Statistics – Page 8 – immigrationcourtside.com

WASHPOST CALLS OUT TRUMP’S RACIST ATTACKS ON MIGRANTS: “This is Trumpism at its ugliest: turning truth on its head; vilifying the “other”; sowing hatred and fear. It is un-American at its core; it’s also the president’s stock in trade.”

https://www.washingtonpost.com/opinions/unauthorized-immigrants-are-overwhelmingly-law-abiding-but-it-wont-stop-trump/2019/06/02/5f4f696a-8193-11e9-bce7-40b4105f7ca0_story.html

The Post Editorial Board writes:

UNDER THE Trump administration, deportation agents have arrested unauthorized immigrants with no criminal records at more than three times the rate they were arrested during the final two years of the Obama administration. That may be surprising given the White House’s relentless and sweeping characterization of such migrants as dangerous criminals, gang members and, in the president’s own words, “bad hombres.”

Or maybe not so surprising. Multiple studies have shown that immigrants generally commit crimes at a lower rate than native-born Americans. New data — the most comprehensive to date — suggest there is also no correlation between illegal immigrants and higher crime rates. Notwithstanding the president’s inflammatory rhetoric, most undocumented immigrants are law-abiding, which may help explain the growing percentage of those picked up by Immigration and Customs Enforcement agents who have no crime on their records.

The new data come from studies undertaken by the Pew Research Center and the Marshall Project, both nonpartisan outfits. Crunching the numbers, Pew broke down changes in the number of unauthorized immigrants in each of some 180 metropolitan areas in the decade that ended in 2016. Using those figures and places, the Marshall Project compared them with local rates of violent and property crime from the Uniform Crime Reporting program, published by the FBI.

The results showed that crime declined in the large majority of those metro areas, as it has for more than 20 years throughout the United States generally, whether the number of undocumented migrants increased or decreased in a particular place. Anna Flagg, a senior data reporter for the Marshall Project, wrote that “changes in undocumented populations had little or no effect on crime in the various metro areas under survey.” There was some data, albeit inconclusive, suggesting that crime fell even more in places with greater numbers of illegal immigrants.

As is often the case, the facts fly in the face of the Trump administration’s agenda, which is to convince Americans that undocumented migrants are a frightening threat. Nonetheless, the new data dovetail with several previous studies — from the libertarian Cato Institute; from Governing Magazine; and from Criminology, an academic journal — that also show no correlation between unauthorized immigration and crime rates. As The Post’s Fact Checker, Glenn Kessler, wrote this year, “the available research indicates that, when compared to U.S. citizens, illegal immigrants commit fewer crimes.”

By bending the data — or, in this case, ignoring facts to suit their own cynical political narrative — Trump administration officials have engaged in demagoguery and scare tactics, the better to whip up xenophobic hysteria. President Trump himself has made it clear he believes that strategy was critical to his electoral success in 2016; there is every indication he will revive and amplify it in the 2020 cycle.

This is Trumpism at its ugliest: turning truth on its head; vilifying the “other”; sowing hatred and fear. It is un-American at its core; it’s also the president’s stock in trade.

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White Nationalism and racism won’t resolve immigration issues. There is a pretty good socio-economic argument that much of Trump’s overblown, expensive, arbitrary, and capricious civil enforcement of immigration laws does more harm than good, removing productive members of our communities and often leaving unnecessary pain and suffering behind. Not too mention tying up public and private resources that could better be spent on things more beneficial to society.

PWS

06-04-19

CENTER FOR PUBLIC INTEGRITY: More Trump White Nationalist Lies Exposed: Facts Show That, Beyond The Compelling Legal & Humanitarian Reasons, Refugees & Asylees Are A HUGE Economic Benefit For The United States!

https://publicintegrity.org/immigration/data-defies-trump-claims-that-refugees-and-asylees-are-a-taxpayer-burden/

Madeline Buiano & Susan Ferriss report for the Center for Public Integrity

DATA DEFIES TRUMP’S CLAIMS THAT REFUGEES AND ASYLEES BURDEN TAXPAYERS

In this May 18, 2018, photo, Majed Abdalraheem, 29, a Syrian refugee and chef with meal delivery service Foodhini, prepares Moussaka, a grilled eggplant dish, at Union Kitchen in Washington. (AP Photo/Noreen Nasir)

Researchers found that between 2005 and 2014, refugees and asylees here from 1980 on contributed $63 billion more to government revenues than they used in public services.

Data defies Trump’s claims that refugees and asylees burden taxpayers

Introduction

How does someone gain refugee or asylee status?

Refugees come with nothing

Madeline Buiano

James R. Soles Fellow

Susan Ferriss

Immigration Project Manager and Senior Reporter

In this post, we’re answering a question we received from Jen: What is the economic impact of refugees in the near and long term (transition time between needing assistance and adding to the economy)?

Since the beginning of his presidency, Donald J. Trump and top advisers have portrayed refugees and asylum seekers as a risky, undesirable demographic.

In 2016, Vice President Mike Pence tried to ban the resettlement of Syrian refugees while he was Indiana’s governor. A federal appeals court blocked the attempt, finding that Pence lacked evidence supporting claims that Syrian refugees were a threat to the people of Indiana. Trump, for his part, issued an order in March 2017 with language suggesting that refugees are a fiscal burden.

The order demanded that U.S. officials produce a report “detailing the estimated long-term costs of the United States Refugee Admissions Program at the Federal, State, and local levels, along with recommendations about how to curtail those costs.”

The draft report didn’t support that assumption of burden, though.

In fact, researchers found that during the 10 years between 2005 and 2014, refugees and asylees here from 1980 on contributed $63 billion more to government revenues than they used in public services. Senior administration officials, possibly including White House aide Stephen Miller, quashed the 55-page draft and submitted a three-page report instead, The New York Timesreported. Soon after, the White House released a fact sheetselectively borrowing from the draft report by noting that the U.S. “spent more than $96 billion on programs supporting or benefitting refugees between 2005 and 2014.”

There were no references to the $63 billion more in taxes that refugees put into public coffers than the value of the services they used.

This pattern of cherry picking one side of the ledger isn’t unusual for those seeking to bolster a political argument. Trump used similar cherry-picked numbers to link immigration, in general, with American wage decline and fiscal strain during his 2016 campaign, as the Center for Public Integrity reported previously.

Before diving deeper into fiscal research on refugees, though — including what the quashed draft report found in detail — it helps to understand how refugees and asylum seekers differ. Some fiscal studies, including the study Trump ordered, scrutinize both groups. It’s also helpful to understand the size of these groups compared to the U.S. population.

HOW DOES SOMEONE GAIN REFUGEE OR ASYLEE STATUS?

Refugees are fleeing persecution or war and are admitted from abroad. To vet them, U.S. officials are dispatched to interview candidates as part of a lengthy screening process. United Nations or U.S. embassy officials refer candidates to the U.S. State Department. Refugees often seek temporary shelter in neighboring countries to escape violence and threats. Many Syrian war refugees, for example, have fled to Turkey, Lebanon and Jordan. After intensive screening, approved refugees enter the U.S. with the help of resettlement organizations and must sign promissory notes to repay the U.S. government for travel costs. About 75 percent of loans are repaid within 15 years and 64 percent within five years, according to the U.S. State Department.

Asylum seekers claiming to be fleeing violence or persecution, by contrast, can present themselves at a U.S. port of entry and request to apply for asylum, as outlined in international treaties the U.S. has signed, as well as U.S. law. The law also allows foreigners to apply for asylum after they’re already inside the United States, whether they entered originally on visas or entered illegally, with some restrictions. Immigration judges review cases to determine whether the asylum applicant’s fear meets the criteria for granting refuge. Asylum seekers have a right to retain an attorney at their expense — or seek pro bono help — but they don’t have a right to an appointed attorney in proceedings.

In 2018, even as refugee numbers surged globally, the Trump administration capped refugee admissions at 45,000. Only 22,000 were ultimately admitted, mostly from the Democratic Republic of the Congo, Burma and Ukraine. Trump used his executive power to cap refugee admissions this year to a new low, for annual caps, of no more than 30,000. In 2016, under President Barack Obama, the U.S. admitted 85,000 refugees.

Trump has also sought to deter mostly Central American migrantswho are arriving often with children at the southern border and asking for asylum.

“The United States will not be a migrant camp and it will not be a refugee holding facility … not on my watch,” Trump said last year. In April of this year, after tweeting that the “country is full,” Trump unveiled an unprecedented proposal to require that asylum seekers pay an application fee. Trump argues that changes to the asylum system are needed because he believes that the vast majority of migrants are faking or exaggerating their fears — despite U.S. State Department recognition that murder rates, gang rapes and extortion are rampant in Central America, especially the main source countries of Honduras, Guatemala and El Salvador.

Refugees and asylees are a tiny fraction of the U.S. population, so it’s hard to credibly pin major national fiscal impact on either group.

Between 2009 and April 2019, a total of 648,482 refugees were admitted to the U.S., according to U.S. Department of State refugee data. That admissions total is equivalent to about 0.2 percent of the U.S. population of 328 million. Separately, between 2007 and 2017, a total of 263,215 people were granted asylum, according to the 2017 Yearbook of Immigration Statistics. That cumulative number is equivalent to about 0.08 percent of the U.S. population.

But isn’t there a backlog of asylum requests, potentially adding more people?

Yes. As of January 2019, 325,277 asylum request cases were pending. But even if all those cases were approved (they won’t be), that number would be equivalent to 0.1 percent of the U.S. population of 328 million. Further, if you were to multiply all those asylum cases by 10 — to account for an exaggerated number of family members who could benefit — that number would add up to the equivalent of 1 percent of the U.S. population.

But can’t refugees or asylees have a noticeable fiscal impact on communities, especially if the newcomers settle in groups, as immigrants often do? Yes. Let’s see what reputable studies show.

REFUGEES COME WITH NOTHING

Randy Capps is the director of research at the Migration Policy Institute, or MPI, a nonpartisan think tank based in Washington, D.C., that’s studied how refugees with a range of language skills and education integrate over time.

“Refugees come to the U.S. with nothing,” Capps said, but they “start making economic contributions right away and they’re not living off government assistance for very long.”

A 2015 MPI refugee-integration study found that between 2009 and 2011, the proportion of refugee men working was 7 percentage points higher than among their U.S.-born counterparts. Refugee women were as likely to work as U.S.-born women. Refugees’ income increased the longer they were in the country. The median income of refugees in the U.S. for at least 20 years was $31,000 higher than the median income of refugees here for five years or less.

MPI researchers also found that refugees’ use of public benefits decreases substantially over time.

Unlike other immigrants, refugees can access public health insurance and some other forms of aid when they arrive. Between 2009 and 2011, food-stamp assistance was a relatively high 45 percent for refugees for their first five years or less, the MPI study found. But food-stamp assistance fell to 16 percent among refugees here at least 20 years. Cash aid dropped from 7 percent to 2 percent for refugees in these same respective cohorts. And reliance on public health insurance fell from 24 percent to 13 percent.

Capps and his fellow authors suggested that providing English classes and job training for refugees while they’re still in camps undergoing the long vetting process could lead to even better outcomes. Ironically, the report also suggests, refugees’ high rate of employment in the U.S. could make it difficult for many to find the time to pursue more education to upgrade skills and earning potential.

Even so, as the Center reported in 2017, refugees are readily sliding into jobs in areas where labor is in short supply. Refugees from various countries are filling jobs at a Chobani facility in Twin Falls, Idaho, the world’s largest yogurt factory. And newly arrived refugees from rural areas of the Democratic Republic of the Congo and Asia are finding work at dairy farms.

In 2017, a draft of the refugee fiscal report that Trump had ordered was leaked to The New York Times, which posted it. The report was produced by the U.S. Department of Health and Human Services, whose Office of Refugee Resettlement is involved in refugee arrivals and initial integration. Research looked at both refugees and asylees.

Researchers looked at local, state and federal expenditures on refugees — as well as refugees’ tax contributions to those government coffers over the 10 years between 2005 and 2014.

The study found that 8 percent of refugees received Social Security or Social Security Disability benefits compared to 15 percent of the U.S. population. About 12 percent of refugees relied on Medicare benefits compared to 15 percent of the U.S. population.

On the other hand, 21 percent of refugees used SNAP, or food stamps, compared to 15 percent of the U.S. population. But only about 2.3 percent of refugees received TANF benefits, or cash aid, close to the same percentage as the U.S. population generally.

Overall, during the 10-year period, refugees and their non-refugee family members received $326 billion in government benefits and services, 60 percent from the federal government and 40 percent from state and local government. K-12 education accounted for 11 percent of expenditures on refugees. But that K-12 spending was only 0.4 percent of spending on K-12 nationally.

In the end, because of taxes they paid, refugees and their family members contributed more than $343 billion in revenue to federal, state and local coffers. On balance, refugees contributed $63 billion more than they received in benefits from various programs.

“In general,” researchers wrote, “after 10 years of residence those who entered the U.S. as refugees were similar to the U.S. population in terms of income and employment.”

The HHS draft also referenced research produced in various regions.

A 2012 analysis of the Cleveland, Ohio, area credited refugees with the creation of 650 jobs and $48 million worth of economic impact. A 2015 study of the Columbus, Ohio, area found that about 16,600 refugees supported more than 21,200 jobs and added $1.6 billion to the local economy.

Randy Capps of the Migration Policy Institute cautioned against putting too much faith in fiscal studies that zero in on costs alone. For example, the Federation for American Immigration Reform, or FAIR, a group that advocates slashing legal immigration, published a study in 2018 focusing on the first five years of refugee settlement and arguing that “the American taxpayer is being asked to feed, clothe and shelter” people with “few marketable job skills.”

In 2017, the Center for Public Integrity reported that U.S Department of Homeland Security staff were discussing adding an assessment of a refugee applicant’s “skills” to criteria that’s part of the foundation for the vetting process. The skills idea, confirmed by a Homeland Security spokesperson, upset U.S. refugee officers who screen applicants who’ve fled the trauma of war and persecution. It hasn’t gone anywhere.

“The [current] litmus test is: Does the person have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political

Adding a skills test would mark a profound change, Knowles said, for U.S. criteria developed in the wake of World War II, a time when the U.S. and other countries turned away some desperate Jewish refugees.

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A number of things are absolutely clear: 1) refugees and asylees are a huge benefit to the United States from any legitimate perspective; 2) we could easily absorb everyone applying for asylum status right now; 3) there is no “invasion;” 4) the country is not “full;” 5) Trump, Pence, Miller, Cotton, Perdue, and the rest of their “White Nationalist Gang” are liars.

PWS

05-22-19

TRUTH MATTERS: SETTING THE RECORD STRAIGHT: AILA Blasts EOIR’s False & Unethical Anti-Asylum Screed! — “Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions. EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.”

https://www.aila.org/advo-media/aila-policy-briefs/aila-policy-brief-facts-about-the-state-of-our

Policy Brief: Facts About the State of Our Nation’s Immigration Courts May 14, 2019
Contact: Laura Lynch (llynch@aila.org) or Kate Voigt (kvoigt@aila.org)
On May 8, 2019, the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) distributed a document to journalists that contained misleading material related to our nation’s immigration courts.1 The document, which purports to list “myths” and “facts”, is also filled with political rhetoric.2 America’s courts are meant to be impartial, dedicated to fairly and efficiently adjudicating the cases brought before them. Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions.3 EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.
• The immigration court structure is inherently flawed
Unlike many judicial bodies, the immigration courts lack independence from the executive branch because they are administered by EOIR, which is housed under DOJ – the same agency that prosecutes immigration cases at the federal level.4 This inherent conflict of interest is made worse by the fact that immigration judges (IJs) are considered merely government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the U.S. Attorney General (AG), the chief prosecutor in immigration cases.
Because of this structural flaw, the immigration court system has long been vulnerable to political pressure from the executive branch. For example, the courts have been repeatedly subject to “aimless docket reshuffling” based on politically motivated priorities.5 President Obama’s administration prioritized the adjudication of “family unit” cases which EOIR recently determined “coincided with some of the lowest levels of case completion productivity in EOIR’s history.”6 President Trump ordered IJs deployed to detention facilities on the border where they reported that they had very few cases to adjudicate. Over 20,000 cases were rescheduled as a result of the Administration’s deployment.7
• EOIR imposed unprecedented case completion quotas on judges, pressuring them to rush through cases at the expense of well-reasoned decisions
Despite opposition from immigration judges,8 EOIR imposed unprecedented case completion quotas, tying judges’ individual performance reviews to the number of cases they complete.9 Under the new requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.10 A strict time frame for completion of cases can interfere with a judge’s ability to ensure that a person’s right to examine and present evidence is respected, to provide adequate time to obtain an attorney, secure various expert witnesses, and obtain evidence from overseas.11 This kind of rushed, assembly-line justice is unacceptable to impose on IJs who are making important, often life-or-death, decisions.
During a March 7, 2019 congressional hearing, the director of EOIR asserted that several other agencies also utilize “case completion goals.”12 However, other agencies’ goals are used to determine resource allocation, while EOIR’s case completion quotas are tied directly to an IJ’s performance evaluations.13
AILA Doc. No. 19051438. (Posted 5/14/19)

AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the National Association of Immigration Judges (NAIJ) as a “death knell for judicial independence.”14 In fact, recommendations made by an independent third party in a report commissioned by EOIR itself propose a judicial performance review model that “emphasizes process over outcomes and places high priority on judicial integrity and independence.”15
• Scholars have concluded that immigrants represented by attorneys fare better at every stage of the court process
While Federal law guarantees immigrants facing deportation the right to be represented by an attorney, it does not provide immigrants with an attorney at the government’s expense if they cannot afford representation.16 Only 37 percent of all noncitizens and 14 percent of detained noncitizens are represented.17 However, the American Immigration Council has found that “immigrants with attorneys fare better at every stage of the court process” – people with attorneys are more likely to be released from detention during their case, they are more likely to apply for some type of relief, and they are more likely to obtain relief from deportation.18 The consequences for people who face removal without representation are severe: detained immigrants in removal proceedings who lack representation are about ten times less likely to obtain relief.19 Despite statistics that show the assistance of counsel has a significant positive impact on outcomes, thousands of families and unaccompanied children fleeing persecution and violence at home have appeared in immigration court over the years without a lawyer at their side.
Attorneys also help facilitate more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, stated, “when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”20 Recent studies have also confirmed that immigrants with representation are far more likely to comply with court appearance requirements.21 A recent report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) found that, as of December 2017, 97 percent of mothers in immigration court represented by counsel were in compliance with their immigration court obligations over a three year period.22
• The Legal Orientation Program improves judicial efficiency and fundamental fairness
EOIR has operated the Legal Orientation Program (LOP) in immigration detention centers since 2003.23 While not a substitute for legal counsel, LOP is often the only source of basic legal information that assists detained immigrants in navigating a complex court process. In fact, LOP has been proven to increase court efficiency and save taxpayer dollars. A 2012 study commissioned by DOJ demonstrated that the program decreased the average length of time a person is detained by an average of six days, saving approximately $17.8 million each year.24 EOIR’s own website publicly endorsed the LOP program in 2017, stating that “[e]xperience has shown that the LOP has had positive effects on the immigration court process,”25 and an independent report commissioned by EOIR recommended that DOJ “consider expanding know your rights and legal representation programs, such as … LOP.”26 Despite this overwhelming support, DOJ attempted to end the program in April 2018 and removed content on its website that endorsed the program.27 After significant criticism, it rescinded its proposed termination, but continues to undermine the program by releasing flawed evaluations of its efficacy. 28
• Court statistics demonstrate that asylum grant rates vary widely depending on the judge
It is well-documented that the disparity in asylum grant rates is an endemic problem.29 The grant rates for cases vary widely depending on the judge—asylum grant rates are less than 5 percent in some jurisdictions yet higher than 60 percent in others—and give rise to criticism that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.30 EOIR has not taken adequate
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AILA Doc. No. 19051438. (Posted 5/14/19)

corrective action to address this problem and ensure that court proceedings are conducted in a fair and consistent manner. The agency’s inadequate response illustrates the weakness of a court system not overseen by an independent judicial agency whose primary function is to ensure the rule of law, impartiality, and due process in the adjudication of cases.
• Use of video teleconferencing (VTC) undermines the quality of communications during immigration hearings and threatens due process
For years, legal organizations have opposed the use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.31 An empirical study published in the Northwestern University Law Review revealed that detained respondents appearing via VTC were more likely to be deported than those with in-person hearings.32 In April of 2017, a separate EOIR-commissioned report explained that VTC technology does not provide for the ability to transmit nonverbal cues, which can impact an immigration judges’ assessment of an individual’s demeanor and credibility.33 The report concluded that proceedings by VTC should be limited to procedural matters because appearances by VTC may interfere with due process.”34
Additionally, technological glitches such as weak connections and bad audio can make it difficult to communicate effectively via VTC. An EOIR-commissioned study revealed that 29 percent of EOIR staff reported that VTC caused meaningful delay, a finding that is supported by accounts from courts including Omaha, which reported that VTC technology works “sometimes,” Salt Lake City, where observers stated that “technical delays are common,” and New York City, where immigration attorneys describe a VTC connection that “often stops working.”35 While EOIR claims that few cases are continued due to VTC malfunction, in reality, judges are only allowed to record one reason for a case being continued even if VTC issues contribute to a delay, which means that EOIR’s data is far from precise. 36 Despite these concerns, EOIR has expanded its use of VTC for substantive hearings, going as far as to create two immigration adjudication centers where IJs adjudicate cases from around the country from a remote setting.37
• Congress must establish an Article I immigration court system to ensure functioning courts
Congress should conduct rigorous oversight into policies that have eroded the court’s ability to ensure that decisions are rendered in a timely manner and consistent with the law and the Constitution’s guarantee of due process. However, given its political dysfunction, years of underfunding, and inherently flawed structure, our immigration court system must be restructured into an Article I court system in order to restore the most important guarantee of our legal system: the right to a full and fair hearing by an impartial judge.38 For more information, go to www.aila.org/immigrationcourts.
1 EOIR, Myths vs. Facts About Immigration Proceedings, May 8, 2019.
2 The National Association of Immigration Judges (NAIJ) stated that “DOJ’s key assertions under both the “myths” and the “facts” either mischaracterize or misrepresent the facts.” See NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019. Furthermore, twenty-seven retired immigration judges (IJ) and former members of the Board of Immigration Appeals (BIA) deemed the document to be “political pandering” and proclaimed that “American Courts do not issue propaganda implying that those whose cases it rules on for the most part have invalid claims.” Round Table of Former Immigration Judges, EOIR “Myth vs. Fact” Memo, May 13, 2019.
3 Catherine Shoichet, CNN Politics, The American Bar Association says US immigration courts are ‘on the brink of collapse’, Mar. 20, 2019.
4 DOJ, Organization Chart, Feb. 5, 2018.
5 Retired Immigration Judge Paul Schmidt, Speech to the ABA Commission, Caricature of Justice: Stop the Attack on Due Process, Fundamental Fairness, and Human Decency in Our Captive Dysfunction U.S. Immigration Courts!, May 4, 2018; NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
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6 Eric Katz, Government Executive, ‘Conveyer Belt’ Justice: An Inside Look at Immigration Courts, Jan. 22, 2019; EOIR, Tracking and Expedition of “Family Unit” Cases, Nov. 11, 2018
7 National Immigrant Justice Center (NIJC), Internal DOJ Documents Reveal Immigration Courts’ Scramble to Accommodate Trump Administration’s “Surge Courts, Sept. 27, 2017.
8 NAIJ, Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, May 2, 2018.
9 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018; Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018; and EOIR’s Strategic Caseload Reduction Plan, Oct. 23, 2017.
10 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018.
11 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence. See AILA Policy Brief: Imposing Numeric Quotas on Judges Threatens the Independence and Integrity of Courts, Oct. 12, 2017.
12 House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies (116th Congress), Executive Office for Immigration Review, Mar. 7, 2019.
13 In fact, Congress “specifically exempted ALJs from individual performance evaluations as a mechanism to ensure their independence from such measures and protect the integrity of their decisions.”
See NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
14 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges, Oct. 2017.
15 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
16 8 U.S.C. §1362 (West 2018).
17 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016.
18 Id.
19 AILA and the American Immigration Council, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018.
20 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
21 Human Rights First, Immigration Court Appearance Rates, Feb. 9, 2018.
22 Retired Immigration Judge Paul W. Schmidt, Immigration Courts: Reclaiming the Vision, May 2017.
23 The American Immigration Council, Legal Orientation Program Overview, Sept. 2018.
24 DOJ, Cost Savings Analysis – The EOIR Legal Orientation Program, Apr. 4, 2012.
25 The Wayback Machine, EOIR Legal Orientation Program, as of Dec. 24, 2017.
26 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
27 Maria Sacchetti, The Washington Post, Justice Dept. to halt legal advice-program for immigrants in detention, Apr. 10, 2018; The Wayback Machine, EOIR Legal Orientation Program, as of May 5, 2018.
28 U.S. Department of Justice, Opening Statement of Attorney General Jeff Sessions Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Apr. 25, 2018. See also Vera Institute of Justice, Statement on DOJ Analysis of Legal Orientation Program, Sept. 5, 2018.
29 See Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016; See also GAO Report, Asylum Variation Exists in Outcomes of Applications Across Immigration Courts and Judges, Nov. 16, 2016, “For fiscal years 1995 through 2014, EOIR data indicate that affirmative and defensive asylum grant rates varied over time and across immigration courts, applicants’ country of nationality, and individual immigration judges within courts.”
30 AILA Statement, Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration Hearing on “Strengthening and Reforming America’s Immigration Court System,” Apr. 18, 2018.
31 AILA Comments, ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Comments to ACUS, Responds to Taking Steps to Enhance Quality and Timeliness in Immigration Removal Adjudication, Feb. 17, 2012. 32 Ingrid Eagly, Northwestern Law Review, Remote Adjudication in Immigration, 2015.
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33 Booz Allen Hamilton Report on Immigration Courts. In June of 2017, the GAO issued a report raising concerns that, “EOIR has not adopted the best practice of ensuring that its VTC program is outcome-neutral because it has not evaluated what, if any, effects VTC has on case outcomes.”
34 Booz Allen Hamilton Report on Immigration Courts.
35 Booz Allen Report on Immigration Courts; Tom Hals, Reuters, Groups sue U.S. to stop deportation hearings by videoconference in New York, Feb. 13, 2019; Kelan Lyons, Salt Lake City Weekly, Technical Difficulties, Oct. 10, 2018; Beth Fertig, WNYC, Do Immigrants Get a Fair Day in Court When It’s by Video? Sept. 11, 2018.
36 EOIR, Myths vs Facts About Immigration Proceedings, May 8, 2019; NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019.
37 U.S. Department of Justice, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017. See also Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
38 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
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AILA Doc. No. 19051438. (Posted 5/14/19)

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Seems like there is more than enough here for Congress to request that the DOJ Inspector General institute an investigation into ethical abuses and gross mismanagement by McHenry and other EOIR officials who are not only failing to fairly, impartially, and efficiently administer the Immigration Court system, but are also using Government time and resources to spread demonstrable lies and a nativist political propaganda. They also are using these knowingly false narratives to “shift blame” for their mismanagement to the victims: asylum applicants, their attorneys, and NGOs.

BTW, what exactly do the Chief Immigration Judge and the Chairman of the BIA do these days? These supposedly high level (and well-compensated) EOIR Senior Executives responsible for insuring judicial independence and fundamental fairness apparently have disappeared from public view. Have they been reduced to “hall walker” status in the finest tradition of the DOJ (under all Administrations) of “exiling” senior career officials who “don’t fit with the Administration’s political program? ” Perhaps the IG should also check into this.

In any event, the amount of corruption and “malicious incompetence” in EOIR management should make an independent Article I U.S. Immigration Court a legislative imperative!

PWS

05-16-19

ANNA FLAGG @ NY TIMES: More Bad News For White Nationalist Restrictionists: No Evidence Supports Bogus Claim Of Connection Between Undocumented Aliens & Crime! — “They tend to bring economic and cultural benefits to their communities. They typically come to America to find work, not to commit crimes.”

For years, all reputable statistical analyses have shown that the nativist restrictionists’ claim that immigration increases crime is just another White Nationalist myth. Not to be deterred, the nativists shifted to claiming that such studies didn’t break out “undocumented” immigrants as a separate group. Now, The Marshall Project’s data editor Anna Flagg writing in the N.Y. Times debunks that myth with what Trump and his White Nationalists fear most: facts!

https://www.nytimes.com/2019/05/13/upshot/illegal-immigration-crime-rates-research.html

Is There a Connection Between Undocumented Immigrants and Crime?

It’s a widely held perception, but a new analysis finds no evidence to support it.

By Anna Flagg

May 13, 2019

A lot of research has shown that there’s no causal connection between immigration and crime in the United States. But after one such study was reported on jointly by The Marshall Project and The Upshot last year, readers had one major complaint: Many argued it was unauthorized immigrants who increase crime, not immigrants over all.

An analysis derived from new data is now able to help address this question, suggesting that growth in illegal immigration does not lead to higher local crime rates.

In part because it’s hard to collect data on them, undocumented immigrants have been the subjects of few studies, including those related to crime. But the Pew Research Center recently released estimates of undocumented populations sorted by metro area, which The Marshall Project has compared with local crime rates published by the F.B.I. For the first time, there is an opportunity for a broader analysis of how unauthorized immigration might have affected crime rates since 2007.

A large majority of the areas recorded decreases in both violent and property crime between 2007 and 2016, consistent with a quarter-century decline in crime across the United States. The analysis found that crime went down at similar rates regardless of whether the undocumented population rose or fell. Areas with more unauthorized migration appeared to have larger drops in crime, although the difference was small and uncertain.

(Illegal immigration itself is either a civil violation or a misdemeanor, depending on whether someone overstayed a visa or crossed the border without authorization.)

Most types of crime had an almost flat trend line, indicating that changes in undocumented populations had little or no effect on crime in the various metro areas under survey. Murder was the only type of crime that appeared to show a rise, but again the difference was small and uncertain (effectively zero).

For undocumented immigrants, being arrested for any reason would mean facing eventual deportation — and for some a return to whatever danger or deprivation they’d sought to escape at home.

There is no exact count of unauthorized immigrants living in the United States. To create estimates, experts at Pew subtracted Department of Homeland Security counts of immigrants with legal status from the number of foreign-born people counted by the Census Bureau. Many organizations and agencies, including the D.H.S., use this residual estimation method; it is generally considered the best one available. As of 2016, there were an estimated 10.7 million undocumented immigrants nationwide, down a million and a half since 2007.

Jeffrey Passel, a Pew senior demographer, and his team estimated changes in undocumented populations for roughly 180 metropolitan areas between 2007 and 2016. For comparison, The Marshall Project calculated corresponding three-year averages of violent and property crime rates from the Uniform Crime Reporting program, and the change in those rates.

The results of the analysis resemble those of other studies on the relationship between undocumented immigration and crime. Last year, a report by the Cato Institute, a libertarian think tank, found that unauthorized immigrants in Texas committed fewer crimes than their native-born counterparts. A state-level analysis in Criminology, an academic journal, found that undocumented immigration did not increase violent crime and was in fact associated with slight decreases in it. Another Cato study found that unauthorized immigrants are less likely to be incarcerated.

At the more local level, an analysis by Governing magazine reported that metropolitan areas with more undocumented residents had similar rates of violent crime, and significantly lower rates of property crime, than areas with smaller numbers of such residents in 2014. After controlling for multiple socioeconomic factors, the author of the analysis, Mike Maciag, found that for every 1 percentage point increase in an area’s population that was undocumented there were 94 fewer property crimes per 100,000 residents.

More research is underway about the potential effects of undocumented immigration on crime. Robert Adelman, a professor at the University at Buffalo, SUNY, whose group’s research The Marshall Project and The Upshot have previously documented, is leading a team to expand on the Governing analysis. Early results suggest unauthorized immigration has no effect on violent crime, and is associated with lower property crime, the same as Mr. Maciag found.

Preliminary findings indicate that other socioeconomic factors like unemployment rates, housing instability and measures of economic hardship all predict higher rates of different types of crime, while undocumented immigrant populations do not.

Many studies have established that immigrants commit crimes at consistently lower rates than native-born Americans. But a common concern is whether immigrants put pressure on native-born populations in any number of ways — for instance, by increasing job competition — that could indirectly lead to more crime and other negative impacts.

According to Mr. Adelman and his team, however, the impact of undocumented immigrants is probably similar to what the research indicates about immigrants over all: They tend to bring economic and cultural benefits to their communities. They typically come to America to find work, not to commit crimes, says Yulin Yang, a member of the team.

The data suggests that when it comes to crime, the difference between someone who is called a legal immigrant and an illegal one doesn’t seem to matter.

This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for its newsletter, or follow The Marshall Project on Facebookor Twitter. Anna Flagg is a senior data reporter for The Marshall Project.

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Go to the original article at the above link for the accompanying charts and graphs.

PWS

05-15-19

MULTIPLE ORGANIZATIONS “CALL BS” ON EOIR’S “LIE SHEET” — No Legitimate “Court” Would Make Such a Vicious, Unprovoked, Disingenuous Attack On Asylum Seekers & Their Hard-Working Representatives!

Here’s a compendium of some of the major articles ripping apart the “litany of lies and misrepresentations” created by EOIR, America’s most politically corrupt and ineptly run “court” system.

Thanks to the the National Association of Immigraton Judges (“NAIJ”) for assembling this and making it publicly available.

https://www.naij-usa.org/news/setting-the-record-straight

PWS

05-13-19

WASHINGTON POST/ABC POLL: TRUMP’S “CRUEL, MALICIOUS INCOMPETENCE” APPROACH TO ASYLUM HIGHLY UNPOPULAR & INEFFECTIVE: Dems Can Build Support By Strengthening Current Asylum System & Making It Work! — The “Real Face” Of “Border Security” Has Little Or Nothing To Do With Trump’s White Nationalist Rants & Barrage Of Lies!

https://www.washingtonpost.com/politics/2019/04/30/trumps-asylum-changes-are-even-less-desired-than-his-border-wall/

Aaron’s Blake reports for the Washington Post:

President Trump has made immigration crackdown a central focus of his presidency, and a new Washington Post-ABC News poll shows a growing number of Republicans and Democrats agree that the worsening situation on the border is a “crisis.”

But Trump is offering a solution that relatively few Americans like. In fact, his newly announced decision to make it harder to seek asylum is even less popular than his border wall national emergency, according to the same poll.

The Post-ABC poll shows that 30 percent of Americans favor making it more difficult for those seeking asylum in the United States to obtain it. About as many — 27 percent — favor making it easier, while 34 percent want to leave the process as-is.

Even among Republicans, just 46 percent favor making it more difficult. Among the few groups where a majority support the idea are conservative Republicans (51 percent) and those who approve of Trump (53 percent). Even in the latter group, though, 29 percent say leave the system as-is, and 11 percent want to make it easier to seek asylum.

Late Monday, the White House announced that it was proposing a new fee for asylum seekers. It is also seeking to prevent those who cross the border illegally from obtaining work permits, and it set the ambitious goal of requiring asylum cases to be decided within 180 days.

The fee would put the United States out of step with most of the world, as the vast majority of countries do not require asylum seekers to pay any fee. Given the dire circumstances many asylum seekers come from, including economically, critics worry the fee would prove a barrier to those with legitimate claims.

There has been a huge uptick in the number of asylum seekers in recent months. More than 103,000 immigrants crossed the U.S.-Mexico border last month, and 60 percent of them were Central American families who have requested asylum. The system has become overburdened, and even critics of Trump’s immigration approach acknowledge the situation must be addressed.

[The surge in migrants seeking asylum, explained]

But saying there’s a problem and saying this is the solution are two different things. Trump has repeatedly argued that asylum seekers are exploiting weak U.S. immigration and asylum laws and that many of them are criminals and gang members who are told to claim asylum even though they don’t need it. He has called the concept of asylum “a big con job.” Yet, even as the situation at the border is exacerbated by a growing number of asylum seekers, Americans are still clearly uncomfortable with increasing the burdens on them.

The proposed changes will likely take some time to implement, if they ever are. Attorney General William P. Barr has 90 days to come up with a plan, and the move will undoubtedly be challenged in court.

Because the poll was conducted before Trump’s announcement, it didn’t test the specific details of his proposal. A fresh debate about the specific proposals could feasibly change the levels of public support. But Trump has been pushing the idea that asylum seekers are exploiting the system for months, and it doesn’t seem to have led to a chorus of support within his base for tightening the rules.

The level of support is even less than the backing for his national emergency to build a border wall. The Post-ABC poll shows just 34 percent of Americans favor that, while 64 percent oppose it. But at least on that proposal, Trump’s base is strongly onboard. Seventy percent of Republicans back the border wall national emergency.

Trump’s overall approval on immigration stands at 39 percent, with 57 percent disapproving, according to The Post-ABC poll.

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Bottom line: On asylum, the public essentially is split in thirds among 1) more generous; 2) less generous; and 3) current system. That means that neither radical retractions nor radical expansions of the current system are likely to be achievable at present. That opens the door for the Dems to put together a powerful coalition to strengthen and fairly and efficiently administer the current asylum system.

It’s not rocket science — more like basic governing competence. Here are the elements:

Establish an independent Article I U.S. Immigration Court;
Invest in representation of asylum seekers;
Add more Asylum Officers, Immigration Judges, and Port of Entry Inspectors;
Provide comprehensive basic and continuing training for all asylum adjudicators from experts in asylum law;
Use prosecutorial discretion (“PD”) to reduce Immigration Court backlogs to allow Immigration Judges to concentrate on timely hearings for recently arrived asylum cases;
Reduce immigration detention;
Hire more anti-smuggling, undercover, and anti-fraud agents for DHS;
Invest in improving conditions in “sending” countries in Central America.

It would 1) cost less than the money Trump is now squandering on “designed to fail” enforcement and detention efforts; 2) create a political constituency for funding and future improvements; 3) protect human rights; and 4) give the U.S the substantial benefits of integrating asylees and their talents into our society and economy through the legal system. Those found ineligible could also be removed in a humane and timely manner after receiving due process.

Not surprisingly, we just learned today that Trump’s “Malicious Incompetence Program” at the border has run out of money and is requesting another $4.5 billion from Congress. https://www.washingtonpost.com/business/economy/white-house-asks-congress-for-45-billion-in-emergency-spending-for-border/2019/05/01/725e2864-6c23-11e9-8f44-e8d8bb1df986_story.html

Now is the time for House Dems to hang tough on demanding some real border security for the money — in plain terms, require the money to be spent in exactly the ways described above, not on more of Stephen Miller’s White Nationalist, anti-asylum schemes and gimmicks.

Additionally, there should be specific prohibitions on: 1) wall and barrier building beyond what Congress has already authorized; 2) any additional spending for detention of non-criminal asylum applicants beyond the time needed to give them credible fear interviews; 3) family detention; 4) “tent cities;’ 5) “Remain in Mexico,” 6) “metering” of asylum applicants at Ports of Entry; 6) charging fees for asylum applications; 7) denial of work authorization for non-frivolous asylum applicants; 8) denial of reasonable bond to asylum applicants unless individually determined to be “threats to the community;” and 9) use of the military except to assist in providing humanitarian aid. There should also be a specific mechanism for accounting and constant Congressional oversight on how the Administration spends the extra funding.

PWS

05-01-19

INSIDE TRUMP’S IMMIGRATION KAKISTOCRACY WITH TRAC: “Malicious Incompetence” Reigns As DHS & EOIR “Fly Blind” On Asylum System & Are Now Hiding Data From Public To Cover Up Own Malfeasance!

https://urldefense.proofpoint.com/v2/url?u=https-3A__trac.syr.edu_immigration_reports_556_&d=DwMFAg&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=5P7-gWBTtD9g2EDR8U0pyQ5iVCpXWh5b63SXxj7pZPM&m=7PPq-dt8e4s-LLVyEA4t_Pm56qGq-luz6SZ4sXKnbvY&s=04Kf565VLlHoKvcIpERtb5vE2fKENyBuhZ-26wZhkmA&e=

Data Lacking on Why Immigration Courts Not Overwhelmed with Family Cases

Given reports on the number of families arrested at the border, why aren’t there more of these cases before the Immigration Courts? No one seems to know precisely what happens to each family after members are arrested by the Border Patrol and at ports of entry. In general, DHS itself is responsible for providing “notices to appear” to those arrested, and DHS agencies are also responsible for filing copies of these NTAs, where appropriate, with the Immigration Courts. This is supposed to occur whether or not families remain detained.

NTAs are the “notices to appear” that are given individuals providing official notification that the government is seeking to deport them. DHS agencies – including Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and Citizenship and Immigration Services (USCIS) – have the authority to issue NTAs, and to file them as needed with the Immigration Courts. Although CBP initially arrests these families at the border and at ports of entry, ICE becomes involved if longer periods of detention are needed. Asylum officers at USCIS also enter the picture as they are responsible for conducting “credible fear” and “reasonable fear” reviews for those seeking asylum.

It appears that the government itself does not actually know what happens to those it arrests at the border. It admits it lacks the ability to reliably follow cases when they pass from one agency of DHS to another – such as CBP to ICE and to USCIS – or to connect those cases when jurisdiction has been passed to the Department of Justice (DOJ) where the Immigration Courts are located. This appears to parallel the difficulties the government has had in reuniting children separated from their parents because separate record systems didn’t pass along relevant information.

In many respects it appears that the Administration continues to be flying blind. Clearly, if agency officials don’t have the data they need, they will be unable to effectively manage the situation, or even to accurately identify what additional personnel and other resources are most urgently needed. They also will be unable to effectively assess the impact of alternative policy choices that may be proposed.

In addition, the public is not being providing sufficient access to the data that is being recorded. A new barrier to public access arose just this month when the Department of Justice decided to review what information was released under the Freedom of Information Act. It stopped providing TRAC with particular case-by-case Immigration Court records tracking the processing of asylum and related applications for relief. Information both on historical as well as new asylum applications are now being withheld during this review. Other vital data TRAC had been routinely receiving and making publicly available on its website are also now being withheld.

As a direct result, TRAC is currently unable to update either its asylum web query tool, or its access tool on representation in Immigration Court by state and county. In addition, several of the fields in its tool that allows the public to drill into details on deportation proceedings, are no longer available.

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Attacks on Due Process fueled by “malicious incompetence” are the real “immigration emergency.” And, unlike the “fake asylum/border crisis” staged by the Kakistocracy, this one is a threat to our national security. Why isn’t anyone being held accountable here?

PWS

04-25-19

THE TRUMP ADMINISTRATION LIES, BUT TRAC STATS DON’T: TRAC Exposes Trump’s False Narratives About Families & “Sanctuary Cities” – No Families Are Not “Overwhelming” The System & Most Of Them Already Have Been Absorbed By So-Called “Sanctuary Jurisdictions!”

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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE

Despite the concern about the number of families arriving at the border seeking asylum, families continue to remain a minor proportion of new cases arriving at the Immigration Courts each month. For example, during March 2019, just 18.7 percent of the new cases that came in involved these families. Despite this, the court’s backlog continues to climb and reached a new historic high of 869,013 cases on its active docket at the end of March.

After being released in border communities, families seldom remain there. Since September 2018, 32 courts in 24 states have received at least 100 new family cases. Over half of these cases are before courts headquartered in sanctuary cities. Among the top ten courts where family cases are located, six are usually classified as sanctuary jurisdictions. These courts include those in New York City, San Francisco, Los Angeles and Chicago.

These results are based upon the latest court records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data were obtained from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act (FOIA).

Full data on what happens to families after they are arrested at the border, however, are not available. The Justice Department has now stopped providing TRAC with information needed to track the processing of asylum and related applications for relief. Information both on historical as well as new asylum applications are now being withheld during this review.

In addition, the government admits it lacks the ability to reliably follow cases when they are transferred from one agency to another. Without this information, agency officials are unable to effectively manage the situation. This appears to parallel the difficulties the government has had in reuniting children separated from their parents because separate record systems didn’t pass along relevant information.

For the full report, go to:

https://trac.syr.edu/immigration/reports/556/

In addition, a number of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through March 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
https://trac.syr.edu

———————————————————————————
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

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Senator Ron Johnson (R-WI), the DHS “Advisory Committee,” and other Trump Apologists to the contrary, neither arriving families nor the current asylum law are the problems (except that the Administration fails to apply the current asylum law and procedures fairly). No, the problem is the “malicious incompetence” of the Trump kakistocracy in the White House, at DHS, and in the DOJ.

Democrats must take care not to be “stampeded” by Trump’s bogus White Nationalist narrative (even parroted by some members of the “mainstream press”) into changing asylum laws to further screw asylum seekers. Rather they need to stand firm on insisting that the Trump Administration follow existing laws on asylum, protection of unaccompanied minors, and other forms of humanitarian protection.

There isn’t going to be a “grand bargain’ on immigration until the Trump kakistocracy and its enablers are removed from power. And “border security” does not require a reduction or truncation of the rights of migrants and asylum seekers as a “trade-off” for legalization programs.

Actually, clearing intentionally and maliciously overcrowded Immigration Court dockets of cases of individuals whose removal actually hurts the U.S. and figuring out a way of getting more of these folks we need into the legal immigration system right off the bat (instead of forcing them into the “immigration black market”) are essential parts of any border security program.

What real border security does require is a competent focus on making the asylum adjudication system and the Immigration Court system function in accordance with protection laws, Due Process, and fundamental fairness. A fair, timely, and efficient Immigration Court system serves everyone’s needs, including DHS enforcement.

Fair, impartial, and independent judges who are not controlled by politicos with a White Nationalist agenda would be the basic starting point. It also includes a fair application of the law to include gender based persecution and persecution by gangs and other entities exercising quasi-governmental authority in “failed states.” Indeed, if any “clarifications” are made in asylum law it should be to specifically write these interpretations into the refugee definition as was done by a bipartisan group of legislators in the past who were dissatisfied with the administrative failure to include victims of persecution in the form of coercive family planning in the refugee definition.

PWS

04-21-19

THE HILL: NOLAN ON THE CURRENT BORDER CRISIS

Will Democrats be held accountable for diverting attention from border crisis when there was time to fix it?

By Nolan Rappaport

As Chairman of the Committee on Homeland Security, Congressman Bennie G. Thompson (D-Miss.) must know what is happening at the border. Yet he asserted at a recent hearing that President Donald Trump issued a national emergency declaration on the basis of a “nonexistent emergency” at the border.

Thompson claimed that when it comes to border security, the Trump administration is misleading the American people. Maybe, but I watched a video of the hearing and it seemed to me that the Democrats are the ones who are misleading the American people.

According to the testimony of the hearing’s only witness, DHS Secretary Kirstjen Nielsen, the country is facing a very real humanitarian and security crisis. Uncontrolled illegal migration is posing a serious and growing risk to public safety, national security, and the rule of law.

She is not the first DHS Secretary to make that claim. Every DHS Secretary since the Department’s inception has sounded the alarm about our unsecured border.

Nielsen testified that DHS expects to apprehend more migrants crossing the border illegally in the first half of fiscal 2019 than it did in the entirety of fiscal 2017, and the numbers are rising. This, however, is not the only problem.

There also has been a change in who is making the illegal crossings.

Historically, illegal crossers were predominantly single adult males from Mexico who generally could be removed within 48 hours if they had no legal right to stay. Now, more than 60 percent of them are family units and unaccompanied alien children.

The detention facilities were intended to be short-term processing centers that would hold adult men for 72 hours or less. They are not suitable for lengthy detentions of women and children.

Read more at https://thehill.com/opinion/immigration/435994-will-democrats-be-held-accountable-for-diverting-attention-from-border

Published originally on The Hill.

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Please go on over to The Hill at the link to read Nolan’s complete article.

Based on EOIR’s own statistics, the actual overall 2018 asylum grant rate on the merits in Immigration Court was 36.7%.
The actual merits asylum grant rates for 2018 for applicants from El Salvador, Honduras, and Guatemala were 23%, 20% and 18% respectively. https://immigrationcourtside.com/2018/12/11/upi-analysis-of-latest-eoir-asylum-stats-actually-shows-that-many-from-northern-triangle-particularly-el-salvador-have-valid-claims-for-protection-but-sessionss-political-actions-and-contr/
There is little actual risk to releasing families who apply for asylum pending Immigration Court hearings. Most released on “alternatives to detrention” appear for their hearings, regardless of expected outcome. And, for those represented by counsel the appearance rates are very high — over 90%. https://www.washingtonpost.com/news/politics/wp/2018/07/11/how-big-a-risk-is-it-to-release-migrant-families-from-custody-before-evaluating-asylum-claims/
The Trump Administration has manipulated both the asylum legal system and asylum statistics in an attempt to prove their false narrative about widespread fraud and abuse. Indeed, it’s notable that even with all these political machinations and roadblocks to fair asylum adjudication, approximately 20% from the Northern Triangle succeed — certainly a significant number. Moreover, many of those who fail actually face danger if returned — they just can’t fit it within our somewhat arcane asylum system. Failing to be granted asylum is not an indication of fraud and has little or nothing to do with our obligation to provide fair and unbiased asylum adjudications consistent with Due Process. https://immigrationcourtside.com/2019/02/15/heidi-altman-heartland-alliance-how-eoir-other-trump-toadies-lie-distort-statistics-to-support-a-white-nationalist-immigration-agenda/
Something that jumps out: those who are represented succeed at a significantly higher rate, understand the system better, and are highly likely to appear. Therefore, the single most cost efficient and obvious measure to take would be providing funding for universal representation of asylum seekers. It’s much cheaper than cruel, expensive, and unnecessary “civil” detention and walls that will have no effect on the current rule flow of asylum seekers. And, as more cases are granted the less necessary it becomes for DHS to waste court time by contesting every case and the more the “problem of removals” diminishes. Those granted asylum don’t have to be removed or monitored — they can actually go to work and begin contributing to our society.
Addressing the causes of the human rights debacle in the Northern Triangle would also be more helpful, logical, and cost effective in the long run than more gimmicks and futile attempts to solve a refugee situation unilaterally at the “receiving” end by “designed to fail” enforcement efforts, while ignoring or intentionally aggravating the causes of the refugee flow.

PWS

03-28-19

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019

ASSOCIATION OF DEPORTATION DEFENSE ATTORNEYS (“ADDA”)

NEW YORK CITY

MARCH 21, 2019

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT”

PAUL WICKHAM SCHMIDT

U.S. IMMIGRATION JUDGE (RETIRED)

Good evening. Thanks so much for coming out tonight. As you know, I’m retired, so I no longer have to give my famous, or infamous, “super-comprehensive disclaimer.” However, I do want to hold my fellow panelists, ADDA, and anybody else of any importance whatsoever “harmless” for my following remarks.

They are solely my views, for which I take full responsibility. That’s right, no party line, no “bureaucratic doublespeak,” no BS. Just the truth, the whole truth, and nothing but the truth, of course as I define truth.

In my brief “5-4-1 program,” I’m going to tell you five horrible problems infecting justice and Due Process in today’s U.S. Immigration Courts; 4 needed reforms, and one solution.

First, the problems, with which I’m sure most of you are painfully familiar. This isn’t a “court system” as any right-thinking person would envision it.

First, unlike any normal court system, the chief prosecutor, the Attorney General selects, directs, and “supervises” the “judges.” Not surprisingly, over the last decade, over 90% of the judges have come directly from government or prosecutorial backgrounds. Well-qualified candidates from private practice, NGOs, and academia have effectively been excluded from participation in today’s immigration judiciary. As part of his “improper influence” over the Immigration Courts, the Attorney General has imposed, over the objection of all judges I’m aware of, demeaning and counterproductive “production quotas” that elevate productivity and expediency over quality, Due Process, and fundamental fairness.

Second, notwithstanding that, according to the Supreme Court, “everything that makes life worth living” might be at issue in Immigration Court, there is no right to appointed counsel. Therefore, DOJ has taken the absurd position that infants, toddlers, and others with no understanding whatsoever of our complicated legal, asylum, and immigration systems are forced to “represent themselves” in life or death matters against experienced ICE Counsel. The Government disingenuously claims that this complies with Due Process.

Obviously, these first two factors give the DHS a huge built-in advantage in removal proceedings. But, sometimes that isn’t enough. Somehow, despite the odds being stacked against them, the individual respondent or applicant prevails. That’s when the “third absurdity” comes in to play.

The chief prosecutor, the Attorney General, can reach into the system and change any individual case result that he or she doesn’t like and rewrite the immigration law in DHS’s favor through so-called “certified precedents.” As you know, former Attorney General Sessions, a committed lifelong xenophobe and the self-proclaimed “king of immigration enforcement” exercised this authority often, more than the preceding two Attorneys General over the eight years they served. Sometimes he intervened even before the BIA had a chance to rule on the case or over the joint objections of both the individual and the DHS.

Fourth, this system operates under an incredible 1.1 million case backlog, resulting largely from what we call “Aimless Docket Reshuffling” or “ADR,” by DOJ politicos and their EOIR underlings. This largely self-created backlog continues to grow exponentially, even with a significant increase in judges, without any realistic plan for backlog reduction. In other words, under the “maliciously incompetent” management of this Administration, more judges has meant more backlog.

Even more disgustingly, in an attempt to cover up their gross incompetence, DOJ and EOIR have attempted to shift the blame to the victims — asylum applicants, migrants, their hard-working often pro bono or low bono lawyers, and the judges themselves. Sophomoric, idiotic non “solutions” like “deportation quotas for judges,” limitations on legitimate continuances, demeaningly stripping judges of the last vestiges of their authority to manage dockets through administrative closing, and mindlessly re-docketing cases that should remain off docket have been imposed on the courts over their objections.

The result has been an increase in “Aimless Docket Reshuffling” the only thing that DOJ politicos and EOIR bureaucrats seem to excel in. How many of YOU have been victims of ADR?

Fifth, the Administration, DOJ, and EOIR use so-called “civil immigration detention” mostly in absurdly, yet intentionally, out-of-the-way locations, to limit representation, coerce migrants into abandoning claims or appeals, and supposedly deter future migration, even through there is scant evidence that abusive detention actually acts as a deterrent. This is done with little or no effective judicial recourse in too many cases. Indeed a recent TRAC study shows neither rhyme nor reason in custody or bond decisions in Immigration Court, even in those cases where the Immigration Judges at least nominally had jurisdiction to set bond.

Now, I’ve told you how due process and fairness are being mocked by DOJ and EOIR in a dysfunctional Immigration Court system where judges have effectively been told to act as “DOJ attorneys” carrying out the policies of their “partners” in DHS enforcement, supposedly a separate party to Immigration Court proceedings but now “driving the train.”

Here are the four essential reforms. First, and foremost, a return to the original “Due Process Focus” of the Immigration Courts: through teamwork and innovation be the world’s best courts guaranteeing fairness and Due Process for all. DOJ politicos and EOIR bureaucrats must be removed from their improper influence over this system that has turned it into a tool of DHS enforcement. Everything done by the courts must go through a “Due Process filter.”

Second, replace the antiquated, inappropriate, bloated, and ineffective “Agency-Style Structure” with a “Court-Style Structure” with sitting judges rather than DOJ politicos and EOIR bureaucrats in charge. Court administration should be decentralized through local Chief Judges, as in other systems, appointed competitively through a broad-based merit system and required to handle a case load. Sitting judges, not bureaucrats, must ultimately be in charge of administrative decisions which must be made in a fair and efficient manner that considers the legitimate needs of DHS enforcement, along with the needs of the other parties coming before the court, and results in a balanced system, rather than one that inevitably favors DHS enforcement over Due Process, quality, and fairness.

Third, create a professional administrative office modeled along the lines of the Administrative Office for U.S. Courts to provide modern, effective judicial support and planning. The highest priorities should be implementing a nationwide e-filing system following nearly two decades of wasted and inept efforts by EOIR to develop one, efforts that have once again been put “on hold” due to mismanagement. A transparent, merit-based hiring system for Immigration Judges, with fair and equal treatment of “non-government” applicants and a system for obtaining public input in the process is also a must. Additionally, the courts must be redesigned with the size of the dockets and public service in mind, rather than mindlessly jamming a 21st century workload into “mini-courts” designed for a long bygone era.

Fourth, a real Appellate Division that performs as an independent court, must replace the “Falls Church Service Center” a/k/a the BIA. The crippling Ashcroft purge-related bogus “reforms” that turned the BIA into a subservient assembly line must be eradicated. The BIA is a so-called “deliberative body” that is far removed from the public it serves and no longer deliberates in a publicly visible manner. The Appellate Division, not politicos and bureaucrats, must be responsible for promulgating precedents in controversial areas, insuring that the generous standards set forth in Cardoza-Fonseca and Mogharrabi are made realities, not just lip service, and reining in wayward judges, the worst of whom have turned some areas into veritable “asylum and due process free zones” resulting in loss of public confidence as well as denial of Due Process and unfair removals.

Some will say that these reforms only deal with two of the five glaring problems — prosecutorial control and political interference. But, an independent, judge-run, Due Process focused U.S. Immigration Court where judges control their own dockets free from political interference and bureaucratic incompetence will be able to work with both private entities and the DHS to solve the problems leading to lack of representation, “Aimless Docket Reshuffling” and backlog building, and abusive use of immigration detention.

No, all problems that have been allowed to fester and grow over decades of calculated indifference and active mismanagement won’t be solved “overnight.” Additional legislative fixes might eventually be necessary. But, fixing Due Process is a prerequisite that will enable other problems and issues to be constructively and cooperatively addressed, rather than just being swept under the carpet in typical bureaucratic fashion.

So, now the “One Solution:” Congress must create an independent Article I U.S. Immigration Court. That’s exactly what the ABA Commission on Immigration recommended in a comprehensive study and report released yesterday.

Thus, the ABA joins the FBA, AILA, and the NAIJ, all organizations to which I belong, in recommending an Article I legislative solution. Significantly, after watching this Administration’s all out assault on Due Process, common sense, truth, the rule of law, human decency, and best practices, the ABA deleted a prior “alternative recommendation” for an independent agency within the Executive Branch. In other words, we now know, beyond any reasonable doubt, that the Executive Branch is both unwilling and unable to run an independent court system in accordance with Due Process.

I highly recommend that you read the comprehensive ABA report in two volumes: Volume I is an “Executive Summary;” Volume II contains the “Detailed Findings.” You can find it on the ABA website or on immigrationcourtside.com my blog, which, of course, I also highly recommend.

In closing, we need change and we need it now! Every day in our so-called “Immigration Courts” Due Process is being mocked, fundamental fairness violated, and unjust results are being produced by a disastrously flawed system run by those with no interest in fixing it. Indeed, one of the stunning recommendations of the ABA is that no further judges be added to this totally dysfunctional and out of control system until it is fixed.

As the great Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.” Tell your elected representatives that you’ve had enough injustice and are sick and tired of being treated as actors in a repertory company specializing in “theater of the absurd” masquerading as a “court system.” Demand Article I now!

Thanks for listening! Join the New Due Process Army, do great things, and Due Process Forever!

(03-21-19)

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

The horror stories from those actually attempting to practice in the NY Immigration “Courts,” the examples of “Aimless Docket Reshuffling” (“ADR”) from my friend, “Our Gang” colleague, and fellow panelist Retired U.S. Immigration Judge Patty McManus, and pressing need for an independent Article I Court to replace this dishonest and dysfunctional mess described by fellow panelist NY Attorney Jake LaRaus, of Youman, Mateo, & Fasano were most compelling.

Recurring complaints from the audience were the unequal treatment of private attorneys and DHS Counsel, the glaringly inappropriate deference shown by some Immigration Judges to DHS, and the unwillingness of some judges to enforce rules against the DHS. In other words, many of the things that EOIR originally supposed to “cure” are now “back in spades.” Everyone echoed the theme that this is a system in regression, where things that “worked” at one time have now been intentionally disabled by DHS and EOIR.

Independence and competent, professional, apolitical judicial management by judges would go a long way toward reducing today’s
Government-created backlogs. The problem is definitely not, as some would claim, the number of asylum seekers. Indeed legitimate asylum seekers all over this system who have been waiting years for their cases to be heard and who have time and time again been the victims of “ADR” and politicized meddling with the legal standards are among the many victims of this broken system.

We should all be ashamed of this disgraceful perversion of our Constitution and grotesque waste of Government money going on every day. The solution isn’t “rocket science;” it’s Article I. An achievable idea “whose time has come.”

PWS

03-22-19

TRAC STATS EXPOSE ANOTHER TRUMP ADMINISTRATION LIE: “Newly Arrived Families Claiming Asylum” ARE NOT Causing The Immigration Court Backlog – That Backlog Was A Well-Established Product Of Gross Mismanagement & “Aimless Docket Reshuffling” Over The Last Three Administrations But Aggravated By This Administration’s “Malicious Incompetence” – Recently Arrived Families Are Only 4% Of The Pending Cases!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASEThe Immigration Court backlog continues to rise. As of February 28, 2019, the number of pending cases on the court’s active docket topped eight hundred and fifty-five thousand (855,807) cases. This is an increase of over three hundred thousand (313,396) pending cases over the backlog at the end of January 2017 when President Trump took office. This figure does not include the over three hundred thousand previously completed cases that EOIR placed back on the “pending” rolls that have not yet been put onto the active docket.

Recent family arrivals now represent just 4 percent of the current court’s backlog. Since September 2018 when tracking of family units began, about one out of every four newly initiated filings recorded by the Immigration Court have been designated by DHS as “family unit” cases. The actual number of families involved were less than half this since each parent and each child are counted as separate “court cases” even though many are likely to be heard together and resolved as one consolidated family unit.

There has been no systematic accounting of how many cases involving families arriving at the border will involve Immigration Court proceedings in their resolution. Families arriving at the border do not automatically have the right to file for asylum in Immigration Court. Thus far, the number of families apprehended by the Border Patrol or detained at ports of entry dwarf the actual number of these cases that have made their way to Immigration Court.

For further details, see the full report at:

https://trac.syr.edu/immigration/reports/551

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through February 2019. For an index to the full list of TRAC’s immigration tools go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse

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

Remember, folks, the next time you hear the Administration’s “professional liars” like Kirstjen Nielsen engage in bogus “hand wringing” and call for crackdowns on asylum applicants, their lawyers, and drastic changes to asylum law — she is covering up and shifting the blame for grossly incompetent management of the asylum program and the Immigration Courts by this Administration. “Victim blaming and shaming” — a staple of the Trump Kakistocracy — is about as low as it goes.

While laws can always be improved — for example an Article I U.S. Immigration Court, adding gender-based asylum to the “refugee” definition, supporting legal representation for arriving asylum seekers, and increasing the number and initial jurisdiction to grant asylum of the Asylum Officers should be “bipartisan no brainers” — the real problem here is not the law!

No, it’s the unwillingness of this Administration to follow laws protecting refugees, allow for robust “out of country processing” of refugees from Central America, and eliminate anti-asylum, anti-Latino, and anti-female bias from our asylum adjudication system that has created a “self-constructed crisis.”

Insist that this Administration take responsibility for their “designed to fail,” White Nationalist, restrictionist policies, improve performance, and administer refugee and asylum laws fairly, impartially, and in accordance with Due Process under our Constitution.

Under no circumstances should the already far too limited rights of asylum seekers and migrants to receive fair, honest, and humane treatment in accordance with constitutional Due Process be reduced as this Administration is always disingenuously seeking. And the money being illegally diverted and wasted on a semi-nonsensical “Wall” could and should much better be spent on improving our current asylum system and making it work — without any more illegal “gimmicks” such as attempting to rewrite the statutes by regulation, the bogus and ill-conceived “Migrant Protection Protocols,” and “slow walking” the applications of those who line up patiently to apply for asylum at legal ports of entry.

PWS

11-20-19

EOIR DIRECTOR McHENRY TRIES TO EXPLAIN TRASHING OF DUE PROCESS TO SKEPTICAL HOUSE DEMS — DOJ Leadership Has Turned “Courts” Into “A DMV For Deportation,” Says Chairman Jose Serrano (D-NY)!— Many Cases From Trump Shutdown Still “MIA” While Lives Hang In The Balance!

https://www.cbsnews.com/news/immigration-court-government-shutdown-immigrants-waiting-for-cancelled-hearings-rescheduled-2019-03-11/

Kate Smith reports for CBS News:

Immigration courts are still wading through the disruptions caused by the government shutdown, which closed the courts and effectively cancelled between 50,000 and 95,000 hearings in December and January.

Many immigrants are still waiting to have those hearings rescheduled, James McHenry, the director of the Executive Office for Immigration Review which oversees the nation’s immigration courts, told lawmakers during a hearing last week. “The courts are in the process of rescheduling those, they’ve been working overtime since the shutdown ended to get that done,” McHenry said.

Congressman Jose Serrano, who chaired the hearing, called the delay “deeply problematic,” in an email to CBS News. The nation’s immigration courts reopened on January 28 after being closed for over a month during the partial government shutdown.

“It is ironic that this Administration’s obsession with building a wall only increased the number of immigrants in limbo, aggravating an already serious crisis,” said Serrano, who represents New York’s 15th district. “There needs to be a serious effort to reschedule these hearings quickly”

Although McHenry estimated that 50,000 immigration cases were cancelled during the shutdown, others say the number could be nearly double that. According to Syracuse University’s TRAC, 80,051 hearings during the shutdown were either outright cancelled or had their status left unchanged — the hearing date simply came and went without acknowledgement, leaving affected migrants to wonder what comes next.

TRAC said the number of cancelled cases rises to more than 94,000 when it includes other factors, like “Docket Management” or “Immigration Judge Leave.”

Many hearings scheduled for the week after the government reopened were also postponed as court clerks waded through over a month’s worth of filings that hadn’t been touched during the shutdown. Rather than processing those documents, court administrators in Charlotte, North Carolina, for example, threw them into brown cardboard boxes for clerks to deal with once the court opened, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina.

The immigration court system, which is overseen by the Department of Justice, handles a range of cases involving non-citizens, including issuing green cards and ruling on asylum claims. The courts also serve as a necessary step toward temporary Social Security cards — needed for work permits and driver’s licenses — making hearings intensely important for immigrants.

The Executive Office of Immigration Review declined to comment on the status of the courts after the shutdown.

CBS News spoke with six immigration attorneys, all of which have at least one client whose cancelled case hasn’t yet been rescheduled. Many of the hearings that were have yet to be rescheduled are for migrants seeking asylum, a legal form of immigration for people fleeing persecution and threats in their home country. One immigrant was waiting on a final hearing on their asylum case, a decision that would determine whether she gets to stay in the United States or be deported.

“The impact on the client is just not knowing,” said McKinney.

The cancellations have also added to the system’s record-high case backlog, which McHenry estimated to be 850,000 during Thursday’s hearing. Once the courts have fully realized the impact from the shutdown, immigration advocates predict it will get even bigger.

For the immigrants with cancelled hearings, getting back in front of a judge could take years. At the Newark, New Jersey immigration court, some cancelled hearings have been penciled in as far back as August 2021, said Alan Pollack, an immigration attorney in New Jersey, in an interview with CBS News. In Houston, the immigration court begun issuing dates in 2022, said Ruby Powers, an immigration attorney.

“We’re getting a bit used to things taking a while and a dose of chaos,” Powers said.

First published on March 11, 2019 / 12:29 PM

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

Here’s Subcommittee Chairman Jose Serrano’s (D-NY) “spot on” statement about the DOJ’s “dissing” of Due Process at EOIR.

https://appropriations.house.gov/news/press-releases/chairman-serrano-statement-at-hearing-on-executive-office-for-immigration-0

Chairman Serrano Statement at Hearing on Executive Office for Immigration Review

March 7, 2019

Press Release

Congressman José E. Serrano (D-NY), Chair of the Commerce, Justice, Science and Related AgenciesAppropriations Subcommittee, delivered the following remarks at the Subcommittee’s hearing on the Executive Office for Immigration Review:

The subcommittee will come to order.

For our second hearing of the year, today we welcome James McHenry, the Director of the Executive Office for Immigration Review, or EOIR. EOIR primarily functions as our nation’s immigration court system, where it administers and adjudicates our nation’s immigration laws. Thank you for being with us, Director McHenry.

I wanted to hold this hearing because I have deep concerns about how our nation’s immigration courts are operating. Some of those concerns are longstanding, while others have been exacerbated by the decisions of the Trump Administration.

Our nation’s immigration courts handle a wide variety of immigration-related claims, from removal proceedings to asylum claims. These are complex, nuanced proceedings that require time, understanding, and care. In many cases, the consequence—removal from this country—is so severe that we must have significant due process to ensure that no one’s rights are violated in an immigration court proceeding.

Unfortunately, these concerns are increasingly being shoved aside. This, in part, is due to the enormous, and growing, backlog of pending cases before the courts, which is now more than 1 million cases, according to the Transactional Records Access Clearinghouse at Syracuse University. That growth is largely due to the significant increase in immigration enforcement efforts over the past 15 years, which has not been followed by a similar growth in the immigration court system. Although this subcommittee has included significant increases in immigration judge teams for the past two fiscal years, the backlog has actually increased under the Trump Administration. This situation was worsened by the recent government shutdown.

The reasons for that are sadly clear. The leadership at the Justice Department has attempted to turn our immigration courts into a sort of deportation DMV– where immigrants get minimal due process on their way out the door. This Administration has chosen to: impose quotas on immigration judges to limit case consideration regardless of complexity; limit the ways in which immigrants can make valid claims for asylum; increase the use of videoconferencing to reduce in-person appearances; and undermine the discretion of immigration judges to administratively close cases, among many other things. Ironically, these choices, supposedly aimed at efficiency, have actually increased the backlog.

I believe our immigration courts should strive to be a model of due process. A couple of bright spots in that effort are the Legal Orientation Program and the Immigration Court Help Desk, both of which help to better inform immigrants about their court proceedings. We should seek to expand such programs.

Despite these efforts, in our current system, an estimated 63 percent of immigrants do not have legal counsel. We’ve all read stories about children, some as young as 3 years old, being made to represent themselves. That is appalling. Our immigration laws are complicated enough for native English speakers, let alone those who come here speaking other languages or who are not adults. We can, and should, do better than this.

Today’s hearing will explore the choices we are making in our immigration court system, to better understand how the money we appropriate is being used, and whether it is being used in line with our expectations and values. Thank you, again, Director McHenry, for being here.

Now let me turn to my friend, Mr. Aderholt, for any comments he may have.

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

It’s painfully obvious that Director McHenry doesn’t have the faintest idea how many cases are actually “off docket” because of the Trump Administration’s malicious incompetence, a/k/a ”Aimless Docket Reshuffling.”

As Chairman Serrano observed, the vision of the Immigration Courts once was “through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” That noble vision has been replaced by a “partnership” with DHS Enforcement to misconstrue the law, deny rights, punish those we should be protecting, and reduce “Immigration Judges” to menial “rubber stamps” on cruel, illegal, and unduly harsh enforcement actions in the hopes that the Article III Courts will “take a dive” and “defer” rather than intervening to put an end to this travesty.

Chairman Serrano and others have identified the problem. But they haven’t solved it!

That will require the removal of the Immigration Courts from the DOJ and establishing an independent Article I U.S. Immigration Court where Due Process can flourish, fundamental fairness will be the watchword, “best practices” (not merely expediency) will be institutionalized, and all parties will be treated equally and respectfully, thus putting an end to years of preferential treatment of DHS.

PWS

03-12-19

PINOCCHIO 4.0: Stephen Miller Spews Forth Lies About Immigrants & Crime From White House Perch!🤥🤥🤥🤥

https://www.washingtonpost.com/politics/2019/02/21/stephen-millers-claim-that-thousand-americans-die-year-after-year-illegal-immigration/

The Washington Post’s “Fact Checker” Glenn Kessler reports:

“This is a deep intellectual problem that is plaguing this city, which is that we’ve had thousands of Americans die year after year after year because of threats crossing our southern border.”

— Stephen Miller, senior adviser to President Trump, in an interview with “Fox News Sunday,” Feb. 17, 2019

This article has been updated with a comment from the White House

Miller slipped this line in the final seconds of his contentious interview with host Chris Wallace over President Trump’s emergency declaration to fund a wall along the southern border, so some viewers might have missed it. But it’s an astonishing statement, suggesting that undocumented immigrants kill thousands of Americans every year.

The White House did not respond to a query concerning Miller’s math, but other anti-immigration advocates have made similar claims. Rep. Mo Brooks (R-Ala.) claimed in December that there are “thousands of Americans who are dead each year because [of] the Democrats’ refusal to secure our borders.” President Trump claimed in 2018 that 63,000 Americans have been killed by illegal immigrants since the Sept. 11, 2001, attacks, which works out to about 3,700 a year.

But there is no evidence these claims are true. In fact, the available evidence suggests these claims are false. This is a good example about how a paucity of data allows political advocates to jump to conclusions.

The Facts

First, some context: There is no nationwide data set on crime committed by undocumented immigrants, so researchers have tried to tease the answer from less-than-complete data. Yet study after study shows that illegal immigration does not lead to increased crime, violence or drug problems. In fact, the studies indicate that undocumented immigrants commit crimes at lower rates than native-born Americans.

A 2018 study published in the peer-reviewed journal Criminology, led by Michael Light, a criminologist at the University of Wisconsin at Madison, examined whether places with higher percentages of undocumented immigrants have higher rates of violent crime such as murder or rape. The answer: States with larger shares of undocumented immigrants tended to have lower crime rates than states with smaller shares in the years 1990 through 2014. Similar results were found in another peer-reviewed study by the same researchers that looked at nonviolent crime, such as drug arrests and driving under the influence (DUI) arrests.

Similarly, the libertarian Cato Institute in 2018 looked at 2015 criminal conviction data among undocumented immigrants in Texas — one of the few states to record whether a person who has been arrested is in the country illegally or not. Researcher Alex Nowrastehfound that criminal conviction and arrest rates in Texas for undocumented immigrants were lower than those of native-born Americans for homicide, sexual assault and larceny.

“As a percentage of their respective populations, there were 50 percent fewer criminal convictions of illegal immigrants than of native-born Americans in Texas in 2015,” Nowrasteh wrote. “The criminal conviction rate for legal immigrants was about 66 percent below the native-born rate.”

In 2015, there were 785 total homicide convictions in Texas. Of those, native-born Americans were convicted of 709 homicides (a conviction rate of 3.1 per 100,000), illegal immigrants were convicted of 46 homicides (2.6 per 100,000), and legal immigrants were convicted of 30 homicides (1 per 100,000). In other words, homicide conviction rates for illegal and legal immigrants were 16 percent and 67 percent below those of native-born Americans, respectively.

Some advocates of restraining immigration have sought to make the case that undocumented immigrants commit more crimes by relying on data from the State Criminal Alien Assistance Program (SCAAP), a federal program that offers states and localities some reimbursement for the cost of incarcerating certain criminal non-U. S. citizens. The Government Accountability Office (GAO) in July issued an updated report on SCAAP data, but GAO (and SCAAP) only counts total incarcerations, not individuals. Thus the numbers are not helpful for drawing conclusions about the criminality of undocumented immigrants.

In other words, the available research indicates that, when compared with U.S. citizens, illegal immigrants commit fewer crimes. But we understand that some people might argue that any crime committed by an illegal alien is one too many. Miller is involved in a counting exercise — thousands of deaths that in theory would not otherwise have happened if the undocumented immigrant had not set foot on U.S. soil.

But the available evidence does not support a count of thousands of deaths a year, either.

Nowrasteh pointed The Fact Checker to the Texas data. For the five years from 2014 through the end of 2018, there were 200 homicide convictions of illegal immigrants. We’ll assume each conviction represents one person, although, of course, someone could have been convicted of multiple murders.

According to the Department of Homeland Security Estimate of the Illegal Alien Population Residing in the United States in January 2015, there were 1.9 million illegal residents in Texas, or about 16 percent of the 12 million undocumented immigrants estimated by the agency nationwide. If one assumes that the homicide conviction rate is the same across the country — admittedly a big assumption — then that adds up to 1,250 homicide convictions over a five-year period, or 250 a year.

In the same five-year period, there were about 75,000 murders in the United States. The United States has a 70 percent conviction rate for murder, according to the Bureau of Justice Statistics, so that translates to illegal immigrants accounting for about 2.3 percent of homicide convictions from 2014 to 2018 while accounting for about 3.8 percent of the population.

Miller said “thousands of Americans” die each year. People tend to murder who they know and live with, so odds are many of these 250 or so murders are of other illegal immigrants, not Americans.

While the White House did not respond to a query about where Miller got his calculation, we should note that Brooks has justified his figure by citing people “murdered by illegal aliens, vehicular homicides by illegal aliens, or the illegal narcotics that are shipped into our country by illegal aliens and their drug cartels.”

That slippery wording can be used to justify just about any American death from heroin. But while 90 percent of the heroin sold in the United States comes from Mexico, virtually all of it comes through legal points of entry. “A small percentage of all heroin seized by [Customs and Border Protection] along the land border was between Ports of Entry (POEs),” the Drug Enforcement Administration said in a 2018 report.

Miller spoke vaguely about “threats crossing our southern border,” adding: “We have families and communities that are left unprotected and undefended. We have international narco terrorist organizations.” The clear implication, especially with the use of the word “terrorist,” was that people were being murdered. Adding drug deaths to the total is not justifiable given that Trump’s proposed wall would not stem the flow of drugs.

There’s a website of victims that says it’s “in honor of the thousands of American citizens killed each year by Illegal Aliens.” There are entries as recently as January, but fewer than 300 people are listed even though entries date as far back as 1994. The anecdotal stories are moving, but one would expect a much longer list if thousands of people were really killed each year.

Update, Feb. 22: A day after this fact check was published, we received the following statement from White House Principal Deputy Press Secretary Hogan Gidley:

“Stephen Miller’s comment is 100 percent correct because, sadly, thousands die every year from threats crossing our Southern Border. In the last two years alone, ICE arrested criminal aliens charged or convicted of approximately 4,000 homicides (and those are only the offenders authorities could track down). Three hundred Americans die every week from heroin overdoses – 90 percent of which enters from the Southern Border – and that horrific number doesn’t even take into account deaths from cocaine, fentanyl and meth pouring across at record amounts. This is a dangerous and deadly situation that needlessly kills thousands of Americans every single year – and while the sad statistical truth may not aid the Washington Post’s political agenda, the fact remains.”

(Regular readers know that this 4,000 figure is misleading in this context. It conflates charges and convictions, and there is no indication how long ago homicides may have taken place. As we noted, most drugs come through ports of entry.)

The Pinocchio Test

Miller is the senior presidential adviser responsible for immigration policy in the White House, so it’s especially important for him to stick to verifiable facts on such an important issue. There’s no evidence that thousands of Americans are killed by undocumented immigrants, especially in light of credible studies showing they commit crimes at lower rates than native-born Americans. He earns Four Pinocchios.

Four Pinocchios

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

“Fact checking” Trump, Miller, and the rest of the “Band of Liars,” particularly on immigration issues, must be more than a full-time job. But, as shown by the Mueller investigation, lying early and often, and then “lying about lying,” appears to be a “standard business practice” for Trump and his cronies.

Migrants, whether documented or undocumented, are not a threat to our national security. But, Trump & Miller are a “clear and present danger.”

PWS

02/25/19

MARIA SACCHETTI @ WASHPOST: Substantial Majority Of Those Migrants Detained in Trump’s “New American Gulag” Have No Criminal Record!

tohhttps://www.washingtonpost.com/national/when-trump-declared-national-emergency-most-detained-immigrants-were-not-criminals/2019/02/22/a332480e-36ad-11e9-a400-e481bf264fdc_story.html

Maria writes:

Before President Trump declared a national emergency on the U.S. southern border on Feb. 15, he cited concerns that the United States was being flooded with murderers, kidnappers and other violent offenders from foreign countries.

According to new U.S. Immigration and Customs Enforcement figures obtained by The Washington Post, the nation’s immigration jails were not filled with such criminals. As of Feb. 9, days before the president’s declaration, nearly 63 percent of the detainees in ICE jails had not been convicted of any crime.

Of the 48,793 immigrants jailed on Feb. 9, the ICE data shows, 18,124 had criminal records. An additional 5,715 people had pending criminal charges, officials said, but they did not provide details. ICE also did not break down the severity of the crimes committed by or attributed to detainees.

An average of 59 percent of detainees in custody during this fiscal year had no criminal history, according to ICE.

“It proves this is a fake emergency,” said Kevin Appleby, policy director at the Center for Migration Studies, a New York-based nonpartisan immigration think tank. “It really shows that what the president’s doing is abusing his power based on false information.”

. . . .

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

Read Maria’s complete article at the above link.

We know that most of the migrants held in the “New American Gulag” (“NAG”) are neither security threats nor realistic dangers to our communities. From my experience many of those held because they are “criminals” have either relatively minor offenses (e.g., driving without a license) or even if the offenses were more serious have long ago completed criminal sentences and have been free in society without recurring problems.

So, why are the “non-criminals” being held in the NAG? Well, DHS would say it’s because they are threats to “abscond” before hearings, citing highly questionable “self-fulfilling” numbers opaquely generated by EOIR and DHS. But outside studies of DHS and EOIR statistics have shown a much different picture.

Individuals with lawyers and applications filed, particularly for asylum, who have the system and their obligations thereunder carefully explained to them in their own language, show up almost all the time for Immigration Court.

Likewise, migrants released on moderate bonds (in the $1.5 to $5K range — much lower than the current “national average”) also appear with regularity, as do those with ankle monitors and other “alternatives to detention.”

Thus, a reasonable Administration genuinely interested in the integrity of the Immigration Court process would severely curtail the use of civil immigration detention, particularly by private entities, which is both wastefully expensive and inhumane.

Instead, they would rely on a proven combination of lower-cost, more humane, and due process promoting alternatives: getting applicants matched with lawyers, pro bono, low bono, or paid; encouraging individuals to locate in communities where lawyers, family resources, and NGOs are available; and using reasonable bonds, ankle monitors and other types of “call in monitoring” to help insure appearance at further hearings.

An improved Immigration Court system where all judges were uniformly fair, impartial, and courteous to applicants and their lawyers, and where asylum was granted more generously in accordance with the standards set forth in the Refugee Act of 1980, the Supreme Court’s decision in INS v. Cardoza-Fonseca, the BIA’s precedent in Matter of Mogharrabi, and the regulations establishing a strong presumption of future persecution for those who have been persecuted in the past would also help.

Hope tends to draw people. Hostility and bias understandably tend to repel them. As long as we have a U.S. Immigration Court that tolerates, and even aids, abets, and encourages, some biased, anti-asylum, unprofessional judges in the “Jeff Sessions mode” who deny asylum at rates exceeding 90%, it will lack credibility.

Without credibility and a demonstrable commitment to fairness, impartiality, and due process above the DHS’s and the Administration’s often questionable and other times downright bogus “enforcement priorities,” the system will continue to fail our country, inflict unjustifiable harm and suffering on the most vulnerable among us, and indirectly harm every one of us who believes in Constitutional Government and a firm commitment to respecting human rights. Critical examination of the Government’s positions against a rigorous standard of legality, reasonableness, and fundamenal fairness under the Due Process Clause of the Fifth Amendment to our Constitution is essential to an independent judiciary. It isn’t happening in today’s “captive” Immigration Courts. That’s a national disgrace that must be fixed.

PWS

02-23-19

COURTING DISASTER: NEW AILA REPORT SHREDS DOJ’S “BUILT TO FAIL” IMMIGRATION COURT BACKLOG REDUCTION PROGRAM — “Malicious Incompetence” Turns Tragedy To Travesty! — McKinney, Lynch, Creighton, & Schmidt Do Press Conference Exposing Injustice, Waste, Abuse — Listen To Audio Here!

OUR TEAM:

Jeremy McKinney, Attorney, Greensboro, NC, AILA National Treasurer

Laura Lynch, Senior Policy Counsel, AILA,

Emily Creighton, Deputy Legal Director, American Immigration Council

Paul Wickham Schmidt, Retired U.S. Immigration Judge

Read the AILA Report (with original formatting) at the link below:

19021900

FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog February 21, 2019
Contact: Laura Lynch (llynch@aila.org) 1
On December 19, 2018, AILA and the American Immigration Council obtained a partially redacted memorandum through the Freedom of Information Act (FOIA), entitled the Executive Office for Immigration Review’s (EOIR) Strategic Caseload Reduction Plan (hereinafter “EOIR’s plan”). EOIR’s plan, which was approved by the Deputy Attorney General for the Department of Justice (DOJ) on October 31, 2017,2 states that the overarching goal was “to significantly reduce the case backlog by 2020.” 3 In the following months, DOJ and EOIR implemented the plan by rolling out several policy initiatives, including multiple precedent-setting opinions issued by then-Attorney General (AG) Jeff Sessions.
Contrary to EOIR’s stated goals, the administration’s policies have contributed to an increase in the court backlog which exceeded 820,000 cases at the end of 2018.4 This constitutes a 25 percent increase in the backlog since the introduction of EOIR’s plan.5 For example, the October 2017 memorandum reveals that EOIR warned DOJ that the Department of Homeland Security’s (DHS) potential activation of almost 350,000 low priority cases or cases that were not ready to be adjudicated could balloon the backlog.6 Nonetheless, then-AG Sessions ignored these concerns and issued a decision that essentially stripped immigration judges (IJs) of their ability to administratively close cases and compelled IJs to reopen previously closed cases at Immigrations Customs Enforcement’s (ICE) request.7
The policies EOIR implemented as part of this backlog reduction plan have severely undermined the due process and integrity of the immigration court system. EOIR has placed enormous pressure on IJs by setting strict case quotas on and restricting their ability to manage their dockets more efficiently. This approach treats the complex process of judging like an assembly line and makes it more likely that judges will not give asylum seekers and others appearing before the courts enough time to gather evidence to support their claims. People appearing before the courts will also have less time to find legal counsel, which has been shown to be a critical, if not the single most important factor, in determining whether an asylum seeker is able to prove eligibility for legal protection.
The foundational purpose of any court system must be to ensure its decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. Efforts to improve efficiency are also important but cannot be implemented at the expense of these fundamental principles. EOIR’s plan has not only failed to reduce the backlog but has eroded the court’s ability to ensure due process. Furthermore, EOIR’s plan demonstrates the enormous power DOJ exerts over the immigration court system. Until Congress creates an immigration court that is separate and independent from DOJ, those appearing before the court will be confronted with a flawed system that is severely compromised in its ability to ensure fair and consistent adjudications.
I. Background on EOIR’s Inherently Flawed Structure
The U.S. immigration court system suffers from profound structural problems that have severely eroded both its capacity to deliver just and fair decisions in a timely manner and public confidence in the system
AILA Doc. No. 19021900. (Posted 2/21/19)

itself.8 Unlike other judicial bodies, the immigration courts lack independence from the Executive Branch. The immigration courts are administered by EOIR, which is housed within DOJ – the same agency that prosecutes immigration cases at the federal level. This inherent conflict of interest is made worse by the fact that IJs are not classified as judges but as government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the AG, the chief prosecutor in immigration cases. The current administration has taken advantage of the court’s structural flaws, introducing numerous policies — including EOIR’s plan — that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.
II. Policies Identified in EOIR’s Plan
Administrative Closure
Stated Policy Goal: To reduce the case backlog and maximize docket efficiency, EOIR’s plan called for the strengthening of EOIR and DHS interagency cooperation.9 EOIR’s plan advised DOJ that “any burst of case initiation by a DHS component could seriously compromise EOIR’s ability to address its caseload and greatly exacerbate the current state of the backlog.”10
Reality: Despite EOIR’s warning, then-AG Sessions issued a precedent decision in Matter of Castro Tum,11 which contributed to a rise in the case backlog. This decision severely restricts a judge’s ability to schedule and prioritize their cases, otherwise known as “administrative closure” and even compels IJs to reopen previously closed cases at ICE’s request.12
Administrative closure is a procedural tool that IJs and the BIA use to temporarily halt removal proceedings by transferring a case from active to inactive status on a court’s docket. This tool is particularly useful in situations where IJs cannot complete the case until action is taken by USCIS or another DHS component, state courts and other authorities. Prior to the issuance of Matter of Castro Tum, numerous organizations, including the judges themselves, warned DOJ that stripping IJs of the ability to utilize this docket management tool “will result in an enormous increase in our already massive backlog of cases.”13 In fact, an EOIR-commissioned report identified administrative closure as a helpful tool to control the caseload and recommended that EOIR work with DHS to implement a policy to administratively close cases awaiting adjudication in other agencies or courts.14
Nonetheless, the former AG issued Matter of Castro Tum15 sharply curtailing IJs’ ability to administratively close cases. The decision even called for cases that were previously administratively closed cases to be put back on the active immigration court dockets.16 In August 2018, ICE directed its attorneys to file motions to recalendar “all cases that were previously administratively closed…” with limited exceptions—potentially adding a total of 355,835 cases immediately onto the immigration court docket.17 Three months later, ICE had already moved to recalendar 8,000 cases that had previously been administratively closed, contributing to the bloated immigration court case backlog.18 In response, members of Congress sent a letter to DOJ and DHS outlining their concerns about ICE’s plans to recalendar potentially hundreds of thousands of administratively closed cases, further clogging the system and delaying and denying justice to the individuals within it.19
Quotas and Deadlines
Stated Policy Goal: To expedite adjudications, EOIR’s plan calls for the development of caseload
management goals and benchmarks.20
Reality: EOIR imposed unprecedented case completion quotas and deadlines on IJs, that pressure judges to complete cases rapidly at the expense of balanced, well-reasoned judgment.21
2
AILA Doc. No. 19021900. (Posted 2/21/19)

At the time EOIR’s plan was issued, EOIR’s collective bargaining agreement with the National Association of Immigration Judges (NAIJ) prohibited “the use of any type of performance metrics in evaluating an IJ’s performance.”22 Despite opposition from NAIJ,23 DOJ and EOIR imposed case completion quotas and time-based deadlines on IJs, tying their individual performance reviews to the number of cases they complete.24 Among other requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.25 Disturbingly, DOJ unveiled new software, resembling a “speedometer on a car” employed to track the completion of IJs’ cases.26
Sample Image of “IJ Performance Data Dashboard”
(Source: Vice News)27
AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the NAIJ as a “death knell for judicial independence.”28 The purported argument for these policies is that it will speed the process up for the judges. However, applying this kind of blunt instrument will compel judges to rush through decisions and may compromise a respondent’s right to due process and a fair hearing. Given that most respondents do not speak English as their primary language, a strict time frame for completion of cases interferes with a judge’s ability to assure that a person’s right to examine and present evidence is respected.29
These policies also impact asylum seekers, who may need more time to gather evidence that is hard to obtain from their countries of origin, as well as unrepresented individuals, who may need more time to obtain an attorney. The Association of Pro Bono Counsel explained that the imposition of case completion quotas and deadlines “will inevitably reduce our ability to provide pro bono representation to immigrants in need of counsel.”30 Unrepresented people often face hurdles in court that can cause case delays, and scholars have concluded that immigrants with attorneys fare better at every stage of the court process.31 Furthermore, these policies compel IJs to rush through decisions may result in errors which will lead to an increase in appeals and federal litigation, further slowing down the process.
Continuances
Stated Policy Goal: To “streamline current immigration proceedings”32 and “process cases more
efficiently,”33 EOIR’s plan called for changes in the use of continuances in immigration court.34
Reality: The restrictions DOJ and EOIR placed on the use of continuances make it far more difficult for immigrants to obtain counsel and interfere with judges’ ability to use their own discretion in each case.
EOIR and DOJ introduced policies that pressure judges to deny more continuances at the expense of due process. In July 2017, the Chief IJ issued a memorandum which pressures IJs to deny multiple continuances, including continuances to find an attorney or for an attorney to prepare for a case.35 Following this policy change, then-AG Sessions issued the precedential decision, Matter of L-A-B-R- et al., interfering with an IJ’s ability to grant continuance requests and introducing procedural hurdles that will also make it harder for people to request and IJs to grant continuances.36
3
AILA Doc. No. 19021900. (Posted 2/21/19)

These policy changes weaken due process protections and contradict the agency’s plan to “improve existing laws and policies.” Continuances represent a critical docketing management tool for IJs and are a necessary means to ensure that due process is afforded in removal proceedings. The number one reason respondents request continuances is to find counsel, who play a critical role in ensuring respondents receive a fair hearing.37 Continuances are particularly important to recent arrivals, vulnerable populations (such as children), and non-English speakers—all of whom have significant difficulties navigating an incredibly complex immigration system. Furthermore, individuals represented by counsel contribute to more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, explained, “It is our experience, when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”38
Video Teleconferencing (VTC)
Stated Policy Goal: To expand its adjudicatory capacity, EOIR called for pilot VTC “immigration
adjudication centers.”39
Reality: EOIR expanded the use of VTC for substantive hearings undermining the quality of communication and due process.
A 2017 report commissioned by EOIR concluded that court proceedings by VTC should be limited to “procedural matters” because appearances by VTC may lead to “due process issues.”40 Despite these concerns, EOIR expanded use of VTC for substantive hearings. A total of fifteen IJs currently sit in two immigration adjudication centers—four in Falls Church, Virginia, and eleven in Fort Worth, Texas.41 IJs are currently stationed at these “centers” where they adjudicate cases from around the country from a remote setting.42
For years, legal organizations such as AILA and the American Bar Association (ABA) have opposed use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.43 Technological glitches such as weak connections and bad audio can make it difficult to communicate effectively, and 29 percent of EOIR staff reported that VTC caused meaningful delay.44 Additionally, VTC technology does not provide for the ability to transmit nonverbal cues. Such issues can impact an IJs’ assessment of an individual’s credibility and demeanor, which are significant factors in determining appropriate relief.45 Moreover, use of VTC for immigration hearings also limits the ability for attorneys to consult confidentially with their clients. No matter how high-quality or advanced the technology is that is used during a remote hearing, such a substitute is not equivalent to an in-person hearing and presents significant due process concerns.
IJ Hiring
Stated Policy Goal: In order to increase the IJ corps and reduce the amount of time to hire new
IJs, the former AG introduced a new, streamlined IJ hiring process.46
Reality: Following DOJ’s implementation of the streamlined IJ hiring process, DOJ faced allegations of politicized and discriminatory hiring47 that call into question the fundamental fairness of immigration court decisions.
On its face, the agency “achieved” its goal to quickly hire more IJs, reducing the time it takes to onboard new IJs by 74 percent and increasing the number of IJs on the bench from 338 IJs at the end of FY2017 to 414 IJs by the end of 2018.48 What these statistics do not reveal is that the new plan amended hiring processes to provide political appointees with greater influence in the final selection of IJs.49 In addition to procedural changes, DOJ also made substantive changes to IJ hiring requirements, “over-emphasizing litigation experience to the exclusion of other relevant immigration law experience.”50 Both Senate and
4
AILA Doc. No. 19021900. (Posted 2/21/19)

House Democrats requested an investigation with the DOJ Inspector General (IG) to examine allegations that DOJ has targeted candidates and withdrawn or delayed offers for IJ and BIA positions based on their perceived political or ideological views.51 These allegations are particularly troublesome given the influx in the number of IJs resigning and reports that experienced IJs are “being squeezed out of the system for political reasons.”52
Telephonic Interpreters
Stated Policy Goal: EOIR requested additional funding to support additional IJs on staff and to
improve efficiency.53
Reality: EOIR failed to budget for needed in-person interpreters54 resulting in the use of telephonic interpreters for most hearings, which raises concerns about hearing delays and potential communication issues.55
In April of 2017, an EOIR-commissioned report revealed that 31 percent of court staff reported that telephonic interpreters caused a meaningful delay in their ability to proceed with their daily responsibilities.56 With more than 85 percent of respondents in immigration court relying on use of an interpreter, EOIR’s decision to replace in-person interpreters with telephonic interpreters will undoubtedly make court room procedures less efficient.57 In addition, similar to many of the technological concerns cited with use of VTC, communication issues related to use of remote interpreters can jeopardize an immigrant’s right to a fair day in court. For example, it is impossible for telephonic interpreters to catch non-verbal cues that may determine the meaning of the speech.
III. Conclusion
The immigration court system is charged with ensuring that individuals appearing before the court receives a fair hearing and full review of their case consistent with the rule of law and fundamental due process. Instead of employing policies that propel the court toward these goals, the administration’s plan relies on policies that compromise due process. IJs responsible for adjudicating removal cases are being pressured to render decisions at a break-neck pace. By some accounts “morale has never, ever been lower” among IJs and their staff.58 Moreover, since the introduction of EOIR’s plan, the number of cases pending in the immigration courts has increased 25 percent (from 655,932 on 9/31/17 to 821,726 on 12/31/18). This number does not even account for the 35-day partial government shutdown that cancelled approximately 60,000 hearings while DHS continued carrying out enforcement actions.59 Congress must conduct rigorous oversight into the administration’s policies that have eroded the court’s ability to ensure that decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. But oversight is not enough. In order protect and advance America’s core values of fairness and equality, the immigration court must be restructured outside of the control of DOJ, in the form of an independent Article I court.60
900,000 800,000 700,000 600,000 500,000 400,000 300,000 200,000 100,000
0
792,738 821,726
655,932 521,416
460,021 430,095
356,246
PENDING IMMIGRATION CASES
EOIR Pending Cases
5
Pending cases equals removal, deportation, exclusion, asylum-only, and AILA Doc. No. w1it9hh0o2ld1in9g0o0nl.y. (Po
Source: Department of Justice
sted 2/21/19)

1 For more information, contact AILA Senior Policy Counsel Laura Lynch at (202) 507-7627 or llynch@aila.org.
2 *An earlier version of this policy brief, dated February 19, 2019, incorrectly stated that the memo was signed on October 17, 2017. This typo has been corrected. FOIA Response, see pg. 9.
3 On December 5, 2017, EOIR publicly issued a backgrounder for the EOIR Strategic Caseload Reduction Plan. U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
4 U.S. Department of Justice, EOIR Adjudication Statistics, Pending Cases, (Dec. 31, 2018). The over 820,000 cases does not account for the 35-day partial government shutdown that cancelled approximately 60,000 immigration court hearings while at the same time, DHS continued carrying out enforcement actions, Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
5 U.S. Department of Justice, Adjudication Statistics, Pending Cases, Dec. 31, 2018.
6 FOIA Response, see pg. 6.
7 Jason Boyd, The Hill, “8,000 new ways the Trump administration is undermining immigration court independence,” Aug. 19, 2018.
8 ABA Commission on Immigration, Reforming the Immigration System, Proposals to Promote the Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (2010).
9 FOIA Response, see pg. 6. See also U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
10 FOIA Response, see pg. 6.
11 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
12 Id.
13 NAIJ Letter to then-Attorney General Sessions, Jan. 30, 2018.
14 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017, pg. 26, [hereinafter “Booz Allen Report”].
15 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
16 Id.
17 ICE Provides Guidance to OPLA Attorneys on Administrative Closure Following Matter of Castro Tum, June 15, 2018.
18 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
19 Congressional Letter Requesting Information Regarding Initiative to Recalendar Administratively Closed Cases, Sept. 13, 2018.
20 FOIA Response, see pg. 5.
21 Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
22 FOIA Response, see pg. 5.
23 Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
24 FOIA Response, pg. 5. See also Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018. See also Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
25 See Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
26 C-SPAN, Federal Immigration Court System, Sept. 21, 2018. (“[t]his past week or so, they [EOIR] unveiled what’s called the IJ dashboard…this mechanism on your computer every morning that looks like a speedometer on a car… The goal is for you to be green but of course you see all of these reds in front of you and there is a lot of anxiety attached to that.” NAIJ President, Judge A. Ashley Tabaddor).
27 Ani Ucar, Vice News, “Leaked Report Shows the Utter Dysfunction of Baltimore’s Immigration Court,” Oct. 3, 2018.
28 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges (October 2017).
29 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence.
6
AILA Doc. No. 19021900. (Posted 2/21/19)

30 Association of Pro Bono Counsel (APBCo), Letter to Congress IJ Quotas, Oct. 26, 2017.
31 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court (2016).
32 U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017, pg. 2.
33 FOIA Response, pg. 8.
34 FOIA Response, pgs. 7-8.
35 U.S. Department of Justice, Operating Policies and Procedures Memorandum 17-01: Continuances, July 31, 2017. 36 Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018).
37 GAO Report, 17-438, Immigration Courts, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, (June 2017).
38 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
39 FOIA Response, pg. 3.
40 Booz Allen Report, pg. 23.
41 U.S. Department of Justice, EOIR Immigration Court Listings, Feb. 2019.
42 Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
43 AILA Comments on ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Letter to ACUS, Feb. 17, 2012.
44 Booz Allen Report, pg. 23.
45 An EOIR commissioned report suggested limiting use of VTC to procedural matters only because it is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC. Booz Allen Report, pg. 23.
46 FOIA Response, pg. 3.
47 Priscilla Alvarez, The Atlantic, Jeff Sessions is Quietly Transforming the Nation’s Immigration Courts, Oct. 17, 2018.
48 U.S. Department of Justice, EOIR Adjudication Statistic, IJ Hiring, (Jan. 2019).
49 U.S. Department of Justice, EOIR Announces Largest Ever Immigration Judge Investiture, Sept. 28, 2018; Document Obtained via FOIA by Human Rights First, Memorandum for the Attorney General, Immigration Judge Hiring Process, Apr. 4, 2017.
50 Strengthening and Reforming America’s Immigration Court System, Hearing Before Subcommittee on Border Security and Immigration, of the Senate Committee on the Judiciary, 115th Cong. 5 (2018) (A. Ashley Tabaddor, President, NAIJ), See also Questions for the Record.
51 Senate and House Democrats Request IG Investigation of Illegal Hiring Allegations at DOJ, May 8, 2018. Problematic hiring practices are not new for this agency. Over a decade ago, the IG and the Office of Professional Responsibility revealed that then-Attorney General Alberto Gonzales utilized political and ideological considerations in the hiring of IJ and BIA candidates. U.S Department of Justice IG Report, (2008).
52 Hamed Aleaziz, BuzzFeed News, Being an Immigration Judge Was Their Dream. Under Trump, It Became Untenable, Feb. 13, 2019.
53 FOIA Response, pg. 3.
54 NAIJ Letter to Senators, Government Shutdown, Jan. 9, 2019.
55 Id.
56 Booz Allen Report, pg. 25.
57 Laura Abel, Brennan Center For Justice, Language Access in Immigration Courts, (2010).
58 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
59 Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
60 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
7
AILA Doc. No. 19021900. (Posted 2/21/19)

Here’s the link to the audio:

https://www.aila.org/infonet/aila-press-call-on-eoir-memo-obtained-via-foia

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Here’s “simul-coverage” from LA Times star reporter Molly O’Toole:

https://www.latimes.com/politics/la-na-pol-immigration-court-backlog-worsens-20190221-story.html

The Trump administration’s controversial plan to shrink the ballooning backlog of immigration cases by pushing judges to hear more cases has failed, according to the latest data, with the average wait for an immigration hearing now more than two years.

Since October 2017, when the Justice Department approved a plan aimed at reducing the backlog in immigration court, the pending caseload has grown by more than 26%, from 655,932 cases to just shy of 830,000, according to Syracuse University’s Transactional Access Records Clearinghouse, which tracks data from immigration courts.

Even that figure likely understates the backlog because it doesn’t include the impact of the 35-day government shutdown in December and January. Because the system’s roughly 400 immigration judges were furloughed during the shutdown, some 60,000 hearings were canceled. Thousands were rescheduled, adding to the already long wait times.

The administration “has not only failed to reduce the backlog, but has eroded the court’s ability to ensure due process” by pressuring judges to rule “at a breakneck pace” on whether an immigrant should be removed from the United States, the American Immigration Lawyers Assn. — a nonprofit organization of more than 15,000 immigration attorneys and law professors — said in a statement.

When the Justice Department’s Executive Office of Immigration Review, which administers immigration courts, released its plan, officials described it as a “comprehensive strategy for significantly reducing the caseload by 2020,” according to a partially redacted copy of an October 2017 memo obtained by the immigration lawyers group through a Freedom of Information Act request.

“The size of EOIR’s pending caseload will not reverse itself overnight,” the memo said, but by fully implementing the strategy, the office can “realistically expect not only a reversal of the growth of the caseload, but a significant reduction in it.”

Instead, the average wait has grown by a month from January alone, to 746 days — ironically extending the stay of thousands of migrants whom the administration might want to deport from the United States. The Justice Department declined to immediately comment on the growth of the backlog.

The number of pending immigration cases has risen dramatically in recent years, doubling from less than 300,000 in 2011 to 650,000 by December 2017, the end of Trump’s first year in office, according to the Justice Department.

The Trump administration has blamed the ballooning backlog on President Obama’s immigration policies, saying that “policy changes in recent years have slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.”

Administration officials have pointed to Obama’s effort to focus deportation on immigrants with serious criminal records and protecting certain immigrants known as Dreamers who were brought to the U.S. as children as examples of policies that have provided incentives for illegal border crossings.

The administration’s plan to reverse the backlog included a number of controversial steps.

One move restricted the ability of immigration judges to schedule and set priorities for their cases under a process known as “administrative closure.” That change compelled judges to reopen thousands of cases that had been deemed low priority and had been closed. Within three months of the memo, Immigration and Customs Enforcement had moved to reschedule 8,000 cases, prompting concern from lawmakers, according to the immigration lawyers association. Potentially, as many as 350,000 cases ultimately could be added back onto the court dockets.

The administration’s plan also tied immigration judges’ individual performance reviews to the number of cases they complete, calling for them to finish 700 removal cases in the next year.

In contrast to regular courts, immigration judges are not independent; they’re part of the Justice Department. Because of that, the attorney general is both the chief prosecutor in immigration cases and the ultimate boss of the judges, who are classified as government attorneys.

The National Assn. of Immigration Judges, as well as the immigration lawyers association and other groups, have long called for Congress to end what they see as a built-in conflict of interest and create an immigration court separate from the Justice Department.

“As long as we continue to allow the court to be used as a law enforcement tool,” said Ashley Tabaddor, president of the National Assn. of Immigration Judges, “you’re going to get these kinds of backlogs and inefficiencies.”

Any speedup that may have resulted from the imposition of quotas on the judges has been overtaken by the administration’s stepped-up enforcement efforts, which have pushed thousands of new cases into the system.

Stepped-up enforcement without a corresponding increase in judicial resources provides the main reason the backlog has gone up so dramatically, said Stephen Legomsky, Homeland Security’s chief counsel for immigration from 2011 to 2013.

“Immediately upon taking office, President Trump essentially advised Border Patrol agents and ICE officers that they were to begin removal proceedings against anyone they encountered that they suspected of being undocumented, without sufficiently increasing resources for immigration judges,” Legomsky said.

Under previous administrations, “the thinking was, ‘Let’s not spend our limited resources on people who are about to get legal status,’” he said, “Taking that discretion away dramatically increased the caseload.”

Some officials warned that could happen when the effort to curtail the backlog began.

“Any burst of case initiation,” by Homeland Security “could seriously compromise” the Justice Department’s “ability to address its caseload and greatly exacerbate the current state of the backlog,” the acting director of the immigration review office wrote in the October memo to Deputy Atty. Gen. Rod Rosenstein.

The quota effort could also prevent attorneys from providing representation to immigrants, according to the Assn. of Pro Bono Counsel, which represents lawyers who handle cases free of charge for the poor.

Whether immigrants have legal representation makes a huge difference in the outcome of cases: Between October 2000 and November 2018, about 82% of people in immigration court without attorneys were either ordered deported or gave up on their cases and left the country voluntarily, while only 31% of those with lawyers were deported or left.

The administration has succeeded in speeding the hiring of new immigration judges by 74%. The number of immigration judges has grown from 338 when the plan was introduced to 414 by the end of 2018.

Lawmakers have raised concerns that some of those new hires have been politically motivated. In May, House Democrats requested an investigation by the Justice Department Inspector General’s office into allegations that candidates have been chosen or rejected for perceived ideological views.

“The current administration has taken advantage of the court’s structural flaws,” the immigration lawyers association wrote, “introducing numerous policies … that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.”

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My Takeaways:

The DOJ politicos made the already bad situation immeasurably worse;
At no time did any of those supposedly “in charge” seriously consider taking measures that could have promoted Due Process and fundamental fairness in a troubled system whose sole function was to insure and protect these Constitutional requirements;
Sessions was warned about the severe adverse consequences of eliminating “administrative closure” by EOIR, but went ahead with his preconceived “White Nationalist” agenda, based on bias, not law;
Deputy Attorney General Rod Rosenstein, who signed off on this monstrosity, is no “hero” just because he stood up to Trump on the Mueller investigation; he’s just another “go along to get along,” like the rest of the Trump DOJ political appointees (with the possible exception of FBI Director Chris Wray);
No sitting judge, indeed no real “stakeholder,” was consulted about these “designed to fail” measures;
The placement of what purports to be a “court system” dedicated to Due Process within the Justice Department is preposterous;
Congress, which created this parody of justice, and the Article III Courts who have failed to “just say no” to all removal orders produced in this “Due Process Free Zone” must share the blame for allowing this Constitutionally untenable situation to continue;
Once again, the victims of the Trump Administration’s “malicious incompetence” are being punished while the “perpetrators” suffer few, if any, consequences.

PWS

02-21-19

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UPDATE: Molly’s article was the “front page lead” in today’s print edition of the LA Times.

https://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Gotta give the crew at DOJ/EOIR HQ credit for screwing this up so royally that it’s now off the “back pages” and into the headlines where it belongs. You couldn’t buy publicity like this!

First EOIR Director David “No News Is Good News” Milhollan must be rolling over in his grave right now. And his “General Counsel/Chief Flackie,” my friend and former BIA Appellate Judge Gerald S. “No Comment/We Don’t Track That Statistic” Hurwitz must be watching all of this with amusement and bemusement from his retirement perch. Just goes to support the “Milhollan/Hurwitz Doctrine” that “only bad things can happen once they know you exist.”

PWS

02-22-19

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