found that just 2% of immigration detainees had free legal representation. Most immigrant attorneys came from solo practitioners or small firms.
The location of detention facilities in remote locations can pose a logistical challenge to the court system as well as the attorneys. Court procedure can vary by jurisdiction. Some have judges at the facility. Some conduct business by teleconference. Some use a combination of the two.
. . . . .
ICE officials did not answer specific questions about why detained immigrants are significantly less likely to obtain counsel or allegations that systemic hurdles limit access to legal representation.
The agency has previously said that it is “very supportive and very accommodating” to detainees who wish to have a lawyer. ICE spokeswoman Jennifer D. Elzea said the department maintained that position.
“ICE is committed to allowing detainees access to visits, telephones, legal counsel and law library resources. Additionally, all facilities have notifications posted throughout providing information about pro bono legal services,” Elzea said in a statement.
No attorney or legal aid group interviewed for this report agreed with ICE’s position.
“The government is locking people up in remote jails and prisons hundreds of miles from attorneys, and arguing that having phones there that sometimes work is sufficient access to counsel,” National Immigrant Justice Center Executive Director Mary Meg McCarthy said in response to ICE’s statement.
“The government spends billions of dollars to sustain — and expand — a system that obstructs lawyers’ ability to defend their clients’ due process rights. We’ve been told by ICE that the agency does not consider availability or proximity of counsel as any part of its assessment of the suitability of a new detention center, and we have no reason to believe that it cares at all whether people in detention have lawyers,” she said.
Immigrant rights proponents see little chance of reform under President Trump.
The administration’s executive orders on immigration have reversed enforcement priorities. Arrests increased by 37.6% during Trump’s first 100 days in office compared with the same period in 2016, according to ICE data.
The fight for reform will take place in more liberal cities and states, and through the efforts of legal aid groups.
The Southern Poverty Law Center recently started the Southeast Immigrant Freedom Initiative. The goal is to provide counsel to every detained immigrant in the Southeast — a region with a high number of deportation cases.
But the program, said Dan Werner, who directs the initiative, was a stopgap measure built out of necessity.
“The real solution is systemic reform of immigration policy,” he said.
In March, New York became the first state to dedicate funding to providing pro bono legal services to every detained immigrant.
And in June, California lawmakers put $45 million in the state budget to expand legal services for immigrants.
Attorneys and advocates view such measures as incremental.
“In most cases, there won’t be accountability in the government,” London said, “so there’s no incentive for them to address it.”
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Read the complete article at the link.
Next time you hear Jeff “Gonzo Apocalyto” Sessions deliver one of his self-righteous, fact-free attacks on asylum seekers and their advocates, remember that the REAL FRAUDSTER HERE IS “GONZO” HIMSELF and his knowingly false narrative about asylum seekers that he uses to “cover up” the intentional abuses of legal and human rights being carried out by ICE and EOIR under his direction. Accountability, addressing the real need for reforms in the immigration enforcement and Immigration Court systems to insure Constitutional Due Process? Not going to happen on “Gonzo’s Watch.”
“What would you do if your brother was murdered, and your child had received death threats? How would you respond if you had been repeatedly raped, and your government did nothing to protect you?
These are the situations our clients have faced. They have traveled hundreds of miles to the United States to save their families’ lives. And they have done so legally, seeking asylum through our nation’s immigration courts.
Last week, Attorney General Jeff Sessions called these families liars. He bemoaned the role of “dirty immigration lawyers” and described the U.S. asylum system as an “easy ticket” to entry.
Nothing could be further from the truth. When these families arrive in the United States they are held in private prisons. Young children and their mothers live in cells with strangers. Fathers and children over 18 are detained on their own. Few receive adequate medical care, and any legal help they obtain is largely provided by overworked nonprofit agency staff.
Despite these conditions, the families persevere. Children celebrate their first birthdays and take their first steps in detention. Spouses write love letters from their respective cells.
And for families who secure their release from detention — after establishing a “credible fear” of return — they want nothing more than to comply with our laws to avoid family separation once more.
Sessions claimed the federal government found a credible fear in 88 percent of cases, and said that any system with such a high passage rate means the system is “inherently flawed.”
But this reasoning is false. Each year, more than 90 percent of medical students pass their board exams. They do not pass because they cheat, or because the exams are inherently flawed. They pass because they are self-selected, having excelled despite years of challenges and setbacks.
The same is true of asylum seekers. Few would be willing to endure family separation and the incarceration of their child unless the stakes were life and death. Those who make it through the credible fear process are self-selected, with genuine fear of return.
Unfortunately, a credible fear interview is just the first stage in seeking asylum. And the government does little to explain to asylum seekers what they must do next.
. . . .
Asylum seekers have every incentive to comply with our laws. If they cannot win their asylum cases, they must live in the shadows, with no pathway to citizenship and little guarantee of avoiding deportation back to the danger they fled. They simply cannot navigate our dense, complex, and at times contradictory, immigration system on their own.
Michelle Mendez is Training and Legal Support Senior Attorney and Defending Vulnerable Populations Project Manager of Catholic Legal Immigration Network Inc. Swapna Reddy is Director of the Asylum Seeker Advocacy Project at the Urban Justice Center, an Echoing Green Fellow and an Equal Justice Works Emerson Fellow.”
Folks like Michelle and Swapna are the “real American heroes” of our justice system, working tirelessly and for modest compensation to preserve the rights of vulnerable asylum seekers. We need more of them and less of Jeff “Gonzo Apocalypto” Sessions and his malicious and ignorant attacks on asylum seekers and their already-limited due process and statutory rights.
“A form of legal immigration status will expire soon for 300,000 Haitians and Central Americans residing legally in the United States, some for nearly two decades, but the Trump administration has given little indication it plans to renew the benefit.
The immigrants have been allowed to live and work in the United States under a program called Temporary Protected Status (TPS) that shields some migrants from deportation if their nations are stricken by natural disasters, civil wars or other calamities.
Permission to stay must be periodically renewed by the Department of Homeland Security, and in the coming weeks, the agency will decide the fate of about 195,000 Salvadorans, 57,000 Hondurans, 50,000 Haitians and 2,550 Nicaraguans. Once the protections lapse, those immigrantswould be subject to deportation.
Their predicament is not as well known as the “Dreamers” who have been allowed to stay under the Deferred Action for Childhood Arrivals (DACA), the program that Trump is canceling. But an end to TPS protections could have wide-ranging consequences, especially in cities such as Los Angeles, Miami, Houston and Washington, where many of the beneficiaries and their U.S.-born children reside.
Democratic lawmakers and advocacy groups are urging the administration to extend the TPS protections, warning that the humanitarian and economic costs of expelling so many long-term U.S. residents would be steep.
Moreover, they say, the countries remain crippled by violence, disease and poverty, and the abrupt loss of the cash remittance payments the immigrants send from the United States would deal a heavy blow to those nations’ feeble economies.
. . . .
But like the DACA debate, the TPS decision has become a proxy for a broader argument about immigration and the enforcement of U.S. laws. The Trump administration has been signaling it wants to break with its predecessors and appears to want to make a statement, said Doris Meissner, the top immigration official under the Clinton administration,
“The deeper point is they don’t want people here from other countries for humanitarian reasons,” said Meissner, now a senior fellow at the Migration Policy Institute in Washington. “They don’t see these various elements of immigration policy as particularly positive for the U.S., or as a broader expression of our values and image in the world.”
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Read the complete article at the link.
Sending folks who are living here legally back to countries in turmoil is a terrible idea, from a humanitarian and a practical standpoint. What would make sense is to offer them some type of legal status. As I’ve pointed out before, even if TPS is revoked, few of these folks are going anywhere soon. With more than 630,000 pending cases in U.S. Immigration Court and the Administration pledged to mindlessly throw many more into the morass, few current TPS holders would be likely to get merits hearings before the end of Trump’s current term.
This is an Administration largely devoid of humanitarian instincts and commitments. Not so much common sense and practicality either.
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.
“Attorney General Jeff Sessions Delivers Remarks About Carrying Out the President’s Immigration Priorities
Austin, TX
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Friday, October 20, 2017
Remarks as prepared for delivery
Thank you for that kind introduction Richard. You’ve been a crime fighter here in this office for over three decades. Thank you for your dedicated service.
I would also like to thank and recognize our selfless and dedicated law enforcement here who put their lives on the line every and who run toward danger for the benefit of us all.
On behalf of President Trump, it is an honor to be here with you all – with the selfless and courageous men and women of law enforcement. President Trump and this Department of Justice understand your mission. The President has directed us to support that mission and support you. And we are committed to doing that.
Donald Trump ran for office as a law-and-order candidate and now he is governing as a law-and-order President. Under his strong leadership, we are finally getting serious about crime and the rule of law. And we are finally getting serious about illegal immigration.
We have the most generous immigration laws in the world. And for decades we have always pulled back from effective enforcement.
But earlier this month, the President released his principles for fixing our immigration system. Let me just say: they are a breath of fresh air. For decades, the American people have been begging and pleading with our elected officials for an immigration system that is lawful and that serves our national interest. Now we have a President who leads.
The principles he laid out deal with every aspect of our immigration problems—everything from border security to interior enforcement to closing loopholes in our asylum program. It’s the kind of bold agenda that the American people have been waiting for. It is reasonable and it will work. And this is a critical point: this is not hopeless; it can be done!
First of all, the President is determined to finally build a wall at our Southern border. This will make it harder for illegal aliens to break into this country. For many, they will decide not to come illegally. But more importantly, the wall will send a message to the world that we enforce our laws. It sends a message: finally we mean it.
And to better do that, President Trump has proposed hiring more than 10,000 new ICE officers, 1,000 new ICE attorneys, 300 new prosecutors, and nearly 400 new immigration judges. He has proposed switching to a more merit-based system of immigration like they have in Canada. That means welcoming the best and the brightest but turning away gang members, fraudsters, drunk drivers, and child abusers. This merit-based system would better serve our national interest because it would benefit the American people. That’s what this agenda is all about. We can’t accept everybody—only people who will flourish.
And that’s why the President supports mandating the use of the E-verify system, which is an internet based system that allows employers to verify that those they hire are authorized to work in the United States.
Under the President’s plan, it would be illegal to discriminate against American workers in favor of foreign workers.
We need this agenda. And Texans know that better than just about anybody.
I’m sure everyone in this room remembers Houston police officer Kevin Will. An illegal alien who had been deported twice drove drunk and hit Officer Will at about 90 miles per hour. Officer Will’s last words were telling someone to get out of the way of the car. He died protecting innocent people. And when he died, his wife was pregnant with their first child.
The open-borders lobby talks a lot about kids—those who are here unlawfully. But open-borders policies aren’t even in their interest either. After the previous administration announced the Deferred Action for Childhood Arrivals—or DACA—policy in 2012, the number of unaccompanied children coming here nearly doubled in one year. The next year, it doubled again.
I doubt that was a coincidence. DACA encouraged potentially tens of thousands of vulnerable children to make the dangerous journey North. That had terrible humanitarian consequences—and Texans know that firsthand.
Earlier this month, Border Patrol arrested two young men who had benefitted from DACA, for allegedly attempting to smuggle illegal aliens into Laredo.
Just a few days later, another beneficiary of DACA was charged with the murder of an 18-year old girl. In total, 2,000 DACA recipients have had their status withdrawn.
The President wants to stop the incentives for vulnerable children to come here illegally. He began to do that last month when he ended the DACA policy.
The President has also laid out a plan to close loopholes that are being exploited in our asylum program.
Under the previous Administration, the federal government began releasing illegal aliens who claimed to be too afraid to return home. Unsurprisingly, the number of these claims skyrocketed nearly 20-fold in eight years from 5,000 in 2009 to 94,000 now. And after their release, many of these people simply disappeared.
It’s too easy to defraud our system right now—and President Trump is going to fix that. The President’s plan to close the loopholes will stop the incentive for false asylum claims.
President Trump is also confronting the state and local jurisdictions that have undertaken to undo our immigration laws through so-called “sanctuary policies.”
Such policies undermine the moral authority of law and undermine the safety of the jurisdictions that adopt them. Police are forced to release criminal aliens back into the community—no matter what their crimes. Think about that: Police may be forced to release pedophiles, rapists, murderers, drug dealers, and arsonists back into the communities where they had no right to be in the first place. They should—according to law and common sense—be processed and deported.
These policies hinder the work of federal law enforcement; they’re contrary to the rule of law, and they have serious consequences for the law-abiding Texans.
Earlier this month, an illegal alien in Kansas pled guilty to reckless driving that killed a law enforcement officer conducting a traffic stop. He tested for a blood alcohol content twice the legal limit. The officer who was killed—Deputy Brandon Collins—had two young daughters.
The illegal alien who killed Deputy Collins had already been arrested twice for driving-related offenses—including a previous drunk driving conviction. Clearly, he had been in police custody, but no one turned him over to ICE.
The politicians behind “sanctuary” policies say that forcing police officers to release criminal aliens back onto the streets will somehow increase community trust.
But that does not make sense to me. Would releasing someone who had been arrested numerous times into your community give you more confidence in law enforcement?
Would learning that a local district attorney actually charges illegal aliens with less serious crimes than Americans to evade federal deportation make you believe they are trying to make your neighborhood safer? Would forcing federal officers to track down criminal aliens on your street instead of safely in the jails make you believe we value your community?
We all know law enforcement is not the problem. You risk your lives each day in service of the law and the people you protect. Cooperation, mutual respect is critical. Disrespecting our law enforcement officers in their lawful duties in unacceptable.
The problem is the policies that tie your hands.
Yet, rather than reconsider their policies, sanctuary jurisdictions feign outrage when they lose federal funds as a direct result of actions designed to nullify plain federal law. Some have even decided to go to court so that they can keep receiving taxpayer-funded grants while continuing to impede federal immigration enforcement. We intent to fight this resolutely.
We cannot continue giving federal grants to cities that actively undermine the safety of federal law officers and intentionally frustrate efforts to reduce crime in their own cities.
These jurisdictions that knowingly, willfully, and purposefully release criminal aliens back into their communities are sacrificing the lives and safety of American citizens in the pursuit of an extreme open borders policy. It’s extreme and open borders because if a jurisdiction won’t deport someone who enters illegally and then commits another crime then who will they deport.
This isn’t just a bad policy. It’s a direct challenge to the laws of the United States. It places the lives of our fine law enforcement officers at risk and I cannot and will not accept this increased risk because certain politicians want to make a statement.
Our duty is to protect public safety and protect taxpayer dollars and I plan to fulfill those duties.
The vast majority of Americans oppose “sanctuary” policies. According to one poll, 80 percent of Americans believe that cities should turn over criminal aliens to immigration officials.
The American people are not asking too much, and neither is the Department of Justice. Federal law enforcement wants to work with our partners at the state and local level. We want to keep our citizens safe.
Fortunately, in President Trump, we have strong leadership that is making a difference.
Since he took office, border crossings have plummeted by nearly a quarter—even as our economy has been booming. This past fiscal year, Border Patrol conducted half of the number of arrests as the previous one, and one-fifth of the number of arrests they made a decade ago.
Now, someone might say, that decline is because they’re just not catching people. But that’s just not true.
Border Patrol’s tactics and their technology have been refined and are only getting better. The Department of Homeland Security believes that they are catching a greater share of illegal aliens than ever—more than four out of five.
So the data show clearly: President Trump’s leadership is making a difference. Would-be lawbreakers know that we are restoring the rule of law and enforcing our immigration laws again.
And under President Trump’s immigration principles, the Departments of Justice and Homeland Security will stop rewarding sanctuary cities with taxpayer dollars.
If these cities want to receive law enforcement grants, then they should stop impeding federal law enforcement.
In Texas, you have taken a leadership role on this issue.
I want to commend the state legislature for passing Senate Bill Four with strong majorities in both chambers, and thank Governor Abbott for signing it into law.
I am well aware that this law has its critics. And I am more than familiar with their line of criticism. But the facts of the case are clearly on Texas’ side.
Earlier this month, the Department of Justice filed an amicus brief in this case. We believe that the outcome is important not just to the state of Texas, but to the national interest. The integrity of our immigration laws is not a local issue—it is a national issue.
I am confident that Texas will prevail in court. But I would urge every so-called “sanctuary” jurisdiction to reconsider their policies. So-called “sanctuary” policies risk the safety of good law enforcement officers and the safety of the neighborhoods that need their protection the most. There are lives and livelihoods at stake.
If we work together, we can make our country safer for all our residents—native born and lawful immigrant alike. Working together requires ending “sanctuary” policies.
The Department of Justice is determined to reduce crime. We will not concede a single block or street corner in the United States to lawlessness. Nor will we tolerate the loss of innocent life because a handful of jurisdictions believe they are above the law.
And so to all the law enforcement here—federal, state, and local—thank you for all that you do. President Trump is grateful; I am grateful, and the entire Department of Justice is grateful for your service. We have your back and you have our thanks.
Thank you, and God bless you.”
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Sessions is proposing to make the U.S. Immigration Court the largest, and certainly most “out of control” Federal Judiciary. And he also wants 10,000 more agents for the Internal Security Police (a/k/a/ DHS) that also runs the American Gulag. Sure sounds like a prescription for turning America into something like “Putinia.” That’s the White Nationalist blueprint and why they are so cozy with repressive, non-democratic rulers like Putin.
I’m exhausted for the week. Going to let someone else come up with all the numbers and studies showing how bogus Sessions’s “Alien Crime Wave” and attempt to falsely link DACA to an increase in kids fleeing gang violence to save their lives.
REALITY CHECK: At some point this grandiose plan for endless personnel and resources devoted largely to keeping needed workers and legitimate refugees out of the U.S. will have to be approved by Congress. And, it promises to be a “Budget Buster.”
Mark Joseph Stern and Perry Grossman report for Slate:
“JURISPRUDENCE
THE LAW, LAWYERS, AND THE COURT.OCT. 19 2017 6:32 PM
Trump’s Dred Scott
In a case about the abortion rights of undocumented minors, the Department of Justice evokes the worst Supreme Court decision of all time.
By Perry Grossman and Mark Joseph Stern
Jeff Sessions and Roger B. Taney
Attorney General Jeff Sessions, left, and Chief Justice Roger B. Taney
Saul Loeb/Getty Images and Library of Congress
Throughout his presidential campaign, Donald Trump maligned undocumented immigrants as violent criminals and sexual predators who deserved to be rounded up and deported. Once in office, Trump transformed this rhetoric into policy, implementing a nationwide crackdown on immigrant communities. Now, the president’s dehumanizing disparagement of undocumented people has now seeped into his administration’s legal positions. This week, the Department of Justice is arguing in court that undocumented, unaccompanied minors have no right to abortions—and that undocumented immigrants may have no constitutional rights at all. This argument does not only contravene Supreme Court precedent. It also draws upon an inhuman notion of constitutional liberty most notoriously espoused in Dred Scott v. Sandford.
The Justice Department’s radical new theory arose out of a disturbing case in Texas that revolves around a 17-year-old referred to as Jane Doe in court filings. Doe arrived in the United States several months ago, unaccompanied by her parents and lacking documentation. She was placed in a federally funded Texas shelter, at which point she learned she was pregnant. Doe requested an abortion, but under state law, minors cannot receive the procedure without either parental consent or judicial approval. So Doe obtained what’s known as a judicial bypass and asked permission to attend a state-mandated counseling session before undergoing the procedure.
Her shelter refused to allow her to attend that counseling session, citing federal regulations promulgated by the Office of Refugee Resettlement, a wing of the Department of Health and Human Services. In March, ORR announced that federally funded shelters could not take “any action that facilitates” abortion for unaccompanied minors, including “scheduling appointments, transportation, or other arrangement,” without “direction and approval” from Scott Lloyd, the agency’s director. A Trump appointee and longtime anti-abortion activist, Lloyd has refused to allow minors to access abortion services. Instead, he has directed shelters to take these women to “crisis pregnancy centers,” which “counsel” them not to get abortions. At least once, Lloyd himself called a pregnant minor to talk her out of terminating her pregnancy. If a minor still wants to get an abortion after navigating these obstacles, ORR instructs its shelters to block her from attending her appointment.
Doe’s shelter followed these guidelines, taking her to a crisis pregnancy center and calling her mother to tell her Doe was pregnant. But Doe persisted, and in October, her court-appointed attorneys filed suit along with the American Civil Liberties Union in a federal district court in Washington, where ORR is headquartered. Doe argues that ORR’s rules violate her constitutional rights by placing an undue burden on her access to abortion.
On Wednesday, U.S. District Judge Tanya Chutkan held a hearing in the case. While defending the government, Department of Justice attorney Scott Stewart strongly implied that undocumented women do not have a right to abortion. Here, Stewart was echoing an amicus brief filed by the Texas attorney general’s office, which proclaimed that “unlawfully present aliens” living in the United States have no constitutional right to abortion access. Chutkan then asked Stewart whether Doe has any constitutional rights; Stewart declined to make that “concession.”
Chutkan ruled against the government and issued a temporary restraining order guaranteeing Doe the ability to terminate her pregnancy. (She is currently 15 weeks pregnant, and abortion is illegal after 20 weeks in Texas.) The DOJ appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which will hear arguments in the case on Friday morning. In its motion, the agency argued that the government’s “interest in promoting fetal life and childbirth over abortion” justified its refusal to let a minor go to an abortion clinic. It also claimed that, even if undocumented minors have a constitutional right to abortion care, the administration was not unduly burdening that right, because minors who want to terminate their pregnancies can leave the country. This argument is merely another way of stating that women like Doe have no right to an abortion in the United States.
By excluding undocumented immigrants from the protections of Planned Parenthood v. Casey, the Trump administration is essentially asserting that they do not qualify as “person[s]” under the Due Process Clauses of the Fifth and 14th Amendments. The Supreme Court has ruled that the liberty component of the Due Process Clause protects a woman’s right to terminate her pregnancy without a substantial obstacle. If arbitrary regulations that severely burden clinics qualify as such an unconstitutional obstacle, as the Supreme Court has held, then surely self-deportation does as well. Thus, the sole plausible interpretation of the DOJ’s posture is that the Due Process Clause does not protect undocumented women like Doe. Put simply, undocumented women are not people for constitutional purposes.
If the government can force Doe to carry her pregnancy to term, what can’t it do?
This theory parallels the Supreme Court’s most infamous ruling. Dred Scott was a black man born into slavery who moved with his “master” from a slave state to a free state. Upon his master’s death, Scott sued for his freedom. In 1857, Chief Justice Roger B. Taney—a virulent racist whose statue was removed from the grounds of the Maryland State House in August—wrote an opinion dismissing Scott’s suit. Taney held that black people were not “persons” based on the language of the Constitution and that Scott, as a black man, therefore had no right to sue in the federal courts. Black men, Taney wrote, were “so far inferior” to whites that they had “no rights which the white man was bound to respect.”
Following the Civil War, Dred Scott was overturned by the 13th and 14th Amendments. These amendments ensured that everyone born in the United States would be a citizen. They also granted all “person[s]”—not just citizens—due process and equal protection under the law. Trump has already raised the specter of Dred Scott through his call to end birthright citizenship, the constitutional command that lay at the heart of the Civil War amendments. Now his administration is invoking the decision again in its attempt to deprive undocumented immigrants of their personhood under the Constitution.
The government has rarely alleged that undocumented immigrants may be deprived of rights protected by the liberty component of due process, what’s also known as “substantive” due process. Its few attempts have been unsuccessful. In 2003, the Bush administration argued that substantive due process does not apply to immigrants who reside in the country illegally. The 6th U.S. Circuit Court of Appeals, sitting en banc, emphatically rejected this claim, explaining
If excludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States government could not torture or summarily execute them. … [W]e do not believe that our Constitution could permit persons living in the United States—whether they can be admitted for permanent residence or not—to be subjected to any government action without limit.
Perhaps recognizing the extremism of its argument, the Trump administration has left open the possibility that undocumented immigrants are entitled to some unspecified “minimal standards” of constitutional protection. But if those minimal standards don’t include the basic right to bodily autonomy, then the 6th Circuit’s query still stands. If the government can force Doe to carry her pregnancy to term against her will, what can’t it do? The administration’s attempt to exert complete control over Doe’s reproductive system is a straightforward deprivation of constitutional liberty that opens the door to equally egregious future abuses.
On Friday morning, the Justice Department will return to court once more to argue, in effect, that Jane Doe is not a “person” worthy of due process protections. It might as well cite Dred Scott for the proposition that the government may strip undocumented immigrants of their constitutionally protected liberty. The 14th Amendment was designed to end such capricious discrimination against individuals living in the United States. But to the Trump administration, immigrants like Doe aren’t even people—just possessions of the state, awaiting deportation.”
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Just when you think that Gonzo Apocalypto can’t sink any lower, he manages to achieve new depths!
“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.”
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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.
Few Americans know about our nation’s system of immigrant detention centers. Each year, the US government locks up roughly 440,000 immigrants in over 200 immigrant prisons. These facilities have grown into a highly privatized, lucrative, and abusive industry that profits off the misery of immigrants awaiting deportation.
Here at Brave New Films, we’re doing everything we can to expose the abuses of the deportation-industrial complex. In our new film, Immigrant Prisons, we explore conditions inside the detention centers, exposing substandard medical care, widespread physical and sexual abuse, virtual slave-labor working conditions and more. These abuses happen behind closed doors with little to no oversight.
Our film, created in partnership with advocates for detainee rights, is shining a light on a particularly dark corner of the American justice system. Watch now and share with friends.
It’s important to remember that immigration detention is a civil form of confinement. “This is not criminal custody, this is not someone who’s been convicted of a crime,” says attorney James Fife of the Federal Defenders of San Diego. “This is just someone who’s being held for the government’s convenience so that the person’s available” for processing, said Fife.
Unlike with criminals who have been convicted of a crime, there’s no time limit on how long people can be held at immigration detention centers. It’s hard to believe, but immigrants can be locked up indefinitely without a criminal offense or bond hearing. In the film we highlight the case of a Kenyan immigrant, Sylvester, who spent nine years and four months in immigration detention. Another immigrant describes her time in detention as being “like a legal kidnapping.”
Immigrant detention centers are overseen by US Immigration and Customs Enforcement, or ICE, a division of the Department of Homeland Security. Since ICE was created in 2003, there have been 177 confirmed deaths in detention centers. Medical neglect is the greatest contributing factor.
In the film, we speak with Gerard, a former detainee who almost died during his 11 months at a California facility. He was denied medical care for two weeks as a severe infection spread in his body. The private-facility managers kept ignoring his requests until it was nearly too late. Such medical neglect contributed to nearly half of all deaths in immigrant prisons.
Christina Fialho, the executive director of CIVIC and a leading advocate for detainee rights, says that “denial of medical care at immigration-detention facilities is routine.” This substandard medical care is often accompanied by substandard food, unsanitary water, and generally unhygienic living conditions.
Fialho says that immigrant-detention centers are also plagued by abuse. “Guards with little to no training are kicking, hitting, sexually assaulting people in immigration detention,” she says. Each year thousands of complaints alleging sexual and physical abuse and substandard medical care are filed with authorities, but very few cases are ever investigated.
Adding insult to injury, detainees at for-profit detention centers are often coerced into working for virtually no money. The for-profit companies that run the facilities have all the wrong incentives and a captive workforce at their disposal. The food they provide detainees is frequently so inadequate that detainees feel they have no choice but to work for $1 a day to buy additional food from the commissary, often at inflated prices. Fialho doesn’t mince words about this practice: “Detention centers are starving people into working in order to then cut staff salaries.”
The two largest private detention-center operators, CCA and Geo Group, got started in the 1980s. In fact, CCA’s very first contract was for locking up immigrants. In the past 20 years, the two companies have made over $12 billion in profits, largely from immigrant detention.
Wrongful-death lawsuits and class-action lawsuits alleging forced labor have helped expose abuses at private immigrant prisons, but systemic reforms are needed. Stock in CCA and Geo Group slid after the Obama administration moved to end the use of private prisons by the federal government, but the stocks rocketed up after the 2016 election. President Trump, who received major contributions from the private-prison industry, reversed President Obama’s order on private prison use and has proposed a 25 percent increase in ICE’s budget.
Immigrant Prisons is our first film on the deportation industrial complex. In future films we’ll explore how private-prison companies promote policies and procedures that line their own pockets, and profile the individuals who are working to perpetuate our abusive immigration-enforcement system.
Unlike the private prison industry, we don’t have millions to spend on advertising and lobbying. But there is a powerful grassroots movement rising up in this country to take on abuses in our immigration system.
I hope you will join the movement and share Immigrant Prisons with your networks. You can also screen the film for free at schools, houses of worship, and community meetings for local media and elected officials through our Brave New Educators program. Together we can bring detained immigrants out from the darkness and provide them with the respect and dignity that we owe to all people.
We premiered the film last night in Santa Monica with our friends at The Young Turks. Cenk Uygur moderated a panel which included Pastor Noe who was recently released from an immigrant prison. If you or someone you know has a powerful story about immigrant prisons, please get in touch.
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.”
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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.
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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.
“I never expected to speak the phrase: “As Mississippi goes, so goes the federal government.” But when it comes to demeaning and disempowering LGBT, it is now apropos.
The self-righteous drive to make others suffer for not living Evangelical beliefs appears to be unstoppable with Trump in power and with Sessions as his henchman for civil rights. They are taking their cues from the Deep South and particularly Mississippi.
Mississippi is the national leader on religiously-motivated discrimination against LGBT and generating divisiveness on these issues, as I discussed here.
Mississippi continues to aspire to fomenting the most discrimination against LGBT with HB 1523, which explicitly permits business owners to refuse service to LGBT for religious reasons. The trial court correctly held that it was unconstitutional and issued a preliminary injunction.
In June, the Fifth Circuit let the law go into effect, holding that the challengers lacked standing. On further review, the Fifth Circuit refused to vacate the ruling, which let the law stand. Now perhaps it goes to the Supreme Court.
Its sponsors put it into place so that Evangelicals can legally exclude LGBT from the marketplace. They say it’s about their “religious liberty,” by which they mean not the right to observe their own practices, but rather their supposed right to judge and condemn others before doing business with them.
The whole anti-LGBT project is so unbelievably hypocritical: they aren’t fighting to bar liars, adulterers, rapists, or pedophiles from their businesses, all of whom who violate plain biblical commands.
Attorney General Jeff Sessions at the Department of Justice on February 28, 2017 in Washington, D.C. ZACH GIBSON/GETTY
What they are engineering is lives without having to associate with “those people.” One can only hope that good, old-fashioned profit motives enrich those businesses that provide service to LGBT and put out of business those who prefer the Jim Crow life.
Trump Administration Follows Mississippi’s Lead
Now, Attorney General Jeff Sessions has piled onto this administration’s obsession with humiliating and harming transgender Americans here and here with a new document interpreting federal law to require accommodation of those in the government who believe LGBT are sinful.
That’s right, the drive is to accommodate the ones who cannot tolerate those who aren’t like them. This is all about deconstructing the LGBT civil rights the Obama administration put into place as discussed here and here.
For good measure, the administration is also rolling back protections intended to ensure LGBT are not discriminated against in long-term care facilities. (The administration also went after women’s rights to contraception as fellow columnist Joanna Grossman explains, again an issue where it is in lock step with Evangelical lobbyists.)
Where Did This Intolerance Come From?
The push to inflict exclusion and suffering on LGBT for religious reasons owes its origins to the working out of the Religious Freedom Restoration Act in American culture. Whether you have read Hegel or Calvin, this is what happens when you put into place a “right” that has no natural limit.
The religious lobbyists, including knowing conservatives and some truly naïve liberals, backed this benighted law in 1993. It was declared unconstitutional in 1997 in Boerne v. Flores, because it was so far removed from anything that the First Amendment had ever required .
What was unleashed with this federal statute, which morphed into state laws and later federal law, was a theory that the default position for religious liberty should be that a religious believer has a right to overcome any law that burdens religiously-motivated conduct.
Many laws exist to protect the vulnerable. When religious believers seize a “right” to trump the law, they in effect hurt the vulnerable. That is true here.
This power grab—particularly by religious organizations who believe in imprinting their beliefs on the culture—paved the way for the depraved arguments now being made for “religious liberty” that amount to exclusion and harm to an entire category of citizens defined solely by their sexual orientation. They have falsely claimed the mantle of victimhood while making victims of others.
The powerful choose the labels and the vulnerable suffer. If you have not seen this power maneuver elsewhere in history or in the Trump Administration’s dealings with race, you are not paying attention.
Marci A. Hamilton is the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the Fox Leadership Program at the University of Pennsylvania; the founder, CEO, and Academic Director of the nonprofit think tank to prevent child abuse and neglect, CHILD USA, and author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com.”
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While the Evangelical right wages a bogus war against the non-existent “Sharia law in America,” the real threat to our freedoms, our Constitution, and the rule of law is posed by these very same right wingers. Led by folks like Gonzo who have moved from the “wacko fringe” to positions of power, they are forcing their false interpretation of Christianity down the throats of the rest of us who don’t share their “Gospel of Hate & Intolerance.”
From a theological standpoint (after all, it is Sunday), Jesus’s ministry was not to the rich, powerful, rulers, or Pharisees enforcing the Jewish Law; no, Jesus’s ministry was one of love, compassion, forgiveness, and eternal hope for the outsiders, the outcasts, the poor, and the “rejected” of Jewish and Roman society. If Jesus were among us today, he would much more likely be found “rubbing shoulders” and preaching to the gay community or the undocumented than he would wandering the halls of Jeff Sessions’s Department of (In)Justice.
“As discussed in last week’s post, in 2002, the standard under which the BIA reviews credibility determination was changed as part of the reforms instituted by then Attorney General John Ashcroft. Furthermore, in 2005, Congress enacted the REAL ID Act, which provided immigration judges with broader grounds for determining credibility. These two factors combine to make it more difficult for the Board to reverse an immigration judge’s adverse credibility finding than it was prior to these changes. The following are some thoughts on strategy when appealing credibility findings to the Board.
1. Don’t offer alternative interpretations of the record.
You cannot successfully challenge an adverse credibility finding by offering an alternative way of viewing the record. If the IJ’s interpretation is deemed reasonable, the BIA cannot reverse on the grounds that it would have weighed the documents, interpreted the facts, or resolved the ambiguities differently. Or as the Supreme Court has held, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).
2. Does the record support the IJ’s finding?
On occasion, the discrepancy cited by the IJ is not found in the transcript. IJs hear so many cases; some hearings are spread over months or years due to continuances; witnesses or their interpreters do not always speak clearly; documents are sometimes clumsily translated. For all of these reasons, it is possible that the IJ didn’t quite hear or remember what was said with complete accuracy, or might have misconstrued what a supporting document purports to be or says. It is worth reviewing the record carefully.
3. Does the REAL ID Act standard apply?
The REAL ID Act applies to applications filed on or after May 11, 2005. With the passage of time, fewer and fewer cases will involve applications filed prior to the effective date. However, there are still some cases which have been administratively closed, reopened, or remanded which involve applications not subject to the REAL ID Act standard. In those rare instances, look to whether the IJ relied on factors that would not support an adverse credibility finding under the pre-REAL ID standard. For example, did the IJ rely on non-material discrepancies to support the credibility finding? If so, argue that under the proper, pre-REAL ID Act standard, the discrepancies cited must go to the heart of the matter in order to properly support an adverse credibility finding.
4. Did the IJ’s decision contain an explicit credibility finding?
Under the REAL ID Act, “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.” See INA section 208(b)(1)(B)(iii) (governing asylum applications); INA section 240(c)(4)(C) (governing all other applications for relief). Therefore, review the decision carefully to determine if an explicit credibility finding was made. In some decisions, the immigration judge will find parts of the testimony “problematic,” or question its plausibility, without actually reaching a conclusion that the testimony lacked credibility. In such cases, argue on appeal that the statutory presumption of credibility should apply.
5. Did the credibility finding cover all or only part of the testimony?
As an IJ, I commonly stated in my opinions that credibility findings are not an all or nothing proposition. A respondent may be credible as to parts of his or her claim, but incredible as to other aspects. There are instances in which a single falsehood might discredit the entirety of the testimony under the doctrine of falsus in uno, falsus in omnibus. However, there are variations in the application of the doctrine among the circuits, and there are exceptions. For example, the Second Circuit in Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) recognized the doctrine, but laid out five specific exceptions under which a false statement will not undermine the overall credibility. However, the Seventh Circuit, in Kadia v. Gonzales, 501 F.3d 817 (7th Cir, 2007) rejected falsus in uno,referring to it as a “discredited doctrine.” The Ninth Circuit, in Shouchen Yang v. Lynch, 815 F.3d 1173 (9th Cir. 2016), acknowledged that an IJ may apply the doctrine, but that the Board itself could not (for example, to deny a motion to reopen based on a prior adverse credibility finding). Therefore, determine whether under the applicable circuit case law the falsehood cited by the IJ was sufficient to undermine all of the testimony. If not, determine whether the remainder of the testimony is sufficient to meet the burden of proof.
6. Did the IJ rely on a permissible inference, or impermissible speculation?
In Siewe v. Gonzales, supra, the Second Circuit discussed the difference between a permissible inference and impermissible “bald” speculation. The court cited earlier case law stating that “an inference is not a suspicion or a guess.” Rather, an inference must be “tethered to the evidentiary record:” meaning it should be supported “by record facts, or even a single fact, viewed in the light of common sense and ordinary experience.” Generally, findings such as “no real Christian wouldn’t know that prayer” or “the police would never leave a copy of the arrest warrant” would constitute bald speculation unless there was expert testimony or reliable documentation in the record to lend support to such conclusion.
7. Did the IJ permissibly rely on an omission under applicable circuit law?
There is a body of circuit court case law treating omissions differently than discrepancies. For example, several circuits have held that as there is no requirement to list every incident in the I-589, the absence of certain events from the written application that were later included in the respondent’s testimony did not undermine credibility. Look to whether the omission involved an event that wasn’t highly significant to the claim. Also look for other factors that might explain the omission, i.e. a female respondent’s non disclosure of a rape to a male airport inspector; a respondent’s fear of disclosing his sexual orientation to a government official upon arrival in light of past experiences in his/her country. Regarding omissions in airport statements, please refer to my prior post concerning the questionable reliability of such statements in light of a detailed USCIRF report. See also, e.g., Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007); Ramseachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), addressing factors to consider in determining the reliability of airport statements.
8. Was the respondent provided the opportunity to explain the discrepancies?
At least in the Second and Ninth Circuits, case law requires the IJ to provide the respondent with the opportunity to respond to discrepancies. The Second Circuit limits this right to situations in which the inconsistency is not “dramatic,” and the need to clarify might therefore not be obvious to the respondent. See Pang v. USCIS, 448 F.3d 102 (2d Cir. 2006).
9. Did the “totality of the circumstances” support the credibility finding?
Even under the REAL ID Act standards, the IJ must consider the flaws in the testimony under “the totality of the circumstances, and all relevant factors.” INA sections 208(b)(1)(B)(ii), 240(c)(4)(C). The circuit courts have held that the standard does not allow IJs to “cherry pick” minor inconsistencies to reach an adverse credibility finding. For a recent example, note the Third Circuit’s determination in Alimbaev v. Att’y Gen. of U.S. (discussed in last week’s post) finding two inconsistencies relied on by the BIA as being “so insignificant…that they would probably not, standing alone, justify an IJ making an adverse credibility finding…”
Copyright 2017 Jeffrey S. Chase. All rights reserved.”
REPRINTED WITH PERMISSION
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Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!
By Paul Wickham Schmidt
United States Immigration Judge (Retired)
For those of you who don’t know him, Judge Jeffrey Chase has a unique perspective starting his career in private practice, becoming a U.S. Immigration Judge in New York, and finally finishing his Government career as an Attorney Advisor writing decisions for the BIA.
Great stuff, Jeffrey! I love being able to help folks “tune in” to things the they can actually use in the day to day practice of immigration law!
One of the best ways to fight “Gonzoism” and uphold due process is by winning the cases one at a time through great advocacy. Don’t let the “false Gonzo narrative” fool you! Even under today’s restrictive laws (which Gonzo would like to eliminate or make even more restrictive) there are lots of “winners” out there at all levels.
But given the “negative haze” hanging over the Immigration Courts as a result of Gonzo and his restrictionists agenda, the best way of stopping the “Removal Railway” is from the “bottom up” by: 1) getting folks out of “Expedited Removal” (which Gonzo intends to make a literal “killing floor”); 2) getting them represented so they can’t be “pushed around” by DHS Counsel and Immigration Judges who fear for their jobs unless they produce “Maximo Removals with Minimal Due Process” per guys like Gonzo and Homan over at DHS; 3) getting them out of the “American Gulag” that Sessions and DHS have created to duress migrants into not seeking the protection they are entitled to or giving up potentially viable claims; 4) making great legal arguments and introducing lots of corroborating evidence, particularly on country conditions, at both the trial and appellate levels (here’s where Jeffrey’s contributions are invaluable); 5) fighting cases into the U.S. Courts of Appeals (where Gonzo’s false words and perverted views are not by any means the “last word”); and 5) attacking the overall fairness of the system in both the Courts of Appeals and the U.S. District Courts — at some point life-tenured Article III have to see the absolute farce that an Immigration Judiciary run by a clearly biased xenophobic White Nationalist restrictionist like Sessions has become. Every time Gonzo opens his mouth he proves that the promise of Due Process in the Immigration Courts is bogus and that the system is being rigged against migrants asserting their rights.
Sessions couldn’t be fair to a migrant or treat him or her like a human being if his life depended on it! The guy smears dreamers, children whose lives are threatened by gangs, hard-working American families, LGBTQ Americans, and women who have been raped or are victims of sexual abuse. How low can someone go!
Virtually everything Gonzo says is untrue or distorted, aimed at degrading the humanity and legal protections of some vulnerable group he hates (Gonzo’s “victim of the week”), be it the LGBTQ community, asylum seekers, women, children, immigrants, Muslims, African-Americans, attorneys, the Obama Administration, or U.S. Immigration Judges trying to do a conscientious job. Perhaps the biggest and most egregious “whopper” is his assertion that those claiming asylum at the Southern Border are either fraudsters or making claims not covered by law.
On the contrary, according to a recent analysis by the UNHCR, certainly a more reliable source on asylum applicants than Gonzo, “over 80 percent of women from El Salvador, Guatemala, Honduras, and Mexico who were screened on arrival at the U.S. border ‘were found to have a significant possibility of establishing eligibility for asylum or protection under the Convention against Torture.'” “Majority of Asylum Seekers have Legitimate Claims: Response to Sessions Statement,” available online at https://www.wola.org/2017/10/no-basis-claims-rampant-abuse-us-asylum-system-response-sessions-statement/.
This strongly suggests that the big fraud here isn’t coming from asylum seekers. No, the real fraud is the unusually high removal rate at the border touted by Gonzo and his EOIR “patsies” — the result of improper adjudications or unlawful manipulation of the system (intentional duress – misinforming individuals about their rights) by DHS, the U.S. Immigration Court, or simply wrong constructions of protection law.
I think that the majority of Immigration Court cases are still “winners” if the respondents can get competent representation and fight at all levels. Folks, Jeff “Gonzo Apocalypto” Sessions has declared war on migrants and on the Due Process Clause of our Constitution.
He’s using his reprehensible false narratives and “bully pulpit” to promote the White Nationalist, Xenophobic, restrictionist “myth” that most claims and defenses in Immigration Court are “bogus” and they are clogging up the court with meritless claims just to delay removal. The next step is to eliminate all rights and expel folks without any semblance of due process because Gonzo has prejudged them in advance as not folks we want in our country. How biased can you get!
So, we’ve got to prove that many, probably the majority, of the cases in Immigration Court have merit! Removal orders are being “churned out” in “Gonzo’s world” by using devices such as “in absentia orders” (in my extensive experience, more often than not the result of defects in service by mail stemming from sloppiness in DHS and EOIR records, or failure of the DHS to explain in Spanish — as required by law but seldom actually done — the meaning of a Notice to Appear and the various confusing “reporting requirements”); blocking folks with credible fears of persecution or torture from getting into the Immigration Court system by pushing Asylum Officers to improperly raise the standard and deny migrants their “day in court” and their ability to get representation and document their claims; using detention and the bond system to “coerce” migrants into giving up viable claims and taking “final orders;” intentionally putting detention centers and Immigration Courts in obscure detention locations for the specific purpose of making it difficult or impossible to get pro bono representation and consult with family and friends; using “out-of-town” Immigration Judges on detail or on video who are being pressured to “clear the dockets” by removing everyone and denying bonds or setting unreasonable bonds; sending “messages” to Immigration Judges and BIA Judges that most cases are bogus and the Administration expects them to act as “Kangaroo Courts” on the “Removal Railroad;” taking aim at hard-earned asylum victories at all levels by attacking and trying to restrict the many favorable precedents at both the Administrative and Court of Appeals levels that Immigration Judges and even the BIA often ignore and that unrepresented aliens don’t know about; improperly using the Immigration Court System to send “don’t come” enforcement messages to refugees in Central America and elsewhere; and shuttling potentially winning cases to the end of crowded dockets through improper “ADR” and thereby both looking for ways to make those cases fail through time (unavailable witnesses, changing conditions) and trying to avoid the favorable precedents and positive asylum statistics that these “winners” should be generating.
Folks, I’ve forgotten more about immigration law, Due Process, and the Immigration Courts than Gonzo Apocalypto and his restrictionist buddies on the Hill and in anti-immigrant interest groups will ever know. Their minds are closed. Their bias is ingrained. Virtually everything coming out of their mouths is a pack of vicious lies designed to “throw dirt” and deprive desperate individuals of the protections and fairness we owe them under our laws, international law, and our Constitution. Decent human beings have to fight Gonzo and his gang of “Bad Hombres” every inch of the way so that their heinous and immoral plan to eliminate immigration benefits and truncate Due Process for all of us on the way to creating an “Internal Security Force” and an “American Gulag” within the DHS will fail.
Remember,”as you did it to one of the least of these my brothers, you did it to me.” Gonzo’s going to have some ‘splainin top do at some point in the future!
Stand Up For Migrants’ Rights! “Gonzo and His Toxic Gang Must Go!” Sen. Liz Warren was absolutely right. Demand a “recount” on the NYT “Worst Trump Cabinet Member” poll. Gonzo is in a class by himself!
“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.
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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.
