"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
As many as 1,000 parents separated from their children are getting a second chance to stay in the US
In a huge reversal, the Trump administration is giving families another chance to claim asylum — and even some parents who’ve already been deported might be eligible.
A Honduran father and his 6-year-old son worship during Sunday mass on September 9, 2018, in Oakland, California. They fled their country seeking asylum in the US.Mario Tama/Getty Images
The Trump administration has just agreed to give parents who were separated from their children at the US-Mexico border earlier this year a second chance to make asylum claims in the US.
The Department of Justice has negotiated an agreement that covers three lawsuits filed against the government over the family-separation policy. Parents in the US who’d been ordered deported would get another chance to pass an interview demonstrating a “credible fear” of persecution — the first step in the asylum process.
If either the parent or the child passes the screening interview, families will be allowed to apply for asylum together. Some parents who don’t pass will be allowed to remain with their children in the US while the children’s cases are adjudicated.
And in some cases, the government is even willing to consider reopening cases for parents who were already deported from the US.
The agreement covers three lawsuits: Ms. L v. ICE, which forced the government to reunite separated families this summer; M- M- M- v. ICE, brought on behalf of children separated from parents; and Dora v. Sessions, a lawsuit from parents who had failed their initial asylum screenings because they were distraught after weeks of separation from their children.
If the agreement is approved by the federal judges overseeing the three lawsuits, it will result in a second chance for hundreds of parents. Muslim Advocates and the Legal Aid Justice Center, who represented the plaintiffs in Dora v. Sessions, believe it could give “well over 1,000” parents another chance at an asylum claim. And for many families, it will eliminate (or at least defer) the impossible choice between giving up a child’s legal case, and separating the family again by keeping the child in the US while the parent is deported.
Separating families made it much harder for parents to seek asylum
Under the Trump administration’s family separation policy, a parent who wanted to seek asylum in the US had one chance: to pass a “credible fear” screening interview with an asylum office.
If a parent passed the credible fear screening, he or she was given a chance to seek asylum before an immigration judge; if the parent failed, he or she could appeal the decision to an immigration judge, with much worse odds. Losing the appeal, or agreeing to drop the case, led to an order of deportation.
Generally, most asylum seekers pass their credible fear screenings. But evidence suggests that parents who were separated from their children often failed their interviews. Parents were often so consumed by grief over their separation from their children that they weren’t able to answer asylum officers’ questions fully and effectively, according to the lawsuit filed in Dora v. Sessions.
“Explaining the basis for an asylum claim is very difficult under the best of circumstances,” said one source familiar with the interview process but not professionally authorized to speak on the record. “When someone is a) detained, b) almost certainly unrepresented, and c) beside herself with fear and desperation because of having had her child taken from her,” the source continued, “it is almost impossible.”
By the time nearly 2,000 parents and children were reunited in July (thanks to Judge Dana Sabraw’s rulings in the Ms. L case ordering family reunification), the overwhelming majority of parents had already lost their cases and been ordered deported. But their children — who’d been placed on a separate legal track as “unaccompanied alien children” after being separated from their parents — often still had ongoing cases and a real chance of winning some form of legal status in the US.
So upon being reunited, hundreds of families were faced with the choice between returning to their home country together (and facing possible peril or persecution), and keeping the child in the US in hopes of winning asylum or another form of legal status — and separating the family anew. (Some parents alleged they weren’t even given this chance, and were coerced into withdrawing their children’s legal claims — and forcibly reseparated without warning if they refused to comply.)
None of this would have happened if families hadn’t been separated to begin with. Under normal circumstances, if either a parent or a child passed an asylum interview, the government would allow them both to file asylum claims. And obviously, parents who weren’t traumatized by family separation might have had a better chance with their interviews. But simply reuniting the family didn’t solve the problem.
The government is agreeing to give reunited families the same chance they’d had if they’d never been separated
Here is what the agreement proposed by the government would actually do, if approved:
Parents who passed their initial “credible fear” interviews for asylum will be allowed to continue; this agreement doesn’t change those cases.
Parents who had lost their cases and been ordered deported will be given a full review to reassess whether or not they have a credible fear of persecution. This review will include a second interview for “additional fact-gathering” — during which a lawyer can be present (or can dial in by phone). Parents will be allowed to do this even if they didn’t ask for a credible fear interview when they were first arrested.
Parents who fail their credible fear screenings will be allowed to remain in the US and apply for asylum if their child passes his or her credible fear screening. The reverse is also true: If a child fails her asylum screening but the parent passes his, both parent and child will be allowed to apply for asylum. This is the way things normally work when families are apprehended together; by instituting it now, the government is essentially wiping away the legal side effects of family separation.
Parents who aren’t eligible for a credible fear interview because they had been deported before and were returning will still be allowed to avoid deportation if they meet a higher standard (“reasonable fear”) and qualify for something called “withholding of removal.” Even if they fail that standard, they will be allowed to stay in the US while their children are going through their asylum cases.
Parents who have already been deported will not have their cases automatically reviewed by the government. However, the plaintiffs in these lawsuits will have 30 days to present evidence to the government that particular parents should be allowed to return, and the government will consider those requests. (The agreement doesn’t make it clear whether deported parents will have their own cases reopened, or whether they will solely be allowed to return to stay with their children while the children’s legal cases are ongoing.)
If the agreement is approved, it will officially send the legal fight over family separation into its endgame phase. While hundreds of parents and children remain separated, the legal fight over reunification is largely about who’s responsible for carrying out various parts of the government’s reunification plan; the new agreement would set a similar plan up for the legal due process of parents and children making claims to stay in the US.
It would almost certainly run into similar implementation obstacles to the reunification plan, but it would set expectations that the government would provide this process by default, rather than moving forward with deportation.
The Trump administration is never going to wholly be able to erase the consequences of its decision to separate families as a matter of course. But it is now agreeing to give up the legal advantages that it accrued by separating parents’ and children’s cases — and forcing parents to go through interviews with life-or-death stakes without knowing when or whether they’d ever see their children again.
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I’ve been saying it over and over again. Why not just do it right, provide full Due Process, and follow the law?
Not only are the policies being promoted by Sessions, Trump, and the rest of the GOP White Nationalists unconstitutional, illegal, vile, and immoral, they are totally wasteful of limited Government resources (particularly in a time of GOP-fueled budget deficits) and unnecessarily tie up the Federal Courts. Contrary to Jeff Sessions’s false narratives, no court system anywhere has unlimited time for all the nonsense that the Government could potentially pursue. When common sense and sane prosecutorial discretion lose out, they whole system suffers.
Think what might have happened if, instead of wasting time and money on illegal family separation, unnecessary criminal prosecutions, and bending protection law out of shape, the Government had done the right thing and spent the money:
Working with NGOs and legal aid groups to release folks in locations where they could get legal assistance, virtually guaranteeing their appearance in Immigration Court;
Agreeing to grant the many domestic violence and other types of gang-related cases that could have been granted after proper preparation and documentation under a proper application of the law (before Sessions messed it up);
Taking all of the cases of long-term law-abiding residents off overloaded Immigration Court dockets so that the real contested asylum cases could be given priority without denying anyone Due Process or moving everything else back through “Aimless Docket Reshuffling” (“ADR”).
Any “bad guys,” or “true economic migrants” could have been given full hearings, denied, and removed. But, totally contrary to Sessions’s racist blather, most of the folks arriving are actually legitimate refugees. They could have been granted status and allowed to go out and work and study to make America better. I’ve found few individuals (including many native-born US citizens) more grateful and willing to work hard and contribute than those granted asylum.
The money spent on wasteful litigation and needless, cruel and inhuman, detention could instead have been used;
to establish a viable overseas refugee screening program in the Northern Triangle;
working with other countries to share resettlement responsibilities;
and trying to correct the situations in the Northern Triangle which gave rise to the refugee flows in the first place.
Sadly, this is hardly the first, and probably by no means the last, time that the US Government has been forced to reprocess large numbers of asylum seekers because of a failure to follow Due Process and do the right thing in the first place. Just check out the history of the ABC v. Thornburgh litigation and settlement (a case I was involved in during my time in the “Legacy INS” General Counsel’s Office).
Indeed, the Trump scofflaws are “doubling down” on every failed policy fo the past. They actually are at it again with their bone-headed proposal to thumb their collective noses at Judge Dolly Gee and withdraw from the Flores settlement and set up a “Kiddie Gulag” by regulation. Good luck with that. The Trump Scofflaws are already wasting your taxpayer money on more “tent cities in the Kiddie Gulag” that they almost certainly will be enjoined from using at some point. Then, cooler heads will prevail and we’ll undoubtedly have a “Flores II” settlement.
Also, compare the real role of immigration lawyers in enforcing the law and holding Goverment scofflaws like Sessions and Nielsen accountable with the totally bogus picture painted by Sessions in his false, unethical, and highly inappropriate speech to US Immigration Judges this week. Truth is exactly the opposite of nearly everything that Jeff Sessions says.
Our country can’t afford the scofflaw conduct, inhumanity, immorality, and wastefulness of Trump, Sessions, Miller and their racist White Nationalist cabal. Vote for regime change this Fall!
Sophia Genovese, Sept. 10, 2018 – “US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that they are unable or unwilling to return to, or avail themselves of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). Attorneys constantly grapple with the ins and outs of asylum law, especially in light of recent, dramatic changes to asylum adjudication.
Even with legal representation, the chances of being granted asylum are slim. In FY 2017, only 45% asylum-seekers who had an attorney were ultimately granted asylum. Imagine, then, an asylum-seeker fleeing persecution, suffering from severe trauma, and arriving in a foreign land where he or she suddenly has to become a legal expert in order to avoid being sent back to certain death. For most, this is nearly impossible, where in FY 2017, only 10% of those unrepresented successfully obtained asylum.
It is important to remember that while asylum-seekers have a right to obtain counsel at their own expense, they are not entitled to government-appointed counsel. INA § 240(b)(4)(A). Access to legal representation is critical for asylum-seekers. However, most asylum-seekers, especially those in detention, go largely unrepresented in their asylum proceedings, where only 15% of all detained immigrants have access to an attorney. For those detained in remote areas, that percentage is even lower.
Given this inequity, I felt compelled to travel to a remote detention facility in Folkston, GA and provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. I travelled along with former supervisors turned mentors, Jessica Greenberg and Deirdre Stradone, Staff Attorneys at African Services Committee(ASC)/Immigrant Community Law Center (ICLC), along with Lucia della Paolera, a volunteer interpreter. Our program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings in order to assist as many folks as possible in obtaining release. Their rationale is that since bond and parole representation take up substantially less time than asylum representation, that they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.
Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, FL, and nearly 300 miles from Atlanta, GA, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack any semblance to due process. Rather, through assembly-line adjudication, IJs hear several dozens of cases within the span of a few hours. On court days, I witnessed about twenty men get shuffled into a small conference room to speak with the IJ in front of a small camera. The IJ only spends a few minutes on each case, and then the next twenty men get shuffled into the same room. While IJs may spend a bit more time with detainees during their bond or merits hearings, the time spent is often inadequate, frequently leading to unjust results.
Even with the tireless efforts of the Staff Attorneys and volunteers at SIFI, there are simply too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds stranded to navigate the confusing waters of immigration court alone.
During initial screenings, I encountered numerous individuals who filled out their asylum applications on their own. These folks try their best using the internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. But as any practitioner will tell you, so much more goes into an asylum application than the Form I-589. While these asylum seekers are smart and resourceful, it is nearly impossible for one to successfully pursue one’s own asylum claim. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearing where an IJ will adjudicate their asylum claim, they will be left to argue their claims in the Atlanta Immigration Court, where 95%-98% of all asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.
Despite the Attorney General’s most recent comments that lawyers are not following the letter of the law when advocating on behalf of asylum-seekers, it is clear that it is the IJs, [tasked with fairly applying the law, and DHS officials, tasked with enforcing the law,] who are the ones seeking to circumvent the Immigration and Nationality Act (INA). Throughout the Trump era, immigration attorneys have faithfully upheld asylum law and have had to hold the government accountable in its failure to apply the law fairly. Good lawyers, using all of their talents and skill, work every day to vindicate the rights of their clients pursuant to the INA, contrary to Sessions’ assertions.
But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.
We’ve previously blogged about the due process concerns in immigration courts under Sessions’ tenure. Instead, I want to highlight the stories of some of the asylum-seekers I met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. It is important that we understand who it is that we’re actually deporting. Through sharing their stories, I want to demonstrate to others just how unfair our asylum system is. Asylum was meant to protect these people. Instead, we treat them as criminals by detaining them, do not provide them with adequate access to legal representation, and summarily remove them from the United States. Below are their stories:
Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation
At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.
Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.
Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a US citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.
Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman
During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a Master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.
He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.
Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.
Mr. S-’s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. See, e.g., Lopez v. Sessions, 859 F.3d 464 (7th Cir. 2017); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (“wealth, standing alone, is not an immutable characteristic of a cognizable social group”); but see, Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (confirming that although wealth standing alone is not an immutable characteristic, the Respondent’s combined attributes of wealth, education status, and cattle rancher, satisfied the particular social group requirements). However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014) (Respondent demonstrated that his “Mayan Quiché identity was ‘at least one central reason’ why he” was persecuted).
As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the US to sponsor him, he may be eligible for employment-based relief based on his Master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.
Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group
My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the US to escape this persecution.
Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-’s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.
August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter that spoke his language. Mr. G- was so out of the loop with what was going on, that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague, Jessica, and I, spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.
Mr. G- firmly stated that he will be killed if he was forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.
Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.
Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his Evangelical Christianity, given that Mr. G-’s persecution was compounded by his visible Mam ethnicity and vocal Evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. See, e.g., Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) (finding insufficient evidence that MS-13 targeted Petitioner on account of his Christian beliefs, finding instead that the evidence supported the conclusion that the threats were based on his refusal to join the gang, which is not a protected ground). Mr. G-’s low prospects of success are particularly heart-wrenching. When we as a country fail to protect those seeking refuge from persecution, especially those fleeing religious persecution, we destroy the very ideals upon which this country was founded.
Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion
I also assisted in the drafting of a bond motion for a 20 year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.
Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-’s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.
A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, that he would be killed. Fearing for his life, Mr. O- fled to the US in April 2018 and has been in detention ever since.
SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-’s asylum claim is particularly strong, and because he has family in the US, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ that appropriately follows the law and will grant him asylum.”
(The author thanks Jessica Greenberg and Deirdre Stradone for their constant mentorship as well as providing the author the opportunity to go to Folkston. The author also thanks Lucia della Paolera for her advocacy, passion, and critical interpretation assistance. Finally, the author expresses the utmost gratitude to the team at SIFI, who work day in and day out to provide excellent representation to the detained migrants and asylum-seekers detained at Folkston ICE Processing Center.)
Photos from my trip to Folkston, GA:
The Folkston ICE Processing Center.
Downtown Folkston, GA.
Volunteers from Left to Right: Sophia Genovese (author), Deirdre Stradone (Staff Attorney at African Services Committee), Jessica Greenberg (Staff Attorney at ASC/ICLC), and Lucia della Paolera (volunteer interpreter).
Many thanks to the incomparable Dan Kowalski over at LexisNexis for forwarding this terrific and timely piece! These are the kinds of individuals that Jeff Sessions would like Immigration Judges to sentence to death or serious harm without Due Process and contrary to asylum and protection law.
As Sophia cogently points out, since the beginning of this Administration it has been private lawyers, most serving pro bono or “low bono,” who have been courageously fighting to uphold our Constitution and the rule of law from the cowardly scofflaw White Nationalist attacks by Trump, Sessions, Miller, Nielsen, and the rest of the outlaws. In a significant number of cases, the Article III Federal Courts have agreed and held the scofflaws at least legally (if not yet personally) accountable.
Like any bully, Sessions resents having to follow the law and having higher authorities tell him what to do. He has repeatedly made contemptuous, disingenuous legal arguments and presented factual misrepresentations in support of his lawless behavior and only grudgingly complied with court orders. He has disrespectfully and condescendingly lectured the courts about his authority and their limited role in assuring that the Constitution and the law are upheld. That’s why he loves lording it over the US Immigration Courts where he is simultaneously legislator, investigator, prosecutor, judge, jury, appellate court, and executioner in violation of common sense and all rules of legal ethics.
But, Sessions will be long gone before most of you new US Immigration Judges will be. He and his “go along to get along enablers” certainly will be condemned by history as the “21st Century Jim Crows.” Is that how you want to be remembered — as part of a White Nationalist movement that essentially is committed to intentional cruelty, undermining our Constitution, and disrespecting the legal and human rights and monumental contributions to our country of people of color and other vulnerable groups?
Every US Immigration Judge has a chance to stand up and be part of the solution rather than the problem. Do you have the courage to follow the law and the Constitution and to treat asylum applicants and other migrants fairly and impartially, giving asylum applicants the benefit of the doubt as intended by the framers of the Convention? Will you take the necessary time to carefully consider, research, deliberate, and explain each decision to get it right (whether or not it meets Sessions’s bogus “quota system”)? Will you properly factor in all of the difficulties and roadblocks intentionally thrown up by this Administration to disadvantage and improperly deter asylum seekers? Will you treat all individuals coming before you with dignity, kindness, patience, and respect regardless of the ultimate disposition of their cases. This is the “real stuff of genuine judging,” not just being an “employee.”
Or will you, as Sessions urges, treat migrants as “fish in a barrel” or “easy numbers,” unfairly denying their claims for refuge without ever giving them a real chance. Will you prejudge their claims and make false imputations of fraud, with no evidence, as he has? Will you give fair hearings and the granting of relief under our laws the same urgency that Sessions touts for churning out more removal orders. Will you resist Sessions’s disingenuous attempt to shift the blame for the existing mess in the Immigration Courts from himself, his predecessors, the DHS, and Congress, where it belongs, to the individuals and their attorneys coming before you in search of justice (and also, of course, to you for not working hard enough to deny more continuances, cut more corners, and churn out more rote removal orders)?
How will history judge you and your actions, humanity, compassion, understanding, scholarship, attention to detail, willingness to stand up for the rights of the unpopular, and values, in a time of existential crisis for our nation and our world?
Your choice. Choose wisely. Good luck. Do great things!
Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
Greetings. As of July 31, 2018, pending cases in Immigration Court nationwide reached nearly three-quarters of a million (746,049 cases). This is a 38 percent increase compared to the 542,411 cases pending at the end of January 2017 when President Trump took office.
All states are witnessing an increase in Immigration Court backlogs. However, ten states account for the vast majority of the backlog. Four out of five pending cases in the country are before immigration judges in these ten states. The state of Maryland leads the pack with the highest rate of increase in pending cases since the beginning of FY 2017. Pending caseloads in Maryland have increased by 96 percent, roughly double its caseload at the beginning of FY 2017. Of the top ten states, courts based in Texas experienced the least amount of growth at 20 percent. See Figure 1.
In absolute terms, California has the largest Immigration Court backlog – 140,676 cases waiting decision, a number that has increased by 48 percent from its FY 2017 pending caseload level.
Courts based in three other states experienced even higher growth rates than in California. Massachusetts’ court backlog grew by 76 percent. The backlog in Georgia grew by 67 percent, while pending cases in Florida grew by 57 percent.
To view further details on each of the top ten states go to:
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 July 2018. For an index to the full list of TRAC’s immigration tools go to:
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:
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
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As many of us had predicted, by twisting the law against asylum seekers, rather than letting it develop in a manner that would have correctly resulted in more asylum grants in shorter hearings, Sessions has contributed mightily to the increasing backlog. Also, in his conflicted role as the “de facto head of DHS,” Sessions has all but eliminated prosecutorial discretion (“PD”) at ICE. His actions have also put many properly closed cases that should have remained off docket or with USCIS back on the Immigration Courts’ docket while stripping Immigration Judges of the tools necessary to manage their dockets.
Sessions effectively has taken a sinking ship and punched holes below the waterline to make it sink even faster. And, he has proved that without some type of rational, Due Process reforms leading to an independent Article I Immigration Court, there is no way of getting a handle on the Immigration Courts’ problems while complying with the Constitution.
A system that essentially is being abused and run into the ground by the Government party appearing before it in every single case is doomed to failure. The first step to any successful court system is creating a fair, impartial, and efficient process, including a transparent merit selection system for the judges, that can then be replicated and improved over time under the direction of judges with input from all parties. That first step will never be taken as long as Sessions and the DOJ remain in change.
But, no system will be able to eliminate overnight a backlog resulting from more than a decade of political manipulation and mismanagement by the DOJ under Administrations of both parties. Even though anti-Constitutionalists like Sessions, Trump, and co. want to admit it, the Supreme Court has told us the simple truth that Due Process takes time. There is no “silver bullet” or “one size fits all” formula for achieving it.
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
Greetings. The push to prioritize prosecuting illegal border crossers has begun to impact the capacity of federal prosecutors to enforce other federal laws. In March 2018, immigration prosecutions dominated so that in the five federal districts along the southwest border only one in seven prosecutions (14%) were for any non-immigration crimes. But by June 2018, this ratio had shrunk so just one in seventeen prosecutions (6%) were for anything other than immigration offenses.
Federal prosecutors are responsible for enforcing a wide range of important federal laws – designed to combat narcotics trafficking and weapons offenses, battle those polluting air and water, counter corporate and other schemes to defraud the public, and much more. There is a combined population in these five southwest border districts of close to 30 million people. However, the number of prosecutions for committing any non-immigration crimes dwindled from a total of 1,093 in March 2018 to just 703 prosecutions in June 2018.
Meanwhile, immigration prosecutions continue to climb. The latest available case-by-case records for June 2018 reveal a total of 11,086 new federal prosecutions were brought as a result of referrals from Customs and Border Protection in the five federal judicial districts along the southwest border. June numbers were up 20.3 percent from the 9,216 such prosecutions recorded during May, and up 74.1 percent over March figures. Despite this increase, only 46 percent of all Border Patrol arrests of adults in June were criminally prosecuted.
The number of families arrested by the Border Patrol showed little indication of materially dropping. Numbers have remained quite similar during April, May and June. This meant that Border Patrol officials still had to pick and choose which adults to refer to federal prosecutors, and which adults not to criminally prosecute.
To read the full report, including additional details by district, go to:
In addition to these most recent overall figures, TRAC continues to offer free monthly reports on selected government agencies such as the FBI, ATF, DHS and the IRS. TRAC’s reports also monitor program categories such as official corruption, drugs, weapons, white collar crime and terrorism. For the latest information on prosecutions and convictions through June 2018, go to:
Even more detailed criminal enforcement information for the period from FY 1986 through June 2018 is available to TRACFed subscribers via the Express and Going Deeper tools. Go to http://tracfed.syr.edu for more information. Customized reports for a specific agency, district, program, lead charge or judge are available via the TRAC Data Interpreter, either as part of a TRACFed subscription or on a per-report basis. Go to http://trac.syr.edu/interpreter to start.
If you want to be sure to receive notifications whenever updated data become available, sign up at:
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 US Federal government. To help support TRAC’s ongoing efforts, go to:
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 http://trac.syr.edu
———————————————————————————
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://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 http://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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No real surprises here.
All the adverse effects of Sessions’s White Nationalist fixation on helpless migrants, most of whom desire only to apply for refuge under our law, as they are legally entitled to do, are hard to quantify. It’s clear that there are no positives and that he has wasted taxpayer money, endangered lives, weakened law enforcement, abused children, damaged future generations, and violated both our Constitution and international human rights laws.
Yet, he goes on with his racist program with impunity — without being held truly accountable by either the Congress or the Courts. Indeed, his intended victims are most often blamed, and civil servants are stuck trying to mitigate or undo some of the worst effects. Pretty disgusting.
We need regime change while there is still some Government left to salvage.
Here’s the disheartening reality about the Trump administration’s policies toward those arriving at the borders seeking asylum: Many more people with legitimate claims are likely being sent home to perilous conditions despite federal and international laws recognizing the right of the persecuted to seek sanctuary in other countries. That is unconscionable.
The Transactional Records Access Clearinghouse at Syracuse University reports that immigration judges — who work for the Justice Department, not the federal courts — are granting asylum seekers’ appeals half as often as they did a year ago. Through June, courts revived less than 15% of the asylum claims that had been rejected by immigration agents, who make the initial determination whether an asylum seeker had a credible fear of persecution if returned home.
What changed from the first half of 2017? The reduction of successful appeals coincided with Atty. Gen. Jeff Sessions’ comments that the asylum system “is being gamed” (there’s little evidence of that), his demands that immigration courts handle appeals more quickly, and the roll-out of performance quotas to force immigration judges to clear cases faster. That’s what changed.
The TRAC analysis further found that rate of successful appeals varies wildly by geographic region and even among judges within the same regional court — a systemic inconsistency that predates the Trump administration. That justice is so fickle is neither fair nor meets our moral and legal obligations to those fleeing persecution.
We can rail against the Justice Department’s failings, but the responsibility rests with Congress. It granted the department wide latitude in handling asylum requests from people facing persecution based on race, religion, race, political beliefs, nationality or membership in a social group.
That last, ill-defined category gave the government flexibility as times and needs warranted, but it also has led to uncertainty and politicization. Sessions, for instance, recently overturned an Obama-era immigration court definition that made asylum available to women who faced domestic violence in countries where police failed to protect them. So a political change in the attorney general’s office can weigh more heavily than precedents set by immigration judges.
This is fixable if we ever get a Congress willing to compromise and craft comprehensive immigration reforms framed within a humanitarian context and informed by the nation’s best interests — in terms of diversity and economic growth — and not one that panders to the current mood in the capital of nationalistic antipathy for the foreign-born. In the meantime, we must insist that people who are deserving of sanctuary receive it, and not get turned away to satisfy the current political whims.
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What’s happening to our U.S. Immigration Courts and to our asylum system is indeed a national outrage that requires Congressional action. That corrective action, at a minimum, must 1) establish an independent, Article I Immigration Court outside the Executive Branch; and 2) specify that persecution based upon gender constitutes persecution on account of a “particular social group.”
Not going to happen under this Congress! That’s why regime change is so critical. And, getting out the vote this November and thereafter is key to the majority no longer being subject to the whims of a toxic minority Government that has abandoned our Constitution, human rights, human decency, common sense, and the common good.
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
Greetings. Immigration Court outcomes in credible fear reviews (CFR) have recently undergone a dramatic change. Starting in January 2018, court findings of credible fear began to plummet. By June 2018, only 14.7 percent of the CFR court decisions found the asylum seeker had a “credible fear.” This was just half the level that had prevailed during the last six months of 2017.
These very recent data from the Immigration Court provide an early look at how the landscape for gaining asylum may be shifting under the current administration. Unless asylum seekers, including parents with children, arriving at the southwest border pass this initial CFR review, they are not even allowed to apply for asylum. As a consequence, individuals who don’t pass these reviews face being quickly deported back to their home countries.
The latest available case-by-case court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University document that depending upon the particular Immigration Court undertaking the credible fear review, the proportion of asylum seekers passing this screening step varied from as little as 1 percent all the way up to 60 percent – a sixty-fold difference. Since October 2015, for example, at least half passed their credible fear reviews when these were conducted by the Immigration Courts in Arlington, Virginia (60% passed), Chicago, Illinois (52% passed), Pearsall, Texas (51% passed), and Baltimore, Maryland (50% passed). In contrast, few were found to have credible fear when their review took place in Immigration Courts based in Lumpkin, Georgia (only 1% passed) and Atlanta, Georgia (only 2% passed).
Which judge is assigned to undertake this review can also have a dramatic impact. Judges on the Pearsall, Texas and San Antonio, Texas Immigration Courts found as few as 4 percent demonstrated credible fear, while others on the same two courts found 94 percent with such fear.
Previous reports by TRAC and others have long documented wide judge-to-judge disparities in asylum decisions. This report breaks new ground in showing that similar differences also exist earlier in the asylum process in the determination of who is allowed to apply for asylum.
To read the full report, including specifics for each Immigration Court, go to:
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 June 2018. For an index to the full list of TRAC’s immigration tools go to:
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:
To state the obvious, if we believe in our Constitution and the Bill of Rights, we simply can’t tolerate a “court” run, improperly influenced, and manipulated by a xenophobic, White Nationalist, racist enforcement zealot like Jeff Session.
Time for “regime change” that includes an independent U.S. Immigration Court dedicated to insuring Due Process! Get out the vote this fall!
Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
Greetings. The latest available data from the Immigration Court reveals a sharp uptick in the proportion of cases involving immigrants who have been living in the U.S. for years. During March 2018, for example, court records show that only 10 percent of immigrants in new cases brought by the Department of Homeland Security had just arrived in this country, while 43 percent had arrived two or more years ago. Fully twenty percent of cases filed last month involved immigrants who had been in the country for 5 years or more.
In contrast, the proportion of individuals who had just arrived in new filings during the last full month of the Obama Administration (December 2016) made up 72 percent, and only 6 percent had been here at least two years.
Over time, immigration enforcement priorities have varied, as have the ebb and flow of illegal entrants, visa over-stayers, and asylum seekers. Using the court’s records on the date of entry of each individual, the report examines how long these immigrants typically had resided in the U.S. before their cases were initiated.
To read the full report covering the period from October 2000 through March 2018 go to:
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 March 2018. For an index to the full list of TRAC’s immigration tools go to:
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:
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
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The insanity, cruelty, lack of judgment, bias, dishonesty, and failure to respect the Constitution continues in “Gonzoland.” Unless Congress gets some backbone fast, our justice system will be in shambles!
“. . . . So why don’t people correct these misconceptions? One reason is that people are loath to scrutinize statements that confirm what they already believe. People are particularly receptive to believe statements from trusted sources (the departments of Justice and Homeland Security, if not the president). If people already believe that immigrants pose a threat, they are unlikely to probe whether the White House is phrasing its statistics appropriately.
Confusing the inverse probabilities of terrorist acts and foreign-born individuals is not merely an academic issue. Proponents of restrictive immigration polices continue to use fear-based, inverse fallacy tactics. During the recent government shutdown, Trump released an ad promising to “fix our border and keep our families safe,” adding, “Democrats who stand in our way will be complicit in every murder committed by illegal immigrants.”
Citing that “3 in 4” terrorists are foreign born implies, erroneously, that excluding the foreign born would substantially reduce a large threat to this country. But at what cost? How many of the 41 million lives of immigrants and refugees should be ruined to further reduce an already minuscule threat? Let’s not use statistical lies to destroy lives.”
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Read the complete article at the link.
Under “Gonzo” the DOJ has become one of the leading purveyors of false, distorted, or otherwise misrepresented data to promote White Nationalism and unfairly target immigrants and ethnic groups. He couldn’t even get his story straight before Congress. There is good reason to disbelieve or be skeptical of everything coming out of Gonzo’s mouth and the DOJ.
And, it’s not just my observation. Gonzo consistently fails “Fact Checker” analyses on his pejorative statements about immigration and law enforcement. He’s just “not credible.” That”s a major problem for him, the DOJ, and our country.
And so in this gateway city on the Rio Grande [Laredo], inside a building rimmed with barbed wire, past security guards and locked doors, immigration judges on short details started hearing cases in a cramped courtroom that was hastily arranged in March.
But seven months later, the case of Oscar Arnulfo Ramírez, an immigrant from El Salvador, was not going quickly. He was sitting in detention, waiting for a hearing on his asylum claim. And waiting some more.
The court files, his lawyer discovered, showed that Ramírez’s case had been completed and closed two months earlier. Since the case was closed, the court clerk couldn’t schedule a new hearing to get it moving again. In fact, the clerk didn’t even have a record that he was still detained.
“It’s as if he’s non-existent,” his lawyer,, said. “He’s still in a detention center. He’s still costing the government and the American people tax dollars. But there’s no proceeding going on. He’s just sitting there doing completely nothing.”
Ramírez’s case was one of many signs of disarray in the improvised court in Laredo, which emerged during a weeklong visit in late October by a reporter from The Marshall Project and a radio producer from This American Life. Instead of the efficiency the Trump administration sought, the proceedings were often chaotic. Hearing schedules were erratic, case files went missing. Judges were exasperated by confusion and delays. Like Ramírez, detainees were lost in the system for months on end.
For a view of the border crossing in Laredo and the grinding process migrants begin there, check out Kirsten Luce’s photosfrom the gateway on the Rio Grande.
With the intense pressure on the court to finish cases, immigrants who had run from frightening threats in their home countries were deported without having a chance to tell the stories that might have persuaded a judge to let them stay.
. . . .
For Paola Tostado, the lawyer, Ramírez was not the first client to fall through the cracks in Laredo. Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.
Another Salvadoran asylum-seeker she represented, whose case was similarly mislaid, had gone for four months with no hearing and no prospect of having one. Eventually he despaired. When ICE officers presented him with a document agreeing to deportation, without consulting Tostado he had signed it.
“I’ve had situations where we come to an individual client who has been detained over six months and the file is missing,” she said. “It’s not in San Antonio. It’s not in Laredo. So where is it? Is it on the highway?”
In her attempts to free Ramírez, Tostado consulted with the court clerk in San Antonio, with the ICE prosecutors and officers detaining him, but no one could say how to get the case started again.
Then, one day after reporters sat in the courtroom and spoke with Tostado about the case, ICE released him to pursue his case in another court, without explanation.
But by December Tostado had two other asylum-seekers who had been stalled in the system for more than seven months. She finally got the court to schedule hearings for them in the last days of the year.
“I think the bottom line is, there’s no organization in this Laredo court,” Tostado said. “It’s complete chaos and at the end of the day it’s not fair. Because you have clients who say, I just want to go to court. If it’s a no, it’s a no. If it’s a yes, it’s a yes.”
Unlike criminal court, in immigration court people have no right to a lawyer paid by the government. But there was no reliable channel in Laredo for immigrants confined behind walls to connect with low-cost lawyers. Most lawyers worked near the regular courts in the region, at least two hours’ drive away.
Sandra Berrios, another Salvadoran seeking asylum, learned the difference a lawyer could make. She found one only by the sheerest luck. After five months in detention, she was days away from deportation when she was cleaning a hallway in the center, doing a job she had taken to keep busy. A lawyer walked by. Berrios blurted a plea for help.
The lawyer was from a corporate law firm, Jones Day, which happened to be offering free services. Two of its lawyers, Christopher Maynard and Adria Villar, took on her case. They learned that Berrios had been a victim of vicious domestic abuse. A Salvadoran boyfriend who had brought her to the United States in 2009 had turned on her a few years later when he wanted to date other women.
Once he had punched her in the face in a Walmart parking lot, prompting bystanders to call the police. He had choked her, burned her legs with cigarettes, broken her fingers and cut her hands with knives. Berrios had scars to show the judge. She had a phone video she had made when the boyfriend was attacking her and records of calls to the Laredo police.
The lawyers also learned that the boyfriend had returned to El Salvador to avoid arrest, threatening to kill Berrios if he ever saw her there.
She had started a new relationship in Texas with an American citizen who wanted to marry her. But she’d been arrested by the Border Patrol at a highway checkpoint when the two of them were driving back to Laredo from an outing at a Gulf Coast beach.
After Berrios been detained for nine months, at a hearing in July with Maynard arguing her case, a judge canceled her deportation and let her stay. In a later interview, Berrios gave equal parts credit to God and the lawyers. “I would be in El Salvador by this time, already dead,” she said. “The judges before that just wanted to deport me.”
. . . .
We have heard frustration across the board,” said Ashley Tabaddor, a judge from Los Angeles who is the association [NAIJ] president. She and other union officials clarified that their statements did not represent the views of the Justice Department. “We’ve definitely heard from our members,” she said, “where they’ve had to reset hundreds of cases from their home docket to go to detention facilities where the docket was haphazardly scheduled, where the case might not have been ready, where the file has not reached the facility yet.”
Another association official, Lawrence Burman, a judge who normally sits in Arlington, Va., volunteered for a stint in a detention center in the rural Louisiana town of Jena, 220 miles northwest of New Orleans. Four judges were sent, Burman said, but there was only enough work for two.
“So I had a lot of free time, which was pretty useless in Jena, Louisiana,” Burman said. “All of us in that situation felt very bad that we have cases back home that need to be done. But in Jena I didn’t have any of my files.” Once he had studied the cases before him in Jena, Burman said, he was left to “read the newspaper or my email.”
The impact on Burman’s case docket back in Arlington was severe. Dozens of cases he was due to hear during the weeks he was away had to be rescheduled, including some that had been winding through the court and were ready for a final decision. But with the enormous backlog in Arlington, Burman had no openings on his calendar before November 2020.
Immigrants who had already waited years to know whether they could stay in the country now would wait three years more. Such disruptions were reported in other courts, including some of the nation’s largest in Chicago, Miami and Los Angeles.
“Many judges came back feeling that their time was not wisely used,” Judge Tabaddor, the association president, said, “and it was to the detriment of their own docket.”
Justice Department officials say they are pleased with the results of the surge. A department spokesman, Devin O’Malley, did not comment for this story but pointed to congressional testimony by James McHenry, the director of the Executive Office for Immigration Review. “Viewed holistically, the immigration judge mobilization has been a success,” he said, arguing it had a “positive net effect on nationwide caseloads.”
Justice Department officials calculated that judges on border details completed 2700 more cases than they would have if they had remained in home courts. Officials acknowledge that the nationwide caseload continued to rise during last year, reaching 657,000 cases by December. But they noted that the rate of growth had slowed, to .39 percent monthly increase at the end of the year from 3.39 percent monthly when Trump took office.
Judge Tabaddor, the association president, said the comparison was misleading: cases of immigrants in detention, like the ones the surge judges heard, always take priority and go faster than cases of people out on release, she said. Meanwhile, according to records obtained by the National Immigrant Justice Center, as many as 22,000 hearings in judges’ home courts had to be rescheduled in the first three months of the surge alone, compounding backlogs.
. . . .”
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Read Julia’s complete article at the above link. Always enjoy getting quotes from my former Arlington colleague Judge Lawrence O. (“The Burmanator”) Burman. He tends to “tell it like it is” in the fine and time-honored Arlington tradition of my now retired Arlington colleague Judge Wayne R. Iskra. And, Judge Iskra didn’t even have the “cover” of being an officer of the NAIJ. Certainly beats the “pabulum” served up by the PIO at the “Sessionized” EOIR!
Also, kudos to one of my “former firms” Jones Day, its National Managing Partner Steve Brogan, and the Global Pro Bono Counsel Laura Tuell for opening the Laredo Office exclusively for pro bono immigration representation, As firms like jones Day take the “immigration litigation field,” and give asylum applicants the “A+ representation” they need and deserve, I predict that it’s going to become harder for the Article III U.S. Courts to ignore the legal shortcomings of the Immigration Courts under Sessions.
A brief aside. My friend Laura Tuell was a “Guest Professor” during a session of my Immigration Law & Policy class at Georgetown Law last June. On the final exam, one of my students wrote that Laura had inspired him or her to want a career embodying values like hers! Wow! Talk about making a difference on many levels!And talk about the difference in representing real valuesas opposed to the legal obfuscation and use of the legal system to inflict wanton cruelty represented by Sessions and his restrictionist ilk.
We also should recognize the amazing dedication and efforts of pro bono and “low bono” lawyers like Paola Tostado, mentioned in Julia’s report. “Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.” What do you think that does to her law practice? As I’ve said before, folks like Paola Tostado, Christopher Maynard, Adria Villar, and Laura Tuell are the “real heroes” of Due Process in the Immigraton Court system.
Compare the real stories of desperate, bona fide asylum seekers and their hard-working dedicated lawyers being “stiffed” and mistreated in the Immigration Court with Sessions’s recent false narrative to EOIR about an asylum system rife with fraud promoted by “dirty attorneys.” Sessions’s obvious biases against migrants, both documented and undocumented, and particularly against Latino asylum seekers on the Southern Border, make him glaringly unqualified to be either our Attorney General or in charge of our U.S. Immigration Court system.
No amount of “creative book-cooking” by EOIR and the DOJ can disguise the human and due process disaster unfolding here. This is exactly what I mean when I refer to “”Aimless Docket Reshuffling” (“ADR”), and it’s continuing to increase the Immigration Court backlogs (now at a stunning 660,000) notwithstanding that there are now more Immigration Judges on duty than there were at the end of the last Administration.
I’ll admit upfront to not being very good at statistics and to being skeptical about what they show us. But, let’s leave the “Wonderful World of EOIR” for a minute and go on over to TRAC for a “reality check” on how “Trumpism” is really working in the Immigration Courts. http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php
On September 30, 2016, near the end of the Obama Administration, the Immigration Court backlog stood at a whopping 516,000! Not good!
But, now let go to Nov. 30, 2017, a period of 14 months later, 10 of these full months under the policies of the Trump Administration. The backlog has mushroomed to a stunning 659,000 cases — a gain of 153,000 in less than two years!And, let’s not forget, that’s with more Immigration Judges on board!
By contrast, during the last two full years of the Obama Administration — September 30, 2014 to September 30, 2016 — the backlog rose from 408,000 to 516,000. Nothing to write home about — 108,000 — but not nearly as bad as the “Trump era” has been to date!
Those who know me, know that I’m no “fan” of the Obama Administration’s stewardship over the U.S. Immigration Courts. Wrongful and highly politicized “prioritization” of recently arrived children, women, and families from the Northern Triangle resulted in “primo ADR” that sent the system into a tailspin that has only gotten worse. And, the glacial two-year cycle for the hiring of new Immigration Judges was totally inexcusable.
But, the incompetence and disdain for true Due Process by the Trump Administration under Sessions is at a whole new level. It’s clearly “Amateur Night at the Bijou” in what is perhaps the nation’s largest Federal Court system. And, disturbingly, nobody except a few of us “Immigration Court Groupies” seems to care.
So, it looks like we’re going to have to stand by and watch while Sessions “implodes” or “explodes” the system. Then, folks might take notice. Because the collapse of the U.S. Immigration Courts is going to take a big chunk of the Article III Federal Judiciary with it.
Why? Because approximately 80% of the administrative review petitions in the U.S. Courts of Appeals are generated by the BIA. That’s over 10% of the total caseload. And, in Circuits like the 9th Circuit, it’s a much higher percentage.
The U.S. Immigration Judges will continue to be treated like “assembly line workers” and due process will be further short-shrifted in the “pedal faster” atmosphere intentionally created by Sessions and McHenry. The BIA, in turn, will be pressured to further “rubber stamp” the results as long as they are removal orders. The U.S. Courts of Appeals, and in some cases the U.S. District Courts, are going to be left to clean up the mess created by Sessions & co.
We need an independent Article I U.S. Immigration Court with competent, unbiased judicial administration focused on insuring individuals’ Due Process now! We’re ignoring the obvious at our country’s peril!
Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
Greetings. During the first two months of FY 2018, the Immigration Court number of pending cases climbed by an additional 30,000. According to the latest case-by-case court records, the backlog at the end of November 2017 had reached 658,728, up from 629,051 at the end of September 2017. Despite the hiring of many additional immigration judges, there has been no apparent slackening in the growth of this backlog. The rate of growth during the first two months of FY 2018 was in fact greater than the pace of growth during FY 2017.
California leads the country with the largest Immigration Court backlog of 123,217 cases. Texas is second with 103,384 pending cases as of the end of November 2017, followed by New York with 89,489 cases.
These and other findings are based upon very current case-by-case court records that were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. For further highlights see:
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 November 2017. For an index to the full list of TRAC’s immigration tools go to:
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:
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
———————————————————————————
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://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 http://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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Of personal interest to me, the U.S. Immigration Court in Arlington, Virginia now has a pending caseload approaching 40,000 cases! Yet, amazingly, the “powers that be” apparently are still detailing Arlington immigration Judges to other dockets!Talk about ADR in action! No wonder cases are being set for Individual Hearing dates 4-5 years in the future!
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
Greetings. Very recent Immigration Court records reveal that the proportion of asylum seekers who are unable to obtain representation has risen markedly. Ten years ago during FY 2007, only 13.6 percent were unrepresented. Five years ago (FY 2012), 15.8 percent were unrepresented. In FY 2017 the unrepresented figure was 20.6 percent.
At the same time, asylum decisions were up sharply during FY 2017. A total of 30,179 cases were decided by judges last year, a marked increase from 22,312 cases in FY 2016. This is the largest number of asylum cases decided in any one year since FY 2005. While asylum grants increased, denials grew even faster. This pushed the percent who were denied asylum to 61.8 percent. This is the fifth year in a row that denial rates have risen. Five years ago the denial rate was just 44.5 percent.
Without representation, the deck is stacked against an asylum seeker. Statistically, only one out of every ten win their case. With representation, nearly half are successful.
During FY 2012 – FY 2017, Jamaica had the highest denial rate (91.4%), followed closely by Laos (89.9%), the Philippines, (89.7%) and Mexico (88.0%). At the other extreme, the Soviet Union had the lowest denial rate (9.5%), with Byelorussia and Egypt with almost as low denial rates at 11.1 percent each.
More details on national trends, plus the impact of representation status and nationality on asylum outcome, are available in the second of TRAC’s two-part series available at:
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 October 2017. For an index to the full list of TRAC’s immigration tools go to:
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:
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
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Rather than working on reforms that would increase access to pro bono counsel for asylum seekers, the Administration has intentionally “ramped up” detention and placed so called “Detained Courts” in obscure locations where access to pro bono counsel and ability to prepare and present cases is restricted.
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
Greetings. Very recent data from the Immigration Courts, current through September 2017, reveals that the outcome for asylum seekers continues to depend on the identity of the immigration judge assigned to hear the case. In the San Francisco as well as the Newark Immigration Courts, for example, the odds of being granted asylum during FY 2012 – FY 2017 ranged between a high of 90 percent down to a low of only 3 percent depending upon which immigration judge the asylum seeker was assigned.
The two courts with the largest number of asylum cases, New York and Los Angeles, also had sizable judge-to-judge differences in asylum outcomes. In the New York Immigration Court judge denial rates ranged from a low of 3.0 percent up to a high of 58.5 percent. The disparity in asylum denial rates among the judges on the Los Angeles court ranged from a low of 29.4 percent denied to a high of 97.5 percent.
Immigration judge-to-judge decision disparities have long existed and are well documented. Despite widespread concern about this problem, between 2010 and 2016 judge-to-judge decision disparities actually increased. This year’s report, updated through FY 2017, shows that disparity levels had become more extreme on both the Newark and San Francisco courts. Judge-to-judge differences for the Chicago Immigration Court also increased. The Los Angeles and San Diego courts saw modest improvement.
To view results for the complete list of courts see the full report at:
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 October 2017. For an index to the full list of TRAC’s immigration tools go to:
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:
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
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The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://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 http://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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More than a decade ago, three universally respected “scholar litigators,” my good friends and Georgetown Law colleagues Professors Andy Schoenholtz, Phil Schrag, and Jaya Ramirez-Nogales (now at Temple Law) exposed this problem. While there have been some attempts to address it, and results actually appeared to be improving for a time, the problem persists.
Whatever the solution is, I’m sure of what it isn’t:running more cases through the Immigration Court System faster, hiring more Immigration Judges without giving them sufficient training, a weak Appellate Board that won’t speak up for the rights of asylum seekers, and putting “production quotas” on Immigration Judges.
“Haste makes waste” so-called “solutions” only make things worse. Promoting quality decision-making is a more nuanced and painstaking process.
I have no doubt that this system still denies asylum and other forms of legal protection in far too many cases. A more realistic and appropriately generous approach to asylum would force the DHS to grant more of these cases at the Asylum Office and would shorten hearing times for certain types of “clearly grantable” cases.
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
Greetings. Since President Trump assumed office, the Secure Communities program has been promoted as essential to implement this administration’s agenda for ramped up deportations. The agency contends that “Secure Communities has proven to be one of ICE’s most important tools for identifying and removing criminal aliens as well as repeat immigration violators.”
However, analyses of the agency’s own internal records document that the use of detainers under this program is not living up to these claims. For example, according to the latest available ICE data only about 2.5 percent of so-called Secure Communities removals were connected to the use of detainers sent to local law enforcement agencies. When compared with ICE removals from all sources, this component made up an even smaller proportion – less than 1 percent of all ICE removals.
Furthermore, the number of convicted criminals that ICE claims to have deported through this program under the Trump administration is four times higher than what the evidence shows has actually happened.
The results of stepped up enforcement appear quite small so far. By July 2017 there were only 529 additional Secure Communities removals of individuals convicted of crimes as compared with removals under President Obama. For those convicted of serious crimes, the average monthly change was just 128 more individuals. And few of these appear to have involved the use of ICE detainers.
These statistics current through July 2017 were compiled from ICE internal records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in response to a series of Freedom of Information Act (FOIA) requests, following lawsuits that TRAC’s co-directors filed against the agency.
A new online query tool provides public access to the data TRAC has compiled tracking all Secure Communities removals month-by-month for each state and county in the country. Go to:
Additional tools are also available that track ICE detainers (updated through July 2017) and all ICE removals (updated through June 2017). For an index to the full list of TRAC’s immigration tools go to:
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:
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
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Hardly a surprise to those of us who actually understand the system that “Gonzo’s” war on so-called “Sanctuary Cities” is based on a bogus premise. Detainers are, and always have been, marginal to effective immigration enforcement. And, the program of turning ethnic communities against the authorities — both local and Federal — demonstrably makes us less safe as a country. With the Trump Administration, it’s always about the White Nationalist agenda — not effective law enforcement.
“Immigrants in Chicago have seen a dramatic increase in legal representation since earlier this year, thanks in part to a fund established by the city, according to an independent study released this week by researchers at Syracuse University.
According to the report, the percentage of immigrants in Chicago who were represented in deportation hearings spiked from 30 percent in May to 57 percent in August.
“The more representation we have in court, the more we have a balanced system,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, a Chicago-based immigrant advocacy group that partnered with the city to help give legal counsel and services to thousands of immigrants threatened with deportation.
The Legal Defense Fund, approved by the Chicago City Council in January, uses $1.3 million in city funds to pay for immigrants’ legal services or to help them navigate other options to try to avoid deportation.
The fund has been used to hire attorneys at the National Immigrant Justice Center and also issue grants to 10 community organizations for outreach. So far, 1,560 Chicago residents have received free legal screenings, and immigrants have had representation in court for 766 cases. Advocates hope to offer legal representation in 1,000 cases and Know Your Rights training sessions to 20,000 people in the first year, according to officials at the center.
“Good legal advice … reduces the chances of (immigrants) being deported to a country where their lives may be in danger or of them being permanently separated from their families,” McCarthy said.
. . . .
The TRAC report showed that immigrants in all pending cases in Chicago and the collar counties had higher odds of representation than those in rural areas of the state — inconsistencies that mirror those in other states. In Cook County, immigrants were represented 72 percent of the time; 77 percent in DuPage County; 67 percent in Lake; 76 percent in Kane; 80 percent in Will; and 76 percent in McHenry. Meanwhile, immigrants in downstate Sangamon County were represented 34 percent of the time, and those in Morgan County were represented 39 percent of the time.
Because the data on legal representation is the first of its kind collected, researchers hope it will help both immigrant advocacy groups and the public understand how effective funds like the one in Chicago are over time, Long said.
“Chicago is part of a movement of trying to come up with methods to provide representation. The natural question is how effective is it? Being able to monitor that … we thought would be very useful,” she said.
Laura Mendoza, an immigration organizer for the Resurrection Project, said many immigrants she works with are grateful to learn there is a fund to help cover the cost of legal counsel. In some cases, immigrants facing deportation need documentation from a police station to prove they are victims of a crime who may qualify to stay. Lawyers and legal advocates walk them into the police stations to help get the needed paperwork.
“That could be incredibly intimidating. They may not speak the language; they may not know how things work,” Mendoza said. “They’re incredibly thankful that there is the ability to be able to get a legal consultation and to get some clarity on the questions that they have.”
Reem Odeh, a Chicago immigration attorney who owns her own firm, said she was glad to see more immigrants gaining access to attorneys because of the complexity of most cases.
“The laws for immigration are so Draconian, which means you forget one technicality or blow one deadline and you may not be able to reopen that case permanently,” Odeh said. “You drop the ball on one element and you could potentially destroy that person’s future for him and his entire family.”
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Representation in Immigration Court saves lives. Many of the individual human beings that restrictionists like to demean by calling “illegals” actually have a right to remain in the US in some status. And, all of them in the US are entitled to Due Process under our Constitution. Without lawyers, Due Process is unlikely to be achieved.
“The Department of Justice said Friday it is aiming to slash the massive immigration court backlog in half by 2020 by adding judges, upgrading technology and refusing to tolerate repeated delays in deportation cases.
Officials, who briefed reporters on condition that they not be identified by name, said the effort is part of the Trump administration’s broad plan to more efficiently handle cases of undocumented immigrants, who number 11 million nationwide.
The administration has reversed Obama-era policies that allowed prosecutors to indefinitely postpone low-priority cases, which the Justice Department officials said allowed some immigrants to delay “inevitable” deportations. In other cases, they said, immigrants who deserved to win their cases were delayed for years because of the backlog.
The immigration court backlog has tripled since 2009, the year former president Obama took office, to more than 630,000 cases in October.
“That is what this administration is committed to, getting this done right, ensuring that we’re never in this place again,” a Justice Department official said. “Really and truly, when you look at the numbers . . . it reflects the fact that the last administration likely wasn’t as committed to ensuring that the system worked the way that Congress intended it to.”
The agency, which oversees the administrative immigration courts, said it plans to hire new immigration judges, use technology such as videoconferencing, and increase judges’ productivity by setting case-completion guidelines, though officials would not give details.
The department also will have a “no dark courtrooms” policy, the officials said, explaining that there are at least 100 courtrooms nationwide that are empty every Friday because of judges’ alternate work schedules. The Justice Department is tapping retired judges to fill those courts.
The immigration court overhaul comes as the Trump administration is carrying out policies that could generate even more cases in coming months. Arrests and deportations from the interior of the United States are rising sharply, and the Trump administration has ended Obama-era protections for some undocumented immigrants, including 690,000 undocumented immigrants who arrived in the United States as children.
By Monday, the Trump administration is also expected to say if it will renew temporary protected status for thousands of longtime immigrants from Honduras and Nicaragua whose permits expire next year.
The Justice Department officials said they are no longer widely using certain protections for undocumented immigrants, including a tool known as prosecutorial discretion that allowed the government to set aside low-priority deportation cases.
DOJ officials criticized immigration lawyers, saying they “have purposely used tactics designed to delay” immigration cases. As of 2012, the officials said, there were an average of four continuances for each case before the court.
Gregory Chen, director of government relations for the American Immigration Lawyers Association, said the administration’s plan to cut the backlog would “undermine judicial independence” in the immigration courts.
“This administration has been extremely hostile toward the judiciary and the independence of immigration judges, as well as other judges,” Chen said.
Speeding up cases depends partly on congressional funding. It also rests partly on the actions of immigration judges, who have expressed concerns about due process for immigrants, many of whom are facing deportation to some of the world’s most violent countries. Immigrants are not entitled to a government-appointed lawyer in these courts and often handle cases on their own.
The Justice officials would not comment on reports that they will impose case-completion quotas on judges, which raised an outcry from the judges’ union. But the officials said they would give judges clear standards to complete cases and add more supervisors.
Officials say they are already seeing results from efforts this year to improve efficiency. From February to September, judges ordered 78,767 people to leave the country, a 33 percent jump over the same period in 2016. The total number of final decisions, which includes some immigrants who won their cases, is 100,921.”
Using retired U.S. Immigration Judges to fill in while Immigration Judges are on leave or otherwise scheduled to be out of court is a good idea. Indeed, the National Association of Immigration Judges (“NAIJ”) has been pushing this idea since the Clinton Administration with no results until now. Additionally, finally taking advantage of the available “Phased Retirement Options” for the the many Immigration Judges nearing retirement could also be helpful.
Over time, hiring additional Immigration Judges could be helpful, at least in theory. But, that depends on whether the hiring is done on a merit basis, the new judges are properly trained, and they have the space, equipment, and support staff to function. The DOJ/EOIR’s past record on accomplishing such initiatives has been beyond abysmal. So, it’s just as likely that additional hiring will harm the Immigraton Courts’ functioning as it is that it will help.
THE BAD:
“Productivity standards” are totally inappropriate for an independent judiciary. They are almost certain to infringe on due process by turning judges into “assembly line workers.” Moreover, if hiring is done properly, judges should be self-motivated professionals who don’t need “Micky Mouse performance evaluations” to function. While it might be helpful to have some “periodic peer review” involving input from those appearing before the courts and judges of courts reviewing the judges’ work, such as takes place in some other independent judicial systems, that clearly isn’t they type of system this Administration has in mind.
More use of Televideo is problematic. In person hearings are definitely better for delivering due process. The EOIR Televideo equipment tends to be marginal from a technology standpoint. “Pushing the envelope” on Televideo could well force the Article IIIs to finally face up and hold at least some applications of this process unconstitutional.
More “Supervisory Judges” are totally unnecessary and a waste of resources. In the “EOIR World,” Supervisory Judges often don’t hear cases. Moreover, as noted previously, professional judges need little, if any, real “supervision.” The system might benefit from having local Chief Judges (“first among equals”), like in other independent judicial systems, who can address administrative issues with the Court Administrator and the public, But, judges don’t need supervision unless the wrong individuals are being selected as judges. And, as in the U.S. District Courts, local Chief Judges should carry meaningful case loads.
Every other court system in the U.S., particularly the U.S. District Courts, rely on heavy doses of “Prosecutorial Discretion” (“PD”) by government prosecutors to operate. By eliminating PD from the DHS Chief Counsels, then touting their misguided actions, this Administration has guaranteed the ultimate failure of any backlog reduction plan. Moreover, this stupid action reduces the status of the DHS Assistant Chief Counsels. There is no other system I’m aware of where the enforcement officials (“the cops”) rather than professional prosecutors make the decisions as to which cases to prosecute. PD and sensible use of always limited docket time is part of the solution, not the problem, in the Immigration Courts.
THE UGLY:
The DOJ and EOIR continue to perpetuate the myth that private attorneys are responsible for the backlogs. No, the backlogs are primarily the result of Congressional negligence multiplied by improper politically motived docket manipulation and reschuffling to meet DHS enforcement priorities by the last three Administrations, including this one! This Administration was responsible for unnecessarily “Dark Courtrooms” earlier this year in New York and other heavily backlogged Immigration Courts.
Although not highlighted in this article, EOIR Acting Director James McHenry recently admitted during Congressional testimony that EOIR has been working on e-filing for 16 years without achieving any results! Thats incredible! McHenry promised a “Pilot Program” in 2018 with no telling when the system will actually be operational. And DOJ/EOIR has a well-established record of problematic and highly disruptive “technology rollouts.”
THE INCREDIBLE:
As usual, the DOJ/EOIR “numbers” don’t add up. EOIR “touts” compleating approximately 100,000 cases in the 7-month period ending on August 31, 2017. That’s on a pace to complete fewer than 200,000 cases for a fiscal year. But, EOIR receives an average of at least 300,000 new cases each year (even without some of the “Gonzo” Enforcement by the Trump DHS). So, EOIR would have to “pick up the pace” considerably just to keep the backlogs from growing (something EOIR hasn’t done since before 2012). Not surprisingly, TRAC and others show continually increasing backlogs despite having more judges on board. To cut the backlog from 640,000 to 320,000 (50%) by 2020, the courts would have to produce an additional 160,000 annual completions in 2018 and 2019! That, in turn, would require completing a total of at least 460,000 cases in each of those years. That’s an increase of 230% over the rate touted by DOJ/EOIR in the Post article. Not going to happen, particularly since we’re already more than one month into FY 2018 and Congress has yet to authorize or appropriate the additional resources the DOJ wants!
WHAT’S CLEAR:
The DOJ hocus pocus, fake numbers, unrealistic plans, political scheming, cover-ups, blame shifting, and gross mismanagement of the U.S. Immigration Courts must end!
Unless and until Congress creates an independent, professionally managed Article I Immigration Court, any additional resources thrown into the current Circus being presided over by Jeff Sessions’s DOJ would be wasted.
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