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TAL @ CNN – TOP “KAKISTOCRAT” JEFF SESSIONS ENTHUSIASTICALLY IMPLEMENTS TRUMP’S IMMORAL, OFTEN LAWLESS, AND PROBABLY UNCONSTITUTIONAL WHITE NATIONALIST IMMIGRATION AGENDA – This Should Disabuse Everyone, Including Federal Article III Courts, Of The (Fictional) “Independence” Or “Professional Responsibility” Of The USDOJ!

Sessions, Justice Department take lead as public face of Trump’s immigration policy

By: Tal Kopan, CNN

If there’s one person besides President Donald Trump who’s associated with his immigration policies, it’s Attorney General Jeff Sessions.

Regardless of whether it’s his agency’s core jurisdiction.

Sessions and the Justice Department have taken a lead role in announcing and defending the administration’s immigration efforts on a number of fronts — including some that only tangentially involve the department.

It was the Justice Department press office that put out a “fact check” statement Tuesday responding to Oregon Democratic Sen. Jeff Merkley’s publicized border trip to visit detention facilities run by components of the Departments of Homeland Security and of Health and Human Services, and it was Sessions who went in front of cameras the day the DHS announced the policy that would result in more families separated at the border.

Even going back to September, it was Sessions who announced on camera the end of the Deferred Action for Childhood Arrivals policy, which was rescinded by the DHS citing legal guidance from the Justice Department. Sessions has made immigration and border security at least a passing reference in most speeches he’s given and has made multiple trips to the border to highlight the issue.

His investment in the issue doesn’t mean other agencies aren’t involved, nor that his shouldn’t be. Homeland Security Secretary Kirstjen Nielsen has vocally defended the policies in front of Congress and in public appearances. At the time of the DACA decision, the DHS was led by an acting secretary, Elaine Duke, who was not a mouthpiece for the administration’s immigration policies. And Sessions has certainly explored every way his agency could be a player in immigration policy.

But in numerous instances, Sessions has been associated with policies his department would otherwise not have a large role in — and the Justice Department seems to relish taking it on.

Asked for comment, a Justice Department spokesman said Sessions is “proud” to execute the administration’s agenda “in lockstep” with Nielsen. The DHS declined to comment.

A former Obama administration Justice Department immigration official, however, said the department’s hand in making policy is counter to what has traditionally been its role — serving as the government’s lawyer to defend policies.

“It’s unclear what the purpose is of talking about Sen. Merkley at all at the Justice Department,” said Leon Fresco, who served in the Obama administration and is now in private practice. “I think in many cases that agencies are best served by the Department of Justice being perceived as a neutral arbiter on all policies and the agencies being the ones who drive the policy-making agenda. When those roles are blurred, it becomes much harder for the lawyers who have to go to court to have to argue that they don’t have a vested interest in the policies that are being advocated.”

Much more: http://www.cnn.com/2018/06/05/politics/sessions-justice-ownership-immigration/index.html

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It’s no surprise to those who have followed Sessions’ career. Even in the Senate, he was an outspoken voice in the immigration debate, largely to the right of most of his Republican colleagues.

“While Jeff Sessions may have wanted to be attorney general, the area and issue he cared about the most was immigration,” said Peter Boogaard, a former Obama administration spokesman for the White House and DHS who is now with the pro-immigration group FWD.us.

“It’s not something when I worked in the Department of Homeland Security that Justice was trying to do. They were focused on big, large-scale counterterrorism efforts, and big large-scale efforts on public safety and national security,” Boogaard continued. “The Department of Justice did not engage in immigration issues in this capacity and it is surprising that DHS has ceded that ground of authority. But this is not a new trend; this is something that has been the case since the beginning of this administration.”

Pretty much says it all. Sessions “hanging tough” following Trump’s criticism on the Mueller investigation has nothing to do with integrity (gimmie a break — he’d be violating clear ethics and, perhaps, criminal rules if he “un-recused” himself — he’d certainly lose his law license) or protecting the (largely fictional) “independence” of the Justice Department. It has everything to do with a mean and nasty guy with a White Nationalist Agenda wanting to take full advantage of the “chance of a lifetime” to inflict maximum, and perhaps lasting, unnecessary pain and suffering on migrants, women, children and other vulnerable individuals who don’t fit within his “White Nationalist universe.”

Sessions’s tenure “proves beyond a reasonable doubt” that the current Immigration Court system is neither fundamentally fair nor independent and it is incapable, in its current form, of delivering and guaranteeing Due Process for migrants. If and when Congress and/or the Article IIIs are going to recognize the obvious and “do the right thing” is a different question — — one where “the jury is still out.”

PWS

06-06-18

JEREMY STAHL @ SLATE: THE BIG UGLY – SEPARATION OF FAMILIES & DETENTION — TRUMP, SESSIONS, NIELSEN = LIES, IMMORALITY, ILLEGALITY!

https://slate.com/news-and-politics/2018/06/trumps-child-separation-policy-is-a-moral-and-constitutional-abomination.html

JURISPRUDENCE

A Moral and Legal Abomination

The government has offered no substantive legal justification for the Trump administration’s policy of indefinitely separating children from their parents at the border.

By JEREMY STAHL

JUNE 03, 20187:30 PM

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On Thursday, Sen. Dianne Feinstein proposed a law that would bar the intentional separation of asylum-seeking parents from their children when they cross the border. “It’s hard to conceive of a policy more horrific than intentionally separating children from their parents as a form of punishment,” the California Democrat said in a statement publicizing the move.

Affidavits from a February lawsuit filed by the American Civil Liberties Union show precisely what Feinstein describes. The Congolese asylum-seeker at the center of the case, known as “Ms. L,” described having her 6-year-old daughter taken away by the U.S. government without explanation. “She was taken into another room and then I heard her screaming: Don’t take me away from my mommy!” the woman wrote. In court filings, the government questioned whether Ms. L was in fact her child’s mother. The woman had her child returned only after the suit was filed and the government was made to conduct a DNA test that proved her parentage.

“[T]hese terrible policies call into question whether we are in violation of our own laws and our obligations under international law,” Feinstein said in proposing a law to stop the practice of splitting up families at the border. Feinstein is right: There seems to be no coherent legal justification for separating children from their parents, some of whom—like Ms. L—presented themselves at a port of entry as asylum-seekers and have not been charged with any crimes.

The rationale top Trump administration officials have stated publicly—that such a practice will deter undocumented immigrants from seeking asylum at the border—appears to be so patently unconstitutional that the government’s own lawyers have renounced it in court. If the broad outlines here sound familiar, that’s because the legal fight over the policy is shaping up as a replay of the battle over President Donald Trump’s disastrous first travel ban, which was quickly struck down as a blatant violation of due process rights.

A federal judge in San Diego is set to rule any day on the question of whether the government is lawlessly abducting immigrant children at the border. The ACLU is seeking a classwide preliminary injunction to put a stop to the practice. Based on a close reading of legal filings in the case, the public statements of policymakers, and a transcript from a critical hearing last month, it’s difficult to fathom how the judiciary could possibly rule in favor of the government.

In court proceedings last month, Judge Dana Sabraw indicated that the case, Ms. L v. ICE—filed by the ACLU on behalf of Ms. L and other asylum-seeking parents who have had their children taken away—should hinge on the due process clause of the Fifth Amendment. Under a series of Supreme Court precedents, family integrity has long been considered a “fundamental” due process right. Among other rulings, the ACLU’s lawsuit cited the Supreme Court’s opinion in 2000’s Troxel v. Granville, which stated that there is “a fundamental liberty interest of natural parents in the care, custody, and management of their child.” This precedent mandates both that the government show a compelling government interest in separating a child and parent—preventing child abuse, for instance—and that it is using the least restrictive means to fulfill that interest.

In the ACLU’s case, the government has not shown a lawful basis for its policy of indefinitely separating immigrant children from their parents at the border. In fact, government lawyers have denied the existence of any such policy at all. In response to Sabraw’s question about whether the government “has a practice, or perhaps even a policy, of separation of families as a deterrence mechanism,” Justice Department attorney Sarah B. Fabian asserted, “There is not such a policy.”

This claim directly contradicts the administration’s publicly stated reasoning. When asked by CNN in March 2017 about the possibility of separating children from their parents at the border, then–Secretary of Homeland Security John Kelly said, “I am considering, in order to deter more movement along this terribly dangerous network, I am considering exactly that.”

Per the New York Times, that policy was put on hold at the time because it was deemed too controversial. But in the last several months, as Trump has reportedly put intense pressure on his Cabinet to reverse an uptick in border crossings by undocumented immigrants, such a policy appears to have been put into place. Last month, the Washington Post reported that a pilot version of a program of separating families had occurred “in the Border Patrol’s El Paso sector, which includes New Mexico, between July and November 2017, and [the administration] said the number of families attempting to cross illegally plunged by 64 percent.” And in a pair of speeches last month, Attorney General Jeff Sessions seemed to herald the launch of a formal policy, calling it a “zero-tolerance” immigration measure. “If you don’t want your child separated, then don’t bring them across the border illegally,” Sessions said. “It’s not our fault that somebody does that.” Kelly, now Trump’s chief of staff, stated again last month in an interview with NPR that the purpose of “family separation” is deterrence. “The name of the game to a large degree … a big name of the game is deterrence,” he said.

The current secretary of Homeland Security, Kirstjen Nielsen, did not provide a direct answer when asked by NPR if “family separation at the border … [was] meant to act as a deterrent,” explaining that it’s very common for adults to get separated from their children when they commit crimes. In testimony before Congress in April, Nielsen said, “When we separate, we separate because the law tells us to, and that is in the interest of the child.”

In April, the Post reported that portions of the separation policy had been memorialized in a memo—a document that described the maneuver’s deterrent effect:

In a memorandum that outlines the proposal and was obtained by The Washington Post, officials say that threatening adults with criminal charges and prison time would be the “most effective” way to reverse the steadily rising number of attempted crossings. Most parents now caught crossing the border illegally with their children are quickly released to await civil deportation hearings.

“Such a policy would mean separating parents and children, because the parents would be placed in criminal detention, where children cannot be held,” the Post noted.

In a statement provided to the Post, Homeland Security spokeswoman Katie Waldman said, “DHS does not have a policy of separating families at the border for deterrence purposes.” Waldman did justify the splitting of families, though, by claiming it was necessary to combat child smuggling as well as to “protect” children from their own “nefarious” border-crossing parents. “DHS does … have a legal obligation to protect the best interests of the child whether that be from human smugglings, drug traffickers, or nefarious actors who knowingly break our immigration laws and put minor children at risk,” she said.

While the government denies the existence of a concrete policy, the numbers tell a different story. “Customs and Border Protection informed me that 658 children were taken from 638 parents during a 14-day period in May,” Feinstein reported on Thursday. This is a huge uptick from the six-month period between October and April, when the New York Times reported that “more than 700 children”—roughly 120 per month, as compared to 658 in 14 days—were reportedly separated “from adults claiming to be their parents.”

Let’s imagine that, based on all this evidence, Judge Sabraw—who was appointed by George W. Bush—determines there is in fact a new government policy of separating children and parents at the border. The court would then need to examine the government’s stated rationale for enacting such a rule. For the policy to pass constitutional muster, the government needs some legal justification for the indefinite separation of parents from children, even when the parents and children are undocumented immigrants. The Supreme Court held in 2000’s Zadvydas v. Davis that due process rights apply to undocumented immigrants. This holding suggests the government may not separate asylum-seekers from their children indefinitely and without cause. During last month’s arguments, it sounded like the judge believed the policy justification stated by Kelly—deterrence of illegal immigration—was clearly unconstitutional. “A policy of deterring families from entering the United States by separating them … would [that not be] a clear substantive due process violation?” Judge Sabraw asked of Fabian, the government attorney.

“If it was done without any otherwise authority to cause the separation, I think, we might be closer to that problem,” she acknowledged, claiming the government does have such authority stemming from the Immigration and Nationality Act. When Sabraw responded that the government still hadn’t presented a substantive due process rationale, Fabian said the government has a right to separate parents who are jailed for violating the law from their children while those parents are behind bars. The ACLU, in this lawsuit, is not contesting that fact. What it is contesting is the government’s apparent policy of refusing to return children to parents once they’ve served their time—generally around a month for misdemeanor illegal entry—and of taking children from parents who present themselves at a U.S. port of entry seeking asylum and have not been charged with any crime.

When confronted about the legality of these practices, the government has merely asserted they are legal without providing a substantive justification. “They can’t come up with a justification because the truth is that the only justification that makes sense is their perceived view of the deterrence value,” Lee Gelernt, the ACLU attorney litigating the case, told me.

Having reviewed the transcript from the hearing, and having read the government’s legal filings, Gelernt appears to be correct. At May’s hearing, the judge repeatedly questioned Fabian about whether a substantive due process violation had occurred. Fabian asserted it had not. The judge then made clear that the government had to offer an actual argument. “Simply saying there is detention and … therefore the family integrity gives way doesn’t address specifically what’s happening in this case,” Sabraw said. “Doesn’t there have to be some determination in order to comply with Fifth Amendment rights before separately detaining family members?”

Fabian, at this point, simply stated: “We don’t agree that that has to be made.” She then said that when a minor and parent are separated, the Trafficking Victims Protection Reauthorization Act dictates that the minor be placed with another custodian. But she didn’t explain why the decision to indefinitely separate the minor from the parent would be made in the first place.

Later, the judge specifically addressed those situations in which a person has been convicted of an unlawful entry misdemeanor, had their child lawfully separated from them while they were incarcerated, and then been detained by immigration officials separately from their children while awaiting asylum. “Is there any process that [the Department of Health and Human Services] has or DHS has where after a person has served their time, efforts or a process exists to explore the lawful options of reuniting the parent with the child?” Sabraw asked. “There is not a process that would reunite them at that time because she is in ICE custody and remains unavailable,” Fabian responded. “Shouldn’t there be” some process for reuniting “after a person does their time?” the judge asked. Fabian then argued that it is in the best interests of children to remain separated from their detained parent because such a parent is “not going to be a suitable custodian.”

The notion that a child is better off without his parent not only flies in the face of logic, it also contradicts government policies that allow the detention of some undocumented asylum-seekers with their children. If such parents have historically been considered suitable custodians—and in some cases are still considered suitable custodians—how can other similarly situated parents not be considered suitable custodians?

The government ultimately leaned on the argument that DHS must make decisions in a hurry. “The goal is not to prolong that process but to get folks to the location where they can be housed long-term if that is what is going to happen,” Fabian argued. Again, this argument is illogical: It wouldn’t take any longer to decide to keep parents and children together than it would to decide to separate them. Sabraw also asked if DNA testing might help the government distinguish biological parents from child smugglers, as it had in the case of Ms. L. Fabian said she didn’t know if that was “a feasible option.”

The ACLU has asked the court to allow it to add more plaintiffs to Ms. L v. ICE, which was previously filed with two plaintiffs. One of the motions seeking class certification includes affidavits from several other immigrants who’ve had their children taken away at the border. Those affidavits offer more examples of what it looks like when kids as young as 18 months old are literally ripped away from their parents.

Testimony of Mr. U:

All I can remember is how much my son and I were both crying as they took him away. I do not recall anyone questioning whether I am really his biological father or whether I was a danger to him or abusive in any way. I even had my son’s birth certificate proving I am his father. … It has been six months since I last saw my son.

Testimony of Ms. G:

Shortly after arriving, I was told that I was going to be separated from my daughter. There were no doubts expressed that I was my daughter’s biological mother and I have a birth certificate to show our relationship. They did not say that I was a danger to my daughter or was abusive. … I know that [my children] are having a very hard time detained all by themselves without me. They are only six and four years old in a strange country and they need their parent. I hope I can be with my children very soon. I miss them and am scared for them.

Testimony of Ms. J. I. L.

That day, March 13, a woman came to pick up my kids. I was given only five minutes to say goodbye before J.S.P.L. and D.A.P.L. were torn from me. My babies started crying when they found out we were going to be separated. It breaks my heart to remember my youngest wail, “Why do I have to leave? Mami, I want to stay with you!” … In tears myself, I asked my boys to be brave, and I promised we would be together again soon. I begged the woman who took my children to keep them together so they could at least have each other. She promised she would, and she left with my boys. … I am particularly worried about my older son J.S.P.L. who was not doing well back in El Salvador after he saw MS gang members beat me and threaten me. He did not even want to leave my side to go to the restroom. … Both of my sons need their mother. I do not know if they are eating, sleeping, or even going to the restroom.

Testimony of Mirian:

The U.S. immigration officers then told me that they were taking my [18-month old] son from me. They said he would be going to one place and I would be going to another. I asked why the officers were separating my son from me. They did not provide any reason. … The immigration officers made me walk out with my son to a government vehicle and place my son in a car seat in the vehicle. My son was crying as I put him in the seat. I did not even have a chance to comfort my son, because the officers slammed the door shut as soon as he was in his seat. I was crying too. I cry even now when I think about that moment when the border officers took my son away.

Nielsen has said the government is acting as expeditiously as possible in such cases. “It’s not our intent to separate people one day longer than is necessary to prove that there is in fact a custodial relationship,” she told NPR last month. These affidavits call that claim into question.

Gelernt added that he has never seen anything this dramatic in his many years of working on immigration cases and doesn’t believe the public outrage has been nearly commensurate with the actions taking place.

“I just feel like the debate has become so abstract,” Gelernt told me. “If any policymaker could sit in that room for a day and watch these kids begging and screaming not to be taken away, I don’t know how they could continue this practice.” He says he fears the general population is already forgetting about the stakes of this case: “Roseanne will make another comment and the kids will be sitting there for another eight months, and no one will remember them.”

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Join the New Due Process Army. Fight the Trump/GOP Immigration Abomination!

PWS

06-04-18

WHILE SESSIONS “BLOWS OFF” VIEWS OF “OUR GANG” OF RETIRED US IJs & BIA JUDGES, ARTICLE III (“REAL’) COURTS (& EVEN “OIL”) ARE PAYING ATTENTION – J.C. Andre of Sidley Austin Reports That 10th Circuit Has Remanded Matumona v. Sessions On The Issue Of Access To Counsel!

Judge Schmidt –

Thank you so much for the flattering post about our work with you all in recent months.

On that front, we have two updates for you all.

First, please see attached the as-filed versions of all three briefs filed last week in Cantarero-Lagos v. Sessions, CA5 No. 18-60115 (the petitioner’s brief, our amicus brief, and the nonprofit immigration legal services’ amicus brief). As some of you will see, there were a couple of you whom we could not include as signatories to our brief because we received your joinders too late. Our apologies for not being able to work those of you in by name, but we had a hard filing deadline of 10 p.m. PST on May 23. Rest assured, however, that the helpful comments you gave us along the way are reflected in the brief.

Second, in case some of you were not yet aware, all of our work two months ago in Matumona v. Sessions, CA10 No. 18-09500, paid off. On the government’s concession, the Tenth Circuit last week remanded the case to the BIA. A copy of the remand order also is attached.

It’s been a pleasure and an honor to work with you guys so much over the last two months.

Hope everyone had a great Memorial Day weekend,

jc

JEAN-CLAUDE ANDRÉ

SIDLEY AUSTIN LLP
+1 213 896 6007
JCAndre@Sidley.com

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Here’s a copy of the remand order:

2018-05-22_Order Remanding

And, here’s a link to Hon. Jeffrey Chase’s previous blog on the Matumona Amicus effort:

https://wp.me/p8eeJm-2ko

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The pleasure is all ours, J.C.! Thanks for everything that you and Katelyn Rowe have done for us and to Sidley Austin for agreeing to undertake this important pro bono project!

Always interesting how folks sometimes give your views more attention after you’re gone.

Sessions is setting a course for disaster in the Article III Courts. If he keeps on interfering with the judicial process and listening to only one side (as he has done all his life), DHS & DOJ are likely to get themselves so tied up in litigation that nobody will be deported as the Immigration Court system disintegrates and the Article IIIs move in to clean up the mess.

My current Immigration Law & Policy students at Georgetown Law seemed surprised to learn that there is a so-called “court system” in America where the Chief Prosecutor appoints the judges, sets the rules, and can change the result of any decision that he doesn’t like. Sure sounds like something out of a Kafka novel or the Country Report on a Third World dictatorship.

PWS

05-30-18

LAW YOU CAN USE: HON. DOROTHY HARBECK: “Objections in Immigration Court: Dost Thou Protest Too Much or Too Little?”

Objections in Immigration Court: Dost Thou Protest Too Much or Too Little?1

Hon. Dorothy Harbeck 2

5 Stetson J. Advoc. & L. 1 (2018)

I. Introduction

An objection is generally an expression or feeling of disapproval or opposition. In court, an objection is a reason for disagreeing with some introduction of evidence. 3 In most courts, the reasons and protocols for various objections are set forth in codified rules of evidence; however, the procedures in immigration courts are not so clearly defined since the Federal Rules of Evidence (F.R.E.) are not strictly applied in immigration courts. The rules of evidence applicable to criminal proceedings do not apply to removal hearings. Relevance and fundamental fairness are the only bars to admissibility of evidence in deportation cases. 4 Immigration courts are creatures of statute. They were created under the Immigration & Nationality Act (INA) as part of the Department of Justice (DOJ), specifically the Executive Office for Immigration Review (EOIR). The EOIR has a Practice Manual as well as guidance memoranda. 5 The trials are before the bench (with no jury) and a Digital Audio Recording (DAR) is made of the proceedings. Lawyers conduct direct and cross examinations and sometimes — but not often enough — make objections. The F.R.E. can provide some guidance in immigration court practice, although immigration proceedings are not bound by the strict rules of evidence. 6 The relevant F.R.E. citation for each objection has been included. Objections to questions must first be made at the trial court level, because if the objection is not made there, an argument based on that objection cannot be asserted on appeal. 7 In immigration court, as in other courts, evidentiary objections must be made in a timely fashion, and the grounds must, therefore, be identified with particularity. 8

The purpose of this article is to discuss verbal objections in immigration court removal/deportation proceedings. It is notan exhaustive and limiting list. It is merely a discussion of the main fourteen objections out of many potential objections that generally make the most sense in immigration court proceedings. This article does not include any objections based upon the potential mental capacity of a witness. The EOIR has extensive criteria for dealing with witnesses that exhibit such issues and that is well beyond the scope of this discussion. 9 Further, unlike many articles providing a “hip pocket” guide to objections at a trial court level, this article does not examine hearsay objections since hearsay is allowed in immigration court unless its use is fundamentally unfair. 10 The general rule with respect to evidence in immigration proceedings is that admissibility is favored, as long as the evidence is shown to be probative of relevant matters and its use is fundamentally fair so as not to deprive the alien of due process of law. 11

Since I was inspired to write this guide by the line from Shakespeare’s Hamlet where Queen Gertrude comments that a character in a play protests too much, I discuss each of the fourteen objections as though they were part of Shakespeare’s next best known medium, the fourteen line sonnet. 12 A Shakespearean sonnet has three four-line quatrains and then a two line “volta,” or twist, at the end. I have divided up three general groups of objections and saved the best two for the end.

II. The First Quatrain — Questions that Elicit an Organic Response

Argumentative

DISCUSSION: This is not an objection to opposing counsel making a good point. It should be used when the questioning attorney is not asking a question and is instead making an argument of law or application of law that should be argued in summation. It is only valid when the witness is not being asked a question that he or she can properly answer.

F.R.E. Reference: Argumentative (611(a))

RESPONSE: “Your Honor, I am testing the testimony of this witness.” 13

Form

DISCUSSION: An objection that the “form” is improper is a generalization; it is a sort of “catch-all” when the sense is that there is something wrong with a question. The objection is generally dealt with by a direction to counsel to rephrase. The best objections to “form” should state the specific issue.

RESPONSE: “Your Honor, may counsel be requested to inform the court in what specific way is the form of my question insufficient, so that I can remedy any problem?” (Then, when informed, restate the question to eliminate the bad form.)

Compound Question/Double Question

DISCUSSION: The question is really two questions posed as one. This objection should only be used when the question is misleading and the answer could be misconstrued by the jury.

F.R.E. Reference: Compound (611(a))

RESPONSE: Separate the question into the two parts.

Confusing/Vague/Ambiguous

DISCUSSION: Confusing/vague/misleading/ambiguous are all words that convey the objection that the question is not posed in a clear and precise manner so that the witness knows with certainty what information is being sought.

RESPONSE: “Your Honor, I can restate that question.”

Counsel is Testifying/Misstates Evidence/Misquotes Witness/Improper Characterization of Evidence

DISCUSSION: Basically, in immigration court, this is when a lawyer is leading his or her own witness on direct or deliberately misstating facts on cross. The immigration judge has inherent power to administer the trial so that it is fair. The value of making this objection is to both wake up the witness to pay attention and not mindlessly answer the question, and also to call the attention of the immigration judge to the fact that the earlier testimony was different.

RESPONSE: “Your Honor, it is not a misstatement, and certainly the court and jury have heard the evidence.” If the issue is counsel testifying, then, depending on the type of question, the best response is to revert back to non-leading who, what, where, when, how and why questions.

Narrative

DISCUSSION: This type of objection in immigration court is really only useful with expert witnesses. The point being that the immigration judge wants to hear from the respondent in a general narrative form, since so much of the respondent’s case will depend upon whether the immigration judge finds him or her credible. However, objecting to a long narrative by an expert witness has the advantage of preventing an expert witness or other verbally gifted witness from captivating the attention of the immigration judge.

RESPONSE: “Your Honor, this simply asks for a short description of the expert’s methodology.”

III. The Second Quatrain — Questions Based on What Has Happened in Court

Assumes Facts Not in Evidence

DISCUSSION: Facts which are not in evidence cannot be used as the basis of a question, unless the immigration judge allows the question “subject to later connecting up.” Generally, in the interest of good administration and usage of time, the immigration judge may allow the missing facts to be brought in later.

RESPONSE: “Your Honor, we will have those facts later in the case, but this witness is here now and it is the best use of time to ask that question now.”

Beyond The Scope of Direct/Cross/Redirect Examination

DISCUSSION: The testimony sought was not covered by the opposing counsel while questioning the witness and is not relevant to any of the previous issues covered. In the testimony of an expert, the scope of what is within the direct examination is not limited to the exact items the expert talked about. Because the expert is an expert in an entire field and is there to explain items in the field of endeavor, the scope of direct is usually understood to be everything in the expert’s field of knowledge that bears on the case in issue.

F.R.E. Reference: Beyond Scope (of Direct, Cross) (1002).

RESPONSE: “Your Honor, this is within the scope of the direct examination (cross-examination) because [explain].”

Speculative

DISCUSSION: The witness does not have first-hand knowledge of the fact about which he or she is testifying. Greater freedom is allowed with expert witnesses, but still the expert is limited by Rule 702 strictures. Expert witnesses are allowed in immigration court proceedings. 14

F.R.E. Reference: Speculation (602; 701)

RESPONSE: “Your Honor, this is an expert giving an expert opinion within the scope of her expertise.”

Foundation/Lack of Personal Knowledge

DISCUSSION: The predicate evidence has not been entered that would make this evidence admissible. This is a good objection to make when the evidence about to come in is objectionable in some way. The objecting attorney must identify what is necessary to correct the lack of foundation for the deponent to answer. 15 If the witness is a layperson, the usual foundation objection is a lack of showing that the witness has personal knowledge of the facts which the question seeks. If the witness is an expert, the usual foundation objection is a lack of showing that the expert is qualified to give the opinion sought. A (non-expert) witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but not must, consist of the testimony of the witness. With some qualifications, experts can testify to facts they used in their process of building an opinion, even if they do not have personal knowledge of the facts supporting the opinion.

F.R.E. Reference: Rule 602, 703; Lack of Foundation (602; 901(a))

RESPONSE: [Establish by preliminary questions that the person has actual personal knowledge.]

IV. The Third Quatrain — Imagery: Questions Based On Rules

Best Evidence Rule

“OBJECTION: Your Honor, this is not the best evidence. The original document is the best evidence.”

DISCUSSION: This objection can be used when the evidence being solicited is not the best source of the information. 16 It usually occurs when a witness is being asked a question about a document that is available to be entered into evidence. The document should be entered as proof of its contents. There are three aspects to the “Best Evidence Rule.” The first aspect is the one most often invoked: ordinarily a non-expert witness is not allowed to describe what is in a document without the document itself being introduced into evidence. Put the document into evidence first, and then have the lay witness talk about what is in it. The second aspect is requiring the original document to be introduced into evidence instead of a copy — if the original is available. Requiring the original document (the best evidence) to be available for examination insures that nothing has been altered in any way. The original document is not always available, especially in cases where a respondent may be fleeing persecution/prosecution. The third aspect is a summary of voluminous documents. The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

F.R.E. Reference: Rules 1002, 1003, 1006.

RESPONSE: Dependent on the aspect of the Best Evidence rule involved in the objection: [Offer the document into evidence] [“Your Honor, this is admissible as a copy under Evidence Rule 1003”] [“Your Honor, this is a summary admissible under Evidence Rule 1006”].

Opinion

DISCUSSION: An improper lay (non-expert) opinion is when a witness is giving testimony that does not require an expertise, but is still an opinion that does not assist the jury in its understanding of the case. In regard to an expert, this objection is made to the competence of the expert due to the inability of the expert to pass the voir dire requirements for experts. If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized expert knowledge.

F.R.E. Reference: Rule 701, 702.

RESPONSE to Objection Regarding Expert: “Your Honor, the witness is an expert and entitled to draw a conclusion.”

Privileged Communication

DISCUSSION: A privilege is a right of an individual not to testify.

Some general privileges are:

Attorney-Client 17

Attorney Work Product

Husband-Wife 18

Mental Health Records 19

Physician-Patient

Psychotherapist-Patient

RESPONSE: “Your Honor, the matter is not privileged because….”

Public Policy

DISCUSSION: The objection regarding public policy does not consist of an optional right of an individual not to testify. The objection based on public policy refers to a non-optional class of evidence that cannot be introduced, no matter that the person who holds the evidence wants to testify. Subjects forbidden by state and federal law are wide:

Medical Expense Payments. Evidence of the payment of medical expenses to show liability for negligence leading to the medical expenses is inadmissible.

Medical Review Records. Most states forbid discoverability or admissibility of the records of a medical review committee of a hospital. It is a legislative policy decision to promote the ability of a hospital to discover medical malpractice above that of the injured person to discover the malpractice.

Parole Evidence Rule. The “parole evidence rule” has long been a rule of law in the English speaking world. In the absence of fraud or mutual mistake, oral statements are not admissible to modify, vary, or contradict the plain terms of a valid written contract between two parties.

Witness is Attorney. Ethical rules prohibit a lawyer from serving simultaneously as a witness and an advocate. Generally, a party’s lawyer who attempts to testify is subject to having to choose between being a witness or continuing as a lawyer in a case.

F.R.E. Reference: 409

RESPONSE: [Depends on the statute or rule involved.]

V. The Couplet — The Volta: The Takeaway, Most Important Objections

Leading on Direct Examination

DISCUSSION: The question on direct suggests an answer. This is (1) not an objection on cross, and (2) actually allowed in some circumstances. The important factor is not whether the question is leading, irrelevant, or without foundation, but rather whether the answer would assist the immigration judge in formulating his or her opinion. The special inquiry officer should weigh this objective along with his obligation to keep the record within bounds when ruling upon objections made by either counsel for the alien or the trial attorney. 20 The problem with a leading question is that the question itself suggests the answer that the examiner wants to have. A leading question often, but not always, can be answered with a “yes.” To encourage witnesses telling facts in their own way, leading questions are not allowed on direct examination when an attorney is examining his/her own friendly or neutral witness. When an attorney has called a hostile witness (which may be someone other than the adverse party), leading questions are allowed in direct examination. Leading questions are always proper in cross-examinations.

F.R.E. Reference: Leading (611(c))

RESPONSE: “Your Honor, this question is only preliminary to move us quickly to the matters in issue.” OR “Your Honor, the witness is a hostile witness.” Depending on the type of question, the best response is often to revert back to non-leading who, what, where, when, how and why questions. 21

Rule 403 (Undue Waste of Time or Undue Prejudice/Immaterial/Irrelevant/Repetitive/Asked and Answered/Cumulative/Surprise)

DISCUSSION: The argument is that the evidence being introduced is highly prejudicial to your client and this prejudice far outweighs the probative value. An objectionable piece of evidence is one that not only hurts your case but is also not sufficiently relevant to the merits of your opponent’s case to be let in.

In immigration court, all relevant evidence should be admitted. 22 Determining “probative value” or “weight” is at the discretion of the immigration judge. 23 The amount of “unfair prejudicial effect” also is determined by the judge. The word “unfair” is the key. In determining whether to exclude evidence, immigration judges should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.

F.R.E. Reference: More Prejudicial Than Probative (401–403); Non-responsive (611a).

RESPONSE: “Your Honor, the exclusion of relevant evidence for unfairness is an extraordinary remedy. There is nothing unfair about this evidence.”

Do not be afraid to object in immigration court. The Federal Rules of Evidence are not strictly followed; however, evidence must be relevant and fundamentally fair. If the evidence is not, no protest is too much.

Footnotes

1 William Shakespeare, Gertrude to Hamlet, “The lady doth protest too much, methinks.”

2 Dorothy A. Harbeck is the Eastern Regional Vice President of the National Association of Immigration Judges (NAIJ). The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of the NAIJ. This article is solely for educational purposes, and it does not serve to substitute for any expert, professional and/or legal representation and advice. Judge Harbeck is also an adjunct Professor of Law at Seton Hall University School of Law in trial skills.

7 See Matter of Edwards, 20 I. & N. Dec. 191, 196–197 n.4 (BIA 1990) (objections not lodged before the immigration judge are not appropriately raised first on appeal).

8 Thus, a party who fails to raise a timely and specific objection to the admission of evidence generally does not preserve such an objection as a ground for appeal. Matter of Lemhammad, 20 I. & N. Dec. 316, 325 (BIA 1991); see also Fed. Rule of Evidence 103(a)(1). See United States v. Adamson, 665 F. 2d 649, 660 (5th Cir. 1982); United States v. Arteaga-Limones, 529 F. 2d 1183, 1198 (5th Cir. 1976). See also 8 C.F.R. § 1240.10(a)(4) (the immigration judge shall “advise the respondent that he or she will have a reasonable opportunity to examine and object to the evidence against him or her.”).

13 The concept of suggesting a lawyer’s response to a judge after the judge has ruled on the objection was suggested to this author by the work of Leonard Bucklin from his Building Trial Notebooks series (James Publishing). Mr. Bucklin is a Felllow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S. He served as a Director of the Academy from 1990 to 1996. He is also a member of the Million-Dollar Advocate’s Forum, which is limited to plaintiffs’ attorneys who have won million or multi-million dollar verdicts, awards, and settlements. On the other side of the table, Mr. Bucklin has been placed in Best’s Directory of Recommended Insurance Attorneys as a result of superior defense work and reasonable fees for over 35 insurers. His training materials have been used by the New Jersey Institute of Continuing Legal Education in basic skills classes.

14 Matter of D-R-, 25 I. & N. Dec. 445 (BIA 2011). An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that will assist the immigration judge to understand the evidence or to determine a fact in issue. The “spirit of Daubert” is applicable in immigration court. See Pasha v. Gonzales, 433 F. 3d 530 (7th Cir. 2005) (discussing the rubric of expert testimony and referencing the seminal expert report case under the Federal Rules of Evidence, Daubert v. Merrill Pharmaceuticals, 509 U.S. 579 (1993)). The immigration judge has the discretion to exclude expert testimony. Matter of V-K-, 24 I. & N. Dec. 500, fn. 2 (BIA 2008); Akinfolarin v. Gonzales, 423 F. 3d 39, 43 (1st Cir. 2005).

16 In the Matter of M-, 5 I. & N. Dec. 484 (BIA 1953) (failure to produce reports of Communist Party activity made by the Government witness to the police department is not a violation of the best evidence rule where the sole issue is whether the respondent was a Communist Party member. Such reports did not create Communist Party membership but reflected the witness’s report of such membership; they were not used by the witness or the Government in the hearing; and there was no showing that they were relevant for the purpose of impeachment).

17 See generally Immigration Court Practice Manual, Chapter 2, Sec. 2.3(d); Matter of Velazquez, 19 I. & N. Dec. 384(BIA 1986); Matter of Athanasopoulos, 13 I. & N. Dec. 827 (BIA 1971) (finding that attorney-client privilege was lost when the representative was in pursuit of a fraudulent claim); see also Ann Naffier, Attorney-Client Privilege for Non-Lawyers? A Study of Board of Immigration Appeals-Accredited Representatives, Prilege, and Confidentially, 59 Drake L. Rev. 584(2011).

18 Matter of Gonzalez, 16 I. & N. Dec. 44 (BIA 1976); Matter of B-, 5 I. & N. Dec. 738 (BIA 1954).

19 Matter of B-, 5 I. & N. Dec. 738 (BIA 1954). (The testimony of a physician of the United States Public Health Service in a deportation hearing is competent and not privileged since he is performing a duty provided by applicable law and regulations and the ordinary relationship of physician and patient does not exist).

21 Dorothy Harbeck, The Commonsense of Direct and Cross Examinations in Immigration Court, 304 New Jersey Law. Mag. (2017) (NAIJ capacity); Dorothy Harbeck, Terms so Plain and Firm as to Command Assent: Preparing and Conducting Optimal Direct Examination of the Respondent, Fed. Law. 13 (Jan./Feb. 2017) (primary author, NAIJ capacity).

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Thanks for sharing, Judge Harbeck. “Good stuff” as usual! And, for those of you taking “Immigration Law & Policy” with me at Georgetown Law this summer, Judge Harbeck will be a “guest lecturer” at our June 14 class (along with Jones Day’s Worldwide Pro Bono Director Laura Tuell).

PWS

05-29-18

TAL & FRIENDS REPORT @ CNN: DACA TALKS HUNG UP ON CITIZENSHIP – TRUMP’S LATEST SCOFFLAW IMMIGRATION IDEA: Deal With Self-Created Bogus “Crisis” By Ignoring Statute, Treaties, & U.S. Constitution!

Citizenship a key sticking point on immigration as 2 more Republicans sign petition to force votes

By Lauren Fox and Tal Kopan, CNN

Talks between Republicans across the political spectrum trying to find middle ground on a potential immigration deal that would unite the conference have reached a crossroads — and one again it has to do with citizenship.

At the moment leaders are trying to find a sweet spot between moderates and conservatives in the conference on what would be a permanent solution for recipients of the Deferred Action for Childhood Arrivals program, which President Donald Trump has ended but whose ultimate fate has been tied up in the court system. Conservatives have long argued that they are opposed to any kind of “special path” to citizenship for DACA recipients with some opposed to any path to citizenship at all. Meanwhile, moderates — who are just a handful of signatures from forcing a wide-ranging immigration debate next month — are pushing to ensure that DACA recipients can have a path to citizenship eventually.

On Thursday, two more moderate Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Tom Reed of New York, became the 22nd and 23rd GOP signature on the petition to force a vote on a series of immigration bills next month. If Republicans get at least 26 signatures, combined with 192 of 193 Democratic signature, the petition would force the votes. Only one Democratic House member has said so far that he will not sign the petition.

According to sources familiar with the negotiations, during a meeting with leaders Wednesday, GOP leaders were still trying to gauge whether the House Freedom Caucus would support a plan that would offer a bridge for DACA recipients to apply for green cards. Then, once a DACA recipient had a green card they could eventually apply for citizenship like other immigrants.

Talks are unlikely to move forward substantially before that issue is resolved, and it is unlikely that a decision will come before lawmakers return from their Memorial Day break, which started Thursday.

More: http://www.cnn.com/2018/05/24/politics/discharge-petition-immigration-daca-congress/index.html

Trump calls for sweeping changes to US immigration legal process

By: Allie Malloy and Tal Kopan, CNN

President Donald Trump suggested in an interview that sweeping changes to what he described as a “corrupt” immigration legal system were necessary, while also questioning the need for a legal process for people apprehended trying to cross into the US illegally.

“How do you hire thousands of people to be a judge? So it’s ridiculous, we’re going to change the system. We have no choice for the good of our country,” Trump said in an interview that aired Thursday on Fox News.

“Other countries have what’s called security people. People who stand there and say you can’t come in. We have thousands of judges and they need thousands of more judges. The whole system is corrupt. It’s horrible,” Trump told “Fox & Friends” co-host Brian Kilmeade. He didn’t explain what he meant by “corrupt” and Kilmeade didn’t press him about the comment.

Trump also questioned the process of immigrants going through the court system at all.

“Whoever heard of a system where you put people through trials? Where do these judges come from?” he said.

The suggestion of eliminating the courts and judges, however, is contrary to the policies currently being carried out by his own administration, and would likely violate the Constitution and international law in addition to federal law. The Justice Department declined to comment on the remarks.

Asked by a reporter about Trump’s comments, California Rep. Zoe Lofgren, a former immigration attorney who is now the top Democrat on the main immigration law subcommittee in the House, said they run counter to US values and law.

“I guess he has no belief in due process and the Constitution,” Lofgren said.

Comments run counter to Justice policies

At odds with Trump’s comments is his own Attorney General Jeff Sessions, who has made overhauling the immigration courts a top priority, including in the support of hiring more immigration judges. The Justice Department has touted Sessions’ efforts as essential to combating illegal immigration and making the system stronger.

More: http://www.cnn.com/2018/05/24/politics/donald-trump-immigration-courts/index.html

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To state the obvious, there is no “immigration crisis” in America today other than that created or aggravated by Trump and his toxic scofflaw policies! On the other hand, Trump is a Constitutional crisis unfolding in real time!

PWS

05-24-18

TRUMP’S COWARDLY ATTACK ON CHILDREN – More Lies, Distortions, Smears, & Racism Mark Administration Officials’ Bogus Attempts To Link Refugee Children & Their Legal Rights With Gangs!

https://www.washingtonpost.com/politics/trump-warns-against-admitting-unaccompanied-migrant-children-theyre-not-innocent/2018/05/23/e4b24a68-5ec2-11e8-8c93-8cf33c21da8d_story.html

Seung Min Kim reports for the Washington Post:

. . . .

The issue is compounded, Rosenstein said, by the fact that these migrant children must eventually be released from detention, and many never show up for their immigration proceedings before a judge. Rosenstein, quoting statistics from the Department of Homeland Security, said less than 4 percent of unaccompanied minors are ultimately removed from the United States.

“We’re letting people in who are creating problems. We’re letting people in who are gang members. We’re also letting people in who are vulnerable,” Rosenstein said. Because many of the migrant children lack families or a similar support system, they become “vulnerable to [gang] recruitment,” the deputy attorney general said,

Thomas Homan, the departing deputy director of Immigration and Customs Enforcement, said about 300 arrests related to the MS-13 gang were made on Long Island last year. Of those arrested, more than 40 percent entered the United States as unaccompanied minors, he said.

=

“So it is a problem,” Homan said. “There is a connection.”

Other federal statistics paint a somewhat different tale. From October 2011 until June of last year, U.S. Customs and Border Protection officials arrested about 5,000 individuals with confirmed or suspected gang ties, according to congressional testimony from the agency’s acting chief, Carla Provost, in June.

Of the 5,000 figure, 159 were unaccompanied minors, Provost testified, and 56 were suspected or confirmed to have ties with MS-13. In that overall time frame, CBP apprehended about 250,000 unaccompanied minors, according to Provost.

. . . .

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Read the full article at the link.

The Trump claims are, as usual, totally bogus. The percentage of gang members who come in as “unaccompanied minors” is infinitesimally small. The vast majority of these kids are gang victims entitled to asylum or relief under the Convention Against Torture if the law were fairly applied (which it isn’t).

Contrary to the suggestion by Rosenstein, when given access to legal representation, approximately 95% of the unaccompanied children show up for their hearings. And the “vulnerability” mentioned by Rosenstein is largely the result of the Trump Administration’s “reign of terror” against migrant communities which has made nearly all migrant children, along with other community members, “easy pickings” for gangs, with no realistic recourse to law enforcement. There are actually strategies for combatting gangs. But the Trumpsters have no interest in them.

Indeed, gangs have recognized that folks like Trump, Sessions, Homan, Neilsen, and now Rosenstein are their best recruiters and enablers. How dumb can we be as a country to put these biased, spineless, and clueless dudes in charge of “law enforcement.”

Interesting that in an obvious attempt to kiss up to Trump, Sessions, & Co and save his job, Rosenstein pathetically has decided that being a sycophant and sucking up to the bosses is his best defense. Particularly when it’s at the expense of kids and other vulnerable migrants seeking protection. Pretty disgusting! And, I doubt that it will eventually save him from Trump. Just tank his reputation and his future like others who have been “slimed for life” by their association with Trump.

Join the New Due Process Army and stand up for kids against the “child abuse” being practiced by the Trump Administration and its corrupt and incompetent officials.

PWS

05-24-18

GUATEMALAN MOM WAS NEARLY KILLED BY HER HUSBAND BECAUSE OF HER GENDER —THE U.S. GRANTED HER REFUGE UNDER THE REFUGEE ACT OF 1980 — NOW A.G. JEFF SESSIONS APPEARS TO BE READY TO REWRITE WELL-ESTABLISHED LAW TO SENTENCE WOMEN LIKE HER TO DEATH OR A LIFETIME OF ABUSE!

https://www.nytimes.com/2018/05/17/opinion/jeff-sessions-asylum-domestic-violence.html

Jane Fonda and Professor Karen Musalo of UC Hastings write in the NY Times:

By Jane Fonda and Karen Musalo

Ms. Fonda is an actor and activist. Ms. Musalo directs the Center for Gender and Refugee Studies at UC Hastings College of the Law and represents A-B- in her asylum case.

May 17, 2018

Image
CreditMarta Monteiro

In recent years, the United States has been something of a beacon of hope for women fleeing violence and persecution in their home countries. In 2014, in a giant step forward, immigration courts explicitly determined that a person fleeing severe domestic violence may be granted asylum here if the violence rises to the level of persecution, if the government in the victim’s home country cannot or will not punish her abuser and if various other criteria are met. It’s a high bar but one that, sadly, women from many countries can clear. Now their last chance at protection may be under threat.

The case that established that certain victims of domestic violence are eligible for asylum was decided in a landmark ruling by the Board of Immigration Appeals, the highest court in our immigration judicial system.

The survivor in the case, a Guatemalan named Aminta Cifuentes, was a victim of severe physical and sexual abuse. Ms. Cifuentes had endured 10 years of unrelenting violence at the hands of her spouse, who burned her with acid, beat and kicked her, broke her nose and punched her in the stomach with such force when she was eight months pregnant that the baby was born prematurely and with bruises. Her husband told her it would be pointless to call the police, because “even the police and judges beat their wives.”

The ruling that granted her protection was a transformative one, not just for Ms. Cifuentes but for our country, too. At last, the United States stood firmly in opposition to violence against women and recognized that we can and should offer hope to survivors.

In March, however, Attorney General Jeff Sessions, in an unusual move, suddenly and inexplicably stepped into this seemingly settled matter to assign a similar petition for asylum, known as the Matter of A-B–, to himself for reconsideration.

The facts in the Matter of A-B- are similar to those in the 2014 case. Ms. A-B-, a Salvadoran, was brutalized by her husband for 15 years. He beat and kicked her, including while she was pregnant; bashed her head against a wall; threatened her with death while holding a knife to her throat and while brandishing a gun; and threatened to hang her. Ms. A-B- attempted to secure state protection to no avail.

When she went to the police after her husband attacked her with a knife, their response was that if she had any “dignity,” she would leave him. When Ms. A-B- did attempt to leave her husband, he tracked her down, raped her and threatened to kill her. When she finally got a divorce, her ex-husband told her that if she thought the divorce freed her from him, she was wrong. She fled the country after he told her that he and his friends were going to kill her and dump her body in a river.

When Ms. A-B- came to the United States seeking asylum, her case was heard by an immigration judge in Charlotte, N.C., named V. Stuart Couch, who is notorious for his high denial rate. Judge Couch denied her asylum; Ms. A-B- appealed, and the decision was overruled by the Board of Immigration Appeals, the same board that had ruled favorably in the 2014 case.

The board sent the case back to Judge Couch for security checks to be completed and asylum to be granted. Without any explanation, Judge Couch held on to the case and refused to grant asylum as directed. And then, deviating from normal procedures, Mr. Sessions took jurisdiction.

The attorney general does have the power to reconsider any decision by the Board of Immigration Appeals. However, the procedural irregularities, paired with the possibility that Mr. Sessions may be using his authority to upend the precedent set in the Cifuentes case, are troubling. Mr. Sessions has given himself the power not only to decide Ms. A-B-’s fate but also ultimately to try to rule on how our country handles claims for all survivors of domestic violence looking for asylum.

To be clear, we do not yet know what Mr. Sessions will decide. But in the context of the Trump administration’s antipathy toward asylum seekers, and Mr. Sessions’s statements and actions with regard to immigrant women, his decision to assign himself jurisdiction does not bode well. Asylum seekers who have arrived at the American border seeking protection have been vilified by this administration.

The government has targeted women in ways that would have been unthinkable under prior administrations, including separating mothers who arrive at the border from their children and detaining pregnant women. Mr. Sessions himself has expressed his deep skepticism about asylum claims based on gender-related persecution.

At a time when violence against women and girls is a global crisis, a decision to deny protection to women who flee gender violence, including domestic violence, would be a grave mistake. This is a moment of truth of our country. Will we remain a beacon of hope for women worldwide whose lives are on the line because of domestic violence, and whose governments cannot or will not protect them? The answer, it seems, is in the attorney general’s hands.

Jane Fonda, an actor and activist, is a co-founder of the Women’s Media Center and on the board of Sisterhood Is Global. Karen Musalo directs the Center for Gender and Refugee Studies at the University of California Hastings School of Law and represents A-B- in her asylum case.

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Matter of A-B-, was a straight-forward application by the BIA of its existing precedents on asylum for victims of domestic violence.
The Immigration Judge who wrongfully denied the original asylum application appeared to disregard the BIA’s mandate to check fingerprints and grant on remand, and instead delayed the case without any apparent valid reason for doing so.
Sessions “certified” this case to himself either though neither party had requested his intervention and, remarkably, the DHS requested that the certification be dissolved to allow the BIA to resolve any issues under its existing framework of asylum precedents.
Sessions has made a number of inflammatory, anti-asylum statements including several made in a speech to EOIR adjudicators.
Is this “Justice In America?” Or, is it a “Parody of Justice In America” taking place in a “captive court system” dedicated to one-sided enforcement rather than fairness and Due Process.
Join the “New Due Process Army” and fight against Sessions’s perversion of the U.S. Immigration Court system to fit his “enforcement only” viewpoint.

PWS

05-19-18

SOPHIA GENOVESE: “INJUSTICE AT JUSTICE” – The Immigration Court system should not be used as a political tool of the executive branch to effectuate anti-immigrant policies. Rather, it should be an independent system that is committed to the fair adjudication and implementation of our immigration laws.”

http://blog.cyrusmehta.com/2018/05/assembly-line-injustice-how-the-implementation-of-immigration-case-completion-quotas-will-eviscerate-due-process.html

Assembly Line Injustice: How the Implementation of Immigration Case Completion Quotas will Eviscerate Due Process

May 7, 2018/0 Comments/in Blog /by Sophia Genovese

The Executive Office for Immigration Review, under the direction of the Department of Justice, announced last year that it had reopened the Collective Bargaining Agreement with the National Association of Immigration Judges (NAIJ) to include case completion quotas in the performance evaluations of Immigration Judges. On March 30, 2018, James McHenry, the Director of the EOIR, formally announced these metrics, which require IJs to complete at least 700 cases per year, have a remand rate of less than fifteen percent, and meet half of the additional benchmarks listed in the evaluation plan, which can be found here. As pointed out by the Association of the Bar of the City of New York, “this quota translates into each judge hearing testimony and rendering decisions almost three cases per day, five days per week, 52 weeks per year.” According to several retired IJs and Former Board of Immigration Appeals (BIA) Members, such quotas raise serious due process concerns and will result in a system that is less focused on justice and appearing “more like an assembly line.”

There are a number of issues with the EOIR case completion quotas. First, these quotas may force IJs to breach their ethical obligations. Specifically, the new completion quotas are tied to the financial incentives of IJs, where the performance evaluations affect IJs’ job security and eligibility for raises. IJs are not given life appointments and can be easily removed from the bench by the Attorney General if he finds them to not be meeting these performance thresholds. Thus, IJs may be encouraged to render hasty decisions in order to satisfy these case completion quotas and receive a good review (and thus a raise) instead of making decisions based on what is proper for the cases in front of them. Having such a financial incentive in the completion of a case arguably forces an IJ to violate 5 C.F.R. §§ 2635.401 to 2635.403,[i] which prohibits IJs from participating in proceedings where he or she has a financial interest. Additionally, IJs must be impartial in their decision-making under 5 C.F.R. § 2635.101(b)(8). It is hard for an IJ to remain impartial when pressured with impossible case completion standards especially when a case is meritorious but an IJ may not grant a continuance for legitimate reasons.

The case completion quotas also violate 8 C.F.R. § 1003.10(b), which provides: “In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgement and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” For example, an attorney may have been only recently retained by an asylum-seeker, and may request a continuance in order to gather and assemble evidence that is vital for the asylum-seeker’s claim. Under ordinary circumstances, an IJ would likely grant such a continuance as it would be considered proper under INA § 240(b)(4)(B) which affords a “reasonable opportunity…to present evidence” on one’s behalf. However, under the quota system, an IJ may feel pressure to deny the motion for continuance and may ultimately deny the asylum claim because the asylum-seeker was not afforded sufficient time to present their case. Such an outcome clearly violates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B) where the IJ is stripped of their independent decision-making authority where they feel pressured to quickly close out a case despite compelling reasons to grant a continuance, and where the asylum-seeker is not afforded a reasonable opportunity to be heard.

Another example is an individual placed in removal proceedings who is the intending beneficiary of a pending I-130 with USCIS. Typically, USCIS takes several months to adjudicate an I-130, and thus, attorneys for respondents file motions for continuance with the IJ until the USCIS has rendered a decision which will determine the respondent’s eligibility for relief from removal. Under the new case quota system, IJs will be less inclined to grant such continuances. This hypothetical similarly implicates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B), as described above. Moreover, the IJ’s denial of the continuance here would violate Matter of Hashmi, 24 I&N Dec. 785, 793-94 (BIA 2009) where the Board held that compliance with a IJ’s case completion goals “is not a proper factor in deciding a continuance request” where there is an meritorious pending I-130. We’ve previously blogged about AG Sessions’ stripping of judicial independence through his self-referral of Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018), which can be found here.

The case completion quotas will also lead to an unprecedented number of BIA and federal court appeals. This would needlessly increase the BIA’s backlog and indeed affect the dockets of the federal court systems, resulting in the tremendous waste of taxpayer’s dollars where a proper decision could have been rendered at the IJ level. In addition, the number of remanded cases may exceed fifteen percent, and thus, the IJ would again fail to meet the performance metrics in their performance evaluation.

There is no denying that the Immigration Courts face tremendous pressure to address the ballooning backlog of cases. As of this writing, there are 692,298 pending cases in Immigration Courts across the country, with only approximately 330 judges to hear them. Advocates during the Obama-era consistently advocated for the appointment of more IJs to address the backlog. However, in the Trump-era, advocate are now skeptical of such a move where it is clear that this Administration seeks to deport as many people as possible. Indeed, the Department of Justice, headed by Jeff Sessions, has celebrated deportations under the Trump Administration. Such an emphasis on deportation, as opposed to fair adjudication of claims, undermines the independence and impartiality of IJs. The implementation of the DOJ/EOIR case completion quotas will undoubtedly lead to a rise in unfair hearings and erroneous deportations, which is exactly what this Administration wants. The appointment of Trump-supporting IJs will only exacerbate the problem.

For many years, the NAIJ has advocated for the creation of an Article I Immigration Court that is independent of the political whims of the Department of Justice. Under the current Administration, and in light of the newly imposed DOJ/EOIR performance quota metrics, these calls have never been more relevant. The Immigration Court system should not be used as a political tool of the executive branch to effectuate anti-immigrant policies. Rather, it should be an independent system that is committed to the fair adjudication and implementation of our immigration laws. The case completion quotas will undoubtedly undermine the integrity of our immigration system and should be vigorously challenged by IJs and practitioners.

[i] The author acknowledges that 5 CFR § 2635.402 directly implicates 18 U.S.C. 208(a), a criminal statute. This author suggests that the EOIR case completion quotas may jeopardize an IJ’s ethical obligations where their financial interests are directly and predictably impacted by blind adherence to such arbitrary quotas. Criminal liability for these actions, however, goes beyond the scope of this article.

Tags: 5 C.F.R. § 2635.402, 8 C.F.R. § 1003.10(b), Case completion quotas, Immigration court backlog, INA § 240(b)(4)(B), James McHenry, Matter of Hashmi, Motion for continuance

GONZO’S WORLD: SESSIONS GREETS MELANIA’S “BE NICE TO KIDS” INITIATIVE WITH ATTACK ON MIGRANT CHILDREN AND THEIR FAMILIES – Also Plans “Aimless Docket Reshuffling” Initiative To Fill U.S. District Courts With Minor, Non–Violent Misdemeanants Diverting Resources From More Serious Criminals

https://www.huffingtonpost.com/entry/trump-dhs-doj-immigration-families_us_5af0bd5ee4b0ab5c3d68ae96

Roque Planas & Elise Foley report for HuffPost:

In a sweeping enforcement change, Donald Trump’s administration will increasingly prosecute members of immigrant families who cross the border illegally, even if that means splitting children from their parents and regardless of whether they’re seeking safety in the U.S., Attorney General Jeff Sessions said Monday.

It’s already happening. On April 27, Border Patrol officers picked up a 30-year-old Salvadoran woman, Morena Mendoza Romaldo, with one of her children after she crossed into the U.S. near San Diego. She fled El Salvador because of sexual violence, according to court filings. She clearly told Border Patrol that she was afraid to return there; an arrest narrative filed in court has “credible fear claim” written on it.

Crossing the border illegally is a misdemeanor punishable by up to six months in jail. But previously the Justice Department rarely targeted family units — as the Border Patrol describes parents who cross with their children — for prosecution. Instead, authorities typically routed migrant families to immigration courts, and they were often released from detention after three weeks because of a court order limiting how long undocumented children may remain locked up. People with credible fear of being returned to their native countries were likewise often sent to immigration court instead of being criminally prosecuted.

But now, with the Trump administration looking for ways to crack down on policies its officials deride as “catch and release,” the response has gotten harsher.

Mendoza’s case was one of 11 immigration prosecutions filed against alleged members of a caravan of asylum-seeking Central Americans. At least two others were also separated from their children after facing prosecution for illegal entry.

Sessions and Immigration and Customs Enforcement’s acting Director Thomas Homan said during a press conference in San Diego that the Department of Homeland Security would refer for prosecution all cases of people crossing illegally, as part of a zero-tolerance policy — regardless of whether they’re fleeing persecution or traveling with children.

“People are not going to caravan or otherwise stampede our border,” Sessions insisted. He later said, “We don’t want to separate families, but we don’t want families to come to the border illegally.”

It will be up to individual U.S. attorneys to decide how many of the migrants will face criminal charges. In the past, limits on the number of government attorneys or courtroom capacity led authorities to instead route most people caught at the border through the traditional deportation process without convicting them of a crime first. Last week Sessions announced that the Justice Department hired 35 more assistant U.S. attorneys to help prosecute immigration crimes in the five federal districts that touch the U.S.-Mexico border. Immigration prosecutions have taken up roughly half the federal criminal docket since 2008, after policy changes pioneered by George W. Bush, institutionalized under Barack Obama and now enthusiastically embraced by Trump.

The zero-tolerance policy won’t apply to those who seek asylum at ports of entry, which is not illegal, although the Trump administration has publicly urged migrants to stay in Mexico instead. At least two of the 11 alleged caravan members facing prosecution for illegal entry — Olga Esmeralda George and Marbel Yaneth Ramirez-Raudales — said they tried to initiate asylum claims at a nearby port of entry but were turned away, according to court filings.

Sessions’ plans are already facing opposition from the San Diego Federal Public Defenders’ Office. Illegal entry prosecutions are often open and shut cases. But attorney Eric Fish has asked the court to dismiss three of the 11 alleged caravan members’ cases, arguing that his clients, including Mendoza, were targeted for political reasons that amount to unconstitutional discrimination.

If other countries treated people seeking refugee protection in this way, the United States would be appalled.Eleanor Acer, refugee protection program director, Human Rights First

In court filings littered with Trump’s tweets excoriating the caravan, Fish contended that Border Patrol agents arrested the three defendants at the same time as a group of Indian nationals. But the Indians were never prosecuted.

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“The government cannot choose its defendants based on their alleged country of citizenship, but that’s exactly what it did here,” he wrote in a court filing. “The Court should not stand for such invidious discrimination, and should dismiss the complaint.”

Fish is also disputing the $10,000 bonds set by the court, arguing that his clients present no flight risk and could be instead monitored by GPS and released on their own recognizance.

The cases highlight how much energy Sessions is devoting to some of the pettiest crimes possible. Until he announced his zero-tolerance policy, illegal-entry prosecutions were all but unheard of in San Diego. And in the three contested cases, the government offered to free the defendants on time served if they pleaded guilty.

At least two of the defendants said they intend to seek asylum, which generally exempts people from criminal prosecution for illegally crossing the border. One of them, Yaneth, attempted to turn herself in at a legal port of entry but was turned away, according to court filings. Under U.S. law and international treaty obligations, Customs and Border Protection is required to let in migrants who say they fear persecution in their country of origin. But CBP faces a lawsuit in the Southern District of California alleging that the agency often flouts those rules.

Organizers with the caravan disputed that the migrants facing prosecution were affiliated with their group, though they said it’s possible that some had joined the caravan and later left it. At its peak, the number of migrants traveling with the caravan topped 1,000, but its numbers dwindled to fewer than 300 as some decided to remain in Mexico, were counseled that their asylum claims would be hard to press in U.S. courts or were repelled by the open hostility of top Trump administration officials.

“It’s pretty obvious that they don’t know who is part of the caravan or not,” said Alex Mensing — an organizer with Pueblos Sin Fronteras, which coordinated the caravan — noting that one of the defendants, Eric Alberto López Robles, is a Mexican national and that the caravan did not work with any Mexican adults. “It just doesn’t add up.”

Those crossing with the caravan were instructed to go through a legal port of entry to make their claims and were advised against crossing illegally, according to Nicole Ramos, the director of Al Otro Lado, a nonprofit group that is offering legal services to the caravan’s members. Ramos, who once worked as a federal public defender, said that in legal workshops, she warned about the threat of prosecution.

“After people were given transit visas, perhaps some of them went in other directions, but they were not integrated into the caravan,” she said. “The goal of the caravan was to get to Tijuana and present themselves legally. And as part of the legal orientation we gave, we specifically advised people about criminal prosecutions.”

Prosecuting people who are seeking asylum could violate international law, according to human rights advocates. Border Patrol was warned about this at least once, when the DHS Office of the Inspector General issued a report in 2015 saying the agency risked violating U.S. treaties by referring people for prosecution even though they expressed fear of persecution in their native country.

Immigrant rights advocates have been hearing for months from parents who were separated from their children and in some cases aren’t sure how to get in touch with them. The practice “is simply barbaric,” said Eleanor Acer, who leads the refugee protection program at Human Rights First.

“If other countries treated people seeking refugee protection in this way,” she said, “the United States would be appalled.”

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

Similar “strategies” have been tried and failed in the past under Administrations of both parties. But, doubling down on failed strategies, particularly when they disproportionately harm and punish a group consisting largely of Hispanics, is a Sessions specialty.

I will be interested to see how independent Article III Judges react to having their courtrooms clogged and judicial time focused on minor misdemeanors (rather than serious crimes) as part of the Administration’s enforcement apparatus

PWS

05-08-18.

GONZO’S WORLD: TRAVESTY AT JUSTICE: HOW SESSIONS’S DISINGENUOUS WHITE NATIONALIST AGENDA DEGRADES THE MEMORY OF AMERICAN CIVIL RIGHTS LEADER W.E.B. DU BOIS – “It is often said that elections have consequences. Distorting history, though, and the contributions of past scholars is not a political consequence but rather degrades our intellectual tradition.”

https://www.theguardian.com/us-news/commentisfree/2018/apr/26/jeff-sessions-is-shamefully-undermining-web-du-boiss-legacy?CMP=Share_iOSApp_Other

Marc Mauer writes in The Guardian:

Since 2002, the US Department of Justice’s WEB Du Bois program has sponsored research fellowships on issues of race and criminal justice. During Republican and Democratic administrations, a diverse group of academics have carried the spirit of the noted sociologist and civil rights leader to the race challenges of the 21st century. Given the racial disparity endemic at every stage of the justice system the DoJ’s investigation of these issues has been praiseworthy.

But with Jeff Sessions as attorney general exploring the roots of this injustice may now be compromised. In the recently released solicitation for the Du Bois fellowships the DoJ invited scholars to engage in research on five issues arising out of the “tough on crime” era that would make a student of the Du Bois legacy shudder.

Whereas Du Bois is widely known for promoting the idea that “the problem of the 20th century is the problem of the color line”, the DoJ solicitation displays no interest in such high-profile issues as police killings of unarmed black men or the impact of mass incarceration on the African American community. Instead, “protecting police officers” is the only area of law enforcement prioritized by the DoJ.

Another research priority, “enhancing immigration enforcement”, coming at a moment when barely disguised racist imagery accompanies those policies, seems particularly jarring when upheld in the name of a civil rights legend.

The DoJ approach to research is unfortunately consistent with the misconstrued “law and order” agenda that Jeff Sessions has brought to his leadership. Within a month of taking office Sessions had rescinded the Obama-era decision to phase out federal contracting with private prisons. That initiative had been based in part on an inspector general’s finding that such prisons had higher levels of assault and safety concerns than public prisons.

Sessions overturned a policy adopted by his predecessor Eric Holder that urged federal prosecutors to use their discretion to avoid bringing drug charges that would carry a mandatory minimum sentence if the facts of the case suggested that the defendant had little criminal history and was not a major player in the drug trade. A year after its implementation the number of such sentences had declined by 25%, with no adverse effects on drug law enforcement.

Sessions also has emerged as the primary political obstacle to the bipartisan sentencing reform movement on Capitol Hill

In contrast, Sessions now requires that federal prosecutors seek the most serious charge they can bring in every case. This policy is faulty on two counts. First, it fails to recognize that no two crimes or defendants are exactly alike, and that sentencing needs to be individualized. Second, the directive conflicts with the ethical standard for prosecutors to seek justice, not vengeance. In some cases, justice may represent a prison term, in others it may be placement in residential drug treatment.

Sessions also has emerged as the primary political obstacle to the bipartisan sentencing reform movement on Capitol Hill, and joined with President Trump’s barbaric call for the death penalty for drug sellers. At a moment when Americans increasingly recognize that treatment is more effective than punishment for addressing addiction, such a dehumanizing message will only inflame the public debate in unproductive ways.

Perhaps most unsettling about the Du Bois initiative and the thrust of current policy is its disconnect from evidence and the current realities of crime and justice. Certainly law enforcement officers need to be protected as they do their jobs, but so do communities of color when they are harmed by racist policing. Suggesting that we need to enhance immigration enforcement at a time when this is already at record levels fails to engage in the vitally needed conversation about how to develop immigration policy that offers refuge to those fleeing violence and enhances cross-border economic opportunity and family stability.

It is often said that elections have consequences. Distorting history, though, and the contributions of past scholars is not a political consequence but rather degrades our intellectual tradition.

Marc Mauer is the executive director of The Sentencing Project and the author of Race to Incarcerate

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

Sessions is and always has been a racist. That he has now shifted most of his intellectual dishonesty, intentionally racially inflammatory rhetoric, and false narratives to attacking Hispanics, immigrants, and gays, rather than concentrating on demeaning African-Americans, doesn’t change anything.

About the best that can be said for “Gonzo” is that he’s an “equal opportunity racist.” That he has risen to the position of Attorney General while espousing his White Nationalist views is a continuing stain on America and our national values. It’s also something for which the GOP must be held accountable once they finally lose their ultimately doomed quest to “Keep America White.”

Sen. Elizabeth Warren and others were right about Sessions. That they were ignored and rudely “tuned out” by their GOP colleagues is an ongoing national disgrace.

PWS

04-29-18

FORMER EOIR ATTORNEY EM PUHL SPEAKS OUT IN HUFFPOST: SESSIONS MAKING U.S. IMMIGRATION COURTS INTO 🤡 “CLOWN COURTS” 🤡 WHERE “JUSTICE IS A BAD JOKE,” BUT THE POTENTIALLY FATAL RESULTS ARE NO LAUGHING MATTER!

https://www.huffingtonpost.com/entry/opinion-puhl-legal-orientation-program_us_5adde3a4e4b075b631e82e2e

This will soon be the reality for the tens of thousands of individuals who are arrested and held in detention facilities by Immigration and Customs Enforcement. Earlier this month, the Department of Justice effectively decided to suspend the Legal Orientation Program, citing concerns about cost-effectiveness.

The Department of Justice established the LOP in 2003 to improve the efficiency of the immigration courts by helping unrepresented detained immigrants work with an attorney to prepare their cases. The program operates through 18 nonprofit organizations across the country and has a budget of just under $8 million. At least once a month, these organizations bring both paid attorneys and volunteers from the community to over 38 detention centers to educate detained immigrants about their rights through group orientations, individual consultations and self-help workshops.

These interactions with attorneys, along with the legal resources that the program makes available, help detained immigrants make informed decisions about their cases and prepare for their court hearings. LOP organizations also refer detained individuals to pro bono attorneys when they are unable to represent themselves or would benefit from direct legal representation.

JOHN MOORE VIA GETTY IMAGES

A father and daughter from Honduras wait for assistance at the Immigrant Respite Center after they were released from U.S. immigration officials on Feb. 23 in McAllen, Texas.

The men, women and children who LOP assists cannot search for help from attorneys on their own — many are confined in detention centers located hours from a major city — and the government does not provide them an attorney. Without LOP staff and volunteers physically visiting detention centers, detained immigrants must resort to calling attorneys through a phone system that either requires purchasing a phone card (something that is difficult when you have no access to money, because you are detained) or hoping law offices will answer collect calls. As a result, 84 percent of detained individuals do not have legal representation in deportation proceedings.

For over 50,000 detained immigrants every year, LOP organizations have provided the only guaranteed source of legal information and assistance in making informed decisions about their deportation proceedings. Because LOP organizations can also communicate with pro bono attorneys on the outside, this program also plays a crucial role in connecting detained individuals to legal representation. Represented individuals are more than twice as likely to avoid deportation, meaning LOP providers are directly responsible for helping detained immigrants avoid being deported, being torn away from their families and suffering the collateral consequences of being forced out of the country, which can include death.

In my visits to immigration courts across the country as a volunteer attorney, I have witnessed firsthand how the LOP volunteers serve as a rare lifeline for immigrants in detention. Each visit, I play my part in the same heartbreaking scene: I arrive with other volunteer attorneys to find an empty room with a TV screen. We are connected to a feed at one of the country’s many detention facilities, located in remote towns that would take hours to physically reach.

There are a number of immigrants waiting patiently to speak with us, sometimes a handful, sometimes over a dozen, almost all without a lawyer to represent them. Many of them do not understand why they have been in immigration custody or what was going to happen during the hearing that day. We have just a short time before they appear in court, giving us on average less than 10 minutes to attempt to answer the dozens of questions they have about their immigration cases.

At the end of the conversation with every individual, we always inform them that they should speak more in-depth with a volunteer through the Legal Orientation Program’s monthly visit. During the hearing, the immigration judge parrots the same advice: that they should to speak with LOP volunteers for more help with their questions, to help them find an attorney and to prepare them for the next hearing.

The DOJ would effectively eliminate the only guaranteed way that detained immigrants can access guidance in a high-stakes legal setting.

Opponents of the Legal Orientation Program argue that the program is “duplicative” because immigration judges are supposed to advise immigrants of their rights during their hearings. First, we should give up the pretense that someone without a law degree can understand one of the most complex areas of law after hearing it for the first time in the middle of a courtroom proceeding.

This argument also ignores the most important function of the Legal Orientation Program for immigrants and for defenders of the larger justice system in the U.S.: This program helps people find an attorney. An immigration judge, as opposed to an LOP volunteer, cannot, by definition, provide advice to the immigrant, cannot represent them in their hearings, and cannot facilitate communication with other attorneys who may provide them representation. The Legal Orientation Program fulfills these needs, which are pivotal to the functioning of a just legal system.

By cutting off individuals’ access to legal information through the Legal Orientation Program, and forcing those who are locked up during their deportation proceedings to get all information about their rights from an ostensibly neutral arbiter, the DOJ would effectively eliminate the only guaranteed way that detained immigrants can access crucial, reputable guidance in a high-stakes legal setting. This will affect the lives of everyone whom the current administration wants to detain, including those fleeing persecution, children, pregnant women, parents who are long-term residents of this country, people with medical conditions and even U.S. citizens.

In effect, without access to an LOP volunteer and attorney, almost anyone who is detained by ICE is virtually guaranteed to be deported, with no effective defense against a government attorney or an immigration judge, who has been mandated by this administration to close deportation cases as quickly as possible, fair day in court be damned.

If the Department of Justice moves to end the Legal Orientation Program for good, it will strip away the last shred of evidence that immigrants have a right to due process and will eliminate any semblance of justice left in the immigration system. The immigration courts will effectively become a sham, in utter betrayal of our country’s rich immigrant heritage.

Em Puhl is a San Joaquin Valley Law Fellow at the Immigrant Legal Resource Center, and a former attorney adviser at the Executive Office for Immigration Review in the Department of Justice.

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

Shortly after Em’s article came out, Sessions yielded to bipartisan pressure from Congress and “temporarily reinstated” the LOP. But, his so-far aborted attempt to destroy the LOP remains the most bone-headed, dishonest, and downright despicable attack yet on what little remains of the pretense of justice in our U.S.Immigration Courts by Sessions.

As a former U.S. Immigration Judge, I can testify, as can almost all of my former colleagues, DHS Assistant Chief Counsel, and anyone else actually familiar with and working in the Immigration Court system that the LOP probably provides the best “value for the dollar spent” of any program in EOIR.

PWS

04-25-18

GONZO’S WORLD: Scofflaw Sessions Rapped Again For Violating Constitution On His “Sanctuary Cities” Nonsense! — “But there is no evidence of record, and Defendants do not argue, that Defendants based this conclusion on any findings or data. Therefore, the Court cannot conclude that Defendants had a “reasonable basis” for imposing the Challenged Considerations.”

https://www.nytimes.com/2018/04/12/us/justice-department-police-immigration-california.html?smprod=nytcore-ipad&smid=nytcore-ipad-share

Jennifer Medina reports for the NY Times:

LOS ANGELES — The Justice Department cannot require that local police departments help immigration agents in order to receive federal funding, a federal judge has ruled. The ruling is a significant victory for local governments that have opposed the Trump administration’s stance on immigration and vowed to stay out of enforcement efforts.

United States District Judge Manuel Real in Los Angeles issued a permanent, national injunction against the federal funding rules, giving the city an important win in a long-running legal battle with Attorney General Jeff Sessions and the White House.

The ruling is “a complete victory,” Mike Feuer, the Los Angeles city attorney, said Thursday. “This is yet another dagger in the heart of the administration’s efforts to use federal funds as a weapon to make local jurisdictions complicit in its civil immigration enforcement policies.”

A Justice Department spokesman, Devin M. O’Malley, suggested an appeal was likely.

The federal government is legally entitled to give priority in its grant funding to local governments “that prioritize the safety of their communities and their law enforcement officers when they promise to cooperate with federal immigration authorities seeking information about illegal aliens who have committed crimes,” he said in a statement.

“Unfortunately,” he added, “the court not only rejected this common-sense conclusion, but it chose to issue a permanent nationwide injunction that is overbroad and inconsistent with the rule of law. We look forward to continuing the strong defense of our position.”

Photo

Los Angeles has received millions of dollars under a federal program to promote community policing.CreditMonica Almeida/The New York Times

The ruling handed down Wednesday came in one of several lawsuitsthat state and city officials in California have filed against the federal government arguing that it has overreached in trying to force local officers to help with immigration enforcement.

“The Trump administration cannot manipulate federal grant fund requirements to pressure states, counties or municipalities to enforce federal immigration laws,” Xavier Becerra, California’s attorney general, said last year when the state filed a lawsuit against the administration for denying funding to so-called sanctuary cities.

Last month, a federal district judge declined to issue a preliminary injunction against the federal government in that case, saying that the courts in other parts of the country had reached different conclusions and that “issues in this case will benefit from further development.”

After that ruling, the Trump administration filed its own lawsuit against California over its own “sanctuary state” law, which prevents the police in many cases from holding people at the request of federal immigration agents, and limits the sharing of information about the release of some county jail inmates who are in the country illegally. In its suit, the federal government argues that the law makes it impossible for immigration officers to do their jobs. A hearing in the case is scheduled for late June.

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

Read the complete article at the link.

The losses just keep piling up for Gonzo & Co. And, not surprisingly, the inability of Gonzo to provide anything approaching a rational basis for his actions is a continuing problem.

He’s a guy whose career has been based on bias and racism. And, when that’s the only unstated rationale for a program, many Federal Courts are seeing right through the ruse. No, terrorizing communities and destroying relationships that have taken decades or more to build is not about effective law enforcement! It’s all about racism and bias.

Here’s a link to Judge Real’s decision in City of Los Angeles v. Sessions

https-ecf-cacd-uscourts-gov-doc1-031127943445

PWS

04-14-18

SATIRE FROM ANDY BOROWITZ @ THE NEW YORKER: “Furious Koch Brothers Sell Paul Ryan on eBay”

https://www.newyorker.com/humor/borowitz-report/furious-koch-brothers-sell-paul-ryan-on-ebay?mbid=nl_Borowitz%20041118%20Afternoon&CNDID=48297443&spMailingID=13293418&spUserID=MjQ1NjUyMTUwNjY5S0&spJobID=1380975479&spReportId=MTM4MDk3NTQ3OQS2

Furious Koch Brothers Sell Paul Ryan on eBay

By Andy Borowitz

April 11, 2018

Photograph by Win McNamee / Getty

WASHINGTON (The Borowitz Report)—In a fit of pique, David and Charles Koch have unceremoniously listed House Speaker Paul Ryan for sale on the auction site eBay.

The Kochs, who reportedly had purchased Ryan for a sum estimated in the tens of millions, now seem likely to lose their entire investment.

According to Ryan’s listing on the auction site, the Kochs set a five-hundred-dollar asking price for the used congressman, a figure that, in light of the tepid bidding for him, seems optimistic.

“Granted, owning Paul Ryan doesn’t have the benefits that it’s had for David and Charles for all of these years, but the status of owning a former Speaker of the House has to be worth something,” one Koch associate said. “Certainly more than the current high bid of seventeen dollars.”

The eBay listing suggested several possible uses for the former House Speaker, including as a Halloween ornament or garden gnome.

GONZO’S WORLD: LA TIMES — Gonzo’s Proposed Immigration Judge Quotas Are A REALLY DUMB Idea! – But, Then, This Is A Dude Who Takes Pride In His Prejudice & Lives On The Wrong Side Of Racial Justice & U.S. History!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=841c986a-d552-4fdb-9493-56720e6f6caa

The LA Times Editorial Board writes:

There is no dispute that the nation’s immigration court system is drowning in its own caseload. It began under the Obama administration’s ramped-up efforts to deport people in the country illegally who had recently crossed the border or who had criminal histories, and accelerated under President Trump’s campaign to roust as many undocumented people as he can. Over the past two years the backlog of active deportation cases has increased from 516,000 to 685,000, according to the Transactional Records Access Clearinghouse at Syracuse University, and the cases have taken, on average, almost two years each to be decided — 711 days.

Now Atty. Gen. Jeff Sessions is pushing immigration judges to speed things up. Starting in October, the department will measure judges’ performance by a new standard that requires each of them to clear 700 cases a year, with fewer than 15% of decisions sent back by appeals courts, in order to receive a “satisfactory” rating.

That’s an assembly line, not a judicial system, and it runs the very real risk of subverting due process rights as individual judges place their job security ahead of justice.

The immigration courts — a branch of the Justice Department, not part of the independent judiciary — have been understaffed for years. Making matters worse, the pace of proceedings is slowed not only by sheer volume, but also by the absence of attorneys to steer clients through the process (immigrants facing civil deportation proceedings are not entitled to government-supplied lawyers, as they would be in criminal cases). Other challenges include the difficulty in procuring and verifying documents from other (sometimes unstable) countries and the time required to weigh evidence in asylum requests and other complex cases.

Judges and immigration lawyers have warned that speeding up the process could increase the number of appealable decisions because there would be legitimate questions over whether a decision to refuse to hear a witness as duplicative, or to not admit further evidence, is based not on the merits but on the fact that the judge is lagging behind in closing cases.

As it is, judges clear an average of 678 cases a year, so pushing that up to 700 might not seem like a big change. But the clearance rate is well below that average in courts where cases are more complex, and there, the effect of the new quotas could be severe. Judges near the southern border handling cases involving new arrivals are able to make decisions faster than, for instance, a judge in the interior of the country handling cases involving people who have established deep roots or have dependents who are American citizens. Cases involving unaccompanied minors can be particularly complex because the law allows a variety of relief options, including requesting asylum or seeking “special immigrant juvenile status” if they have been abused or abandoned by their parents. Given the totality of Trump and Sessions’ attitudes toward people living in the country without permission, it’s not unreasonable to see this imposition of quotas as a pretext for speeding up deportations, due process be damned.

The government, of course, has a right to establish immigration policies and a duty to secure borders. But even noncitizens enjoy the protections of the Constitution, including the right to due process, when they are in the country. This attempt to accelerate the pace of justice through a management-

directed quota system imperils that.

The smarter way to reduce the backlog of pending cases is to expand the court system itself, which Congress, to its credit, has finally begun to do. The current budget includes funding to add 100 judges to the 350 existing positions, and money to speed up the hiring process. Besides, as a Government Accountability Office report last June found, delays in individual cases usually are due to matters beyond a judge’s control. About a quarter of postponements, or continuances, were the result of technical or other operational problems in the courtroom, or the fault of the Department of Homeland Security, such as not having the deportation target available for the hearing. Forcing the judges to speed things up when they don’t control the things that slow the system down will, in all likelihood, make the system more unfair.

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

Even adding Immigration Judges and staff will not be enough unless the outdated bureaucratic “Vatican type” structure is abandoned and modern technology and court administration services are brought into the picture.

Moreover, the now ingrained practice of both overt and covert political interference in the Immigration Courts’ docket management must end and the emphasis must be placed solely on due process, fairness, quality, and judicial efficiency.

My experience is that left to their own devices, Immigration Judges are hard-working and dedicated to “getting the job done.” With an independent authority, I believe that the system would over time develop “best judicial practices” and be able to better manage and control the docket. This problem has built up over decades; expecting a “silver bullet” solution that will eliminate the backlog overnight is highly unrealistic.

Yes, there are huge discrepancies in decision outcomes. But, if the system were left to its own devices, these could be sharply reduced, even if not completely eliminated, over time. A true merit based selection system that operates in a more realistic time frame and draws judges of different backgrounds and experiences into the mix would also help in promoting the dialogue and critical thinking necessary to achieve systemically fair results.

PWS

04-10-18

THE HILL: NOLAN SAYS SESSIONS’S “PRODUCTION QUOTAS” CAN’T SOLVE BACKLOG – HE’S RIGHT!

http://thehill.com/opinion/immigration/381616-immigration-judge-quotas-will-not-eliminate-the-backlog-crisis

Nolan writes:

. . . .

But here’s a better reason to oppose the quotas: Session’s performance goals are not an effective way to deal with the backlog crisis.

As of March 5, 2018, there were approximately 350 judges, and the immigration court had 684,583 pending deportation cases.

If the judges do 700 cases-a-year, it will only dispose of approximately 245,000 cases-a-year. At that rate, it would take almost three years to eliminate the backlog … if there are no new cases. But there will always be new cases.

Sessions also will hire more judges, but the problems the immigration court is having with the current judges should be addressed first to determine whether the selection process needs to be changed.

From FY2013 through FY2017, 379 complaints were filed against the judges, approximately 30 percent of the judges every year!

Also, there are gross disparities in the way the judges are applying the law.

TRAC Immigration reports that the outcome at asylum hearings over a six-year period depended largely on which judge was assigned to the case.

For the 6,922 asylum seekers whose applications were adjudicated at the San Francisco Immigration Court, the likelihood of a denial varied from only 9.4 percent up to 97.1 percent, depending on which judge handled the case.

For the 1,233 individuals whose cases were heard at the Newark Immigration Court, the likelihood of a denial ranged from 10.9 percent up to 98.7 percent, depending on which judge handled the case.

In other words, the likelihood of being granted asylum in these courts could be as high as 90 percent or as low as 3 percent, depending upon which judge handles the case.

According to a Reuters report on disparities in how frequently immigrants are deported in removal proceedings, “the findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.”

GAO makes similar findings in its November 2016 report on variations in the outcomes of applications across immigration courts and judges. GAO also found that judges with 7 years of experience were 28 percent less likely to grant asylum than less experienced judges, which could be a factor in explaining the disparities.

Are unqualified judges being hired? Is the training program for new judges inadequate?

To some extent, the problem may be due to misconduct on the part of officials involved in the selection process.

For instance, in 2004, the Justice Department paid $11.5 million to settle a class action suit claiming that the immigration judge hiring practices of the Executive Officer for Immigration Review were discriminatory. Four years later, Monica Goodling from the Office of the Attorney General admitted that she had taken political considerations into account in soliciting candidates and reviewing applications.

In any case, it is apparent that Sessions isn’t going to eliminate the backlog crisis by setting performance goals or hiring more judges. He has to reduce the number of cases the immigration court has to handle.”

. . . .

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

Read Nolan’s complete article over on The Hill at the link.

Nolan’s points are well taken! He’s asking the types of obvious questions that folks genuinely interested in fixing this system should be asking. But, significantly, Jeff Sessions isn’t asking those types of questions!

The current Immigration Court system needs thoughtful quality control and due process targeted reforms on many levels, including a real merit-based hiring system — preferably run by the Article III Federal Courts. After all, the Federal Courts are the “ultimate consumers” of the Immigration Court’s work product.

According to the recent GAO study, it currently takes an average of two years — fully half of an Administration — to hire an Immigration Judge! That’s longer than the Senate confirmation process!

Sessions has promised but not delivered on yet another bureaucratic opaque system that would supposedly reduce the hiring cycle to 10 months, still ridiculously long. At most, IJ hiring should be on a 3-6 month cycle.

By comparison, in 1995 when I was hired, then EOIR Director Tony Moscato and Attorney General Reno had the Chairman and eight additional Board Members (“Appellate Immigration Judges”) hired, background cleared, and actually on board within a six month period — even though it involved a regulations change to increase the number of Board Members.

And, it’s certainly not that the current process produces remarkable results in terms of either diversity or background. Nearly 90% of the Immigration Judges hired over the past 10 years have come from very similar government backgrounds — mostly DHS and DOJ attorneys.

Attorneys from the private sector and academia, even those with superior qualifications, effectively have been systematically excluded from the 21st Century Immigration Judiciary. As Nolan pints out, the system cries out for judges of the highest caliber and universal reputations for fairness and scholarship as well as the ability to deal in an effective professional manner with the many “performing artist” aspects of running a fair courtroom in a stressful high volume system.

Additionally, a comprehensive 2016 report by Human Rights First (“HRF”) found that the appropriate number of case completions per Immigration Judge should be no more than 500 per judge to produce fair, high quality decisions that would meet the criteria for judicial review. So, why, without even referencing that report or reaching out to HRF, would Sessions & Co. create a “quota” that is 140% of that optimum number?

Here’s a link to the HRF Report:

HRF-In-The-Balance

How is this about building a real due process court system rather than a “deportation railroad?” Obviously, Sessions is only interested in the latter.

HRF actually went to experts involved in the Immigration Court system. Sessions, who has never been an Immigration Judge and disrespects most of those actually involved in the system, apparently invented his “quotas” without any meaningful input from any of the folks who actually work in and use the system.

As Nolan points out, the “wheels are coming off” the Immigration Court system. Mindless, “haste makes waste,” just pedal faster” invectives from Sessions can’t and won’t solve the problem.

That’s why Congress must create an independent Article I U.S. Immigration Court — devoted to the only true purpose any court system can have: guaranteeing fairness and due process for all individuals appearing before it! That has nothing whatsoever to do with fake assembly line “production quotas!”

PWS

04-04-18

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Objections in Immigration Court: Dost Thou Protest Too Much or Too Little?1

Hon. Dorothy Harbeck 2

I. Introduction

II. The First Quatrain — Questions that Elicit an Organic Response

Argumentative

Form

Compound Question/Double Question

Confusing/Vague/Ambiguous

Counsel is Testifying/Misstates Evidence/Misquotes Witness/Improper Characterization of Evidence

Narrative

III. The Second Quatrain — Questions Based on What Has Happened in Court

Assumes Facts Not in Evidence

Beyond The Scope of Direct/Cross/Redirect Examination

Speculative

Foundation/Lack of Personal Knowledge

IV. The Third Quatrain — Imagery: Questions Based On Rules

Best Evidence Rule

Opinion

Privileged Communication

Public Policy

V. The Couplet — The Volta: The Takeaway, Most Important Objections

Leading on Direct Examination

Rule 403 (Undue Waste of Time or Undue Prejudice/Immaterial/Irrelevant/Repetitive/Asked and Answered/Cumulative/Surprise)

Footnotes

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