TAL @ CNN: DENYING DUE PROCESS IN U.S. IMMIGRATION COURTS — Sessions’s Plans & Actions Contravene Many Key Recommendations Of Recent Independent Internal Evaluation – Feuding With Judges, Suspending Legal Orientation Program, Establishing Evaluations Based On “Quotas,” Detailing Judges To Border Detention Centers, Restricting Administrative Closing, Increasing Use Of Televideo Hearings, Emphasis On Increasing Removals Over Due Process All Run Counter To Recent Recommendations!

http://www.cnn.com/2018/04/23/politics/immigration-courts-justice-department-report/index.html

Justice report’s findings clash with Sessions’ actions

By Tal Kopan

Attorney General Jeff Sessions has made overhauling the chronically backlogged immigration courts a top priority — but some of his moves seem to run counter to recommendations in a Justice Department-commissioned report made public on Monday.

While some of the recommendations, such as increasing staffing, have been part of his efforts, other steps — such as requiring judges to process a target amount of cases — run contrary to the study’s suggestions.

The report was written by consulting firm Booz Allen Hamilton last April after a yearlong analysis commissioned by the Justice Department’s immigration courts division. A redacted version was made public Monday as the result of a Freedom of Information Act request by the American Immigration Lawyers Association and American Immigration Council.

The report looks at the chronic inability of the immigration courts to keep up with the number of cases before them. Cases related to immigration status are handled in a court system separate from the typical criminal and civil courts in the US — a system that is run entirely by the Justice Department and in which the attorney general effectively functions as a one-man Supreme Court.

Because cases can take years to finish, undocumented immigrants can end up living and building lives in the US as they await a final decision on whether they are legally allowed to stay in the US — something the Trump administration has cited as a driver of illegal immigration.

The Booz Allen Hamilton analysis identifies a number of issues that contribute to the backlog, including staffing shortages, technological difficulties and external factors like an increasing number of cases.

Sessions has worked to hire more immigration judges and has ordered other upgrades like the use of an electronic filing system, as the report recommends.

But the American Immigration Lawyers Association expressed concern about a number of other recommendations that seemed ignored or on which opposite action was taken.

Responding to the report, a Justice Department official who requested not to be named said that the efforts of the department are “common-sense.”

“After years of mismanagement and neglect, the Justice Department has implemented a number of common-sense reforms in the immigration court system, a number of them address these issues and we believe that focusing our efforts on these reforms has been an effective place to start,” the official said.

The report’s recommendations include a performance review system for judges, who are hired and managed by the Justice Department, that “emphasizes process over outcomes and places high priority on judicial integrity and independence,” including in dialogue with the union that represents immigration judges. The Justice Department recently rolled out a performance metrics system, though, that requires judges to complete a certain number of cases per year and sets time goals for other procedural steps along the way, which immigration judges have strongly opposed as jeopardizing the ability of judges to make fair, independent decisions.

In a call with reporters, AILA representatives and a retired immigration judge argued that while the report doesn’t explicitly reject a quota system, it’s clear that putting one in place is contrary to the recommendation. They say that judges who are fearful of their job security and opportunity for advancement may be pressured to speed up hearing cases at the expense of due process for the immigrants, which could skew the outcome of the case.

A Justice Department official said the agency rejects the notion of a “false dichotomy” that improving efficiency sacrifices due process and said the agency has also put in place court-based metrics that lend itself to the recommendation of the report.

In another example, the report recommends that the Justice Department consider expanding legal orientation programs for immigrants and increasing their access to attorneys, so they can better navigate the system. The Justice Department recently put on hold a legal advice program for immigrants in the courts, saying it needed to be reviewed, though audits in the past had consistently shown it was productive and had saved the government money long-term. Officials say they may reinstitute the program if the audit shows it is effective.

The report also recommends limited use of video hearings, saying judges are stymied by technical difficulties and also are less able to read the subtle cues and nonverbal communications of witnesses and people involved in the hearings. Sessions’ immigration courts plan includes expanding the use of video hearings.

In another example, one of Sessions’ first moves in taking office was to send a number of judges to the border on a temporary assignment to handle cases there. The report says temporary assignments should be avoided, as they create more delays when judges have to catch up on their workloads back home.

The report also recommends administratively closing cases if they are being adjudicated in some other venue, like a visa petition or another court case. The Trump administration has sought to curtail the administrative closing of cases.

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DOJ’s ridiculous claim that Sessions’s actions are “common sense” is refuted by virtually everyone with expertise or true understanding of the Immigration Court system including those working in it, those stuck in it, and even ICE!

There can be no effective, Due Process oriented, “actual common sense” Immigration Court reforms so long as Jeff Sessions controls those courts.

PWS

04-23-18

PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”

https://projects.propublica.org/asylum/#how-asylum-works

Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.

The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck — in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.

The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.

The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.

But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.

When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.

Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.

But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”

Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.

“We have a system that’s not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”

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Read the narrative and play the interactive “Waiting Game” at the above link!

Getting refuge often depends on getting the right:

Border Patrol Agent an Asylum Officer to even get into the system;
Lawyer;
Local Immigration Court;
Immigration Judge;
DHS Assistant Chief Counsel;
BIA Panel;
U.S. Court of Appeals jurisdiction;
U.S. Court of Appeals Panel;
Luck.

If something goes wrong anywhere along this line, your case could “go South,” even if it’s very meritorious.

I also agree with Professor Hing that given the UNHCR guidance that asylum applicants ought to be given “the benefit of the doubt,” the generous standard for asylum established by the Supremes in INS v. Cardoza-Fonseca and implemented by the BIA in Matter of Mogharrabi, and the often irreversible nature of wrongful removals to persecution, the system should be designed to “error on the side of the applicant.”

Indeed, one of the things that DHS in my experience does well is detecting and prosecuting systemic asylum fraud. While a few individuals probably do get away with tricking the system, most “professional fraudsters” and their clients eventually are caught and brought to justice, most often in criminal court. Most of these are discovered not by “tough laws” or what happens in Immigration Court, but by more normal criminal investigative techniques: undercover agents, tips from informants, and “disgruntled employees or clients” who “blow the whistle” in return for more lenient treatment for themselves.

Hope YOU get protected, not rejected!

PWS

04-23-18

MORE GOOD NEWS FROM PROFESSOR ALBERTO BENITEZ @ GW LAW: Two More Northern Triangle Lives Saved By Asylum Grants in Arlington – Giving Lie To the Trump Administration/Restrictionist Claim That Northern Triangle Refugees Are “Economic Migrants” — No, The Vast Majority Are “Legitimate Refugees” Being Screwed Over By Our Government’s Skewed, Dishonest, Immoral, & Often Illegal Policies

Friends,

Please join me in congratulating GW Immigration Clinic alum Shira Zeman, ’12, who won an asylum grant for a Central American Mom and her 5 year-old son earlier this week. Please see the attached picture, which I use with permission. Gang members threatened to kill Mom if she did not allow them to use her son in gang activities. These same gang members murdered one of Mom’s neighbors, a police officer, after he refused to allow a family member to join the gang. Mom testified for over an hour, after which the ICE trial attorney told the Immigration Judge she did not oppose asylum. Shira said: “He’s 5 now, but he had just turned 3 when they tried to ‘recruit’ him so he could be used as a drug mule.”

Intense. This installation is a must-see. Being in the ‘hielera,’ and in the ‘desert’ witnessing nighttime arrests by the Border Patrol, was beyond belief. Visitors were in tears and one fell to her knees. I read this Washington Post article prior to my visit but I was unprepared for the experience.

https://www.washingtonpost.com/goingoutguide/alejandro-g-inarritus-virtual-reality-voyage-is-dcs-most-intriguing-experience-right-now/2018/04/11/d2714380-3c04-11e8-974f-aacd97698cef_story.html?utm_term=.8f8162e02386

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Congratulations to Shira Zeman, Esq., of Zeman & Petterson PLLC, Falls Church, VA. I’m awed by the legal accomplishments and lives saved by Shira and her law partner Rachel Petterson! Hard to believe that she’s only six years out of law school!

We hear it all the time from Trump, Sessions, Nielsen, CIS, FAIR, GOP White Nationalist right wingers, right-wing media, and perhaps most disturbingly sometimes officials at EOIR and Immigration Judges. These aren’t “real refugees,” just folks coming here to work.

Nothing could be further from the truth. Make no mistake about it, these are “real refugees” intentionally being given the shaft by our biased and unfair Government and in far too many cases being denied the life-saving protection to which they are entitled under both U.S. and international law!

In my experience, few individuals, particularly women and children, undertake the long, dangerous, and uncertain journey from the Northern Triangle to our Southern Border unless they are forced migrants. Indeed, I found that many of the individuals coming from the Northern Triangle were doing fine economically and would have vastly preferred to stay in their homes, rather than being relegated to sometimes menial “entry-level” jobs even when they are able to be released in the U.S. Successful students sometimes lose credit in U.S. school systems and must “start over again” in lower grades or special programs.

Indeed, perhaps ironically, their success helped make them very visible, distinct, and attractive targets for both persecution by the gangs and sometimes also for extortion and mistreatment by corrupt police and government officials in the Northern Triangle. Others were perceived by the gangs to be actual or potential political leaders in the “anti-gang movement.” Moreover, as gangs increasingly become involved in the political process in the Northern Triangle, opposition to gangs takes on heavy political implications.

No, this case is not an “aberration or an exception.” There are lots of similar or identical “moms and kids” out there from the Northern Triangle fighting every day for their very lives in a system already rigged against them and which Jeff Sessions has pledged to make even more unfair and more “user unfriendly.”

The things that allowed this “mom and child’ to succeed are:

Representation by a great lawyer like Shira;
Freedom from detention;
Adequate time to prepare and document the case;
A fair, knowledgeable Immigration Judge not biased against or dismissive of Northern Triangle asylum seekers;
An experienced DHS Assistant Chief Counsel committed to a fair application of asylum law and unafraid to recognize when further litigation or appeal would be counterproductive for both the individual and the court system.

An Attorney General truly interested in upholding the rule of law and our Constitution would be working to replicate what happened in this case elsewhere and to look for ways in which refugees like this could be recognized without having to go to a final merits hearing before an Immigration Judge. He or she would also be encouraging others in the Administration to focus on addressing the problems in the Northern Triangle causing this humanitarian migration, instead of focusing solely on fruitless attempts to discourage and deter the vulnerable migrants themselves.

But, that would an Attorney General “OTJS” — “Other Than Jeff Sessions.”

PWS

04-23-18

GOV’S CRUEL IN ABSENTIA HOAX EXPOSED – NEW CLINIC/URBAN JUSTICE CENTER REPORT SHOWS HOW DHS & EOIR INTENTIONALLY USE BROKEN SYSTEM TO CONSTRUCT A “KNOWINGLY FALSE NARRATIVE” THAT ASYLUM SEEKERS SHIRK HEARINGS – Actually, Representation & Other Very Achievable Reforms Would Raise Appearance Rate Close To 100% — Trump Administration Doubles Down On Obama’s Dishonest Due Process Travesty!

“I answered them that it was not Roman practice to hand over an accused person before he has faced his accusers and had the opportunity to defend himself against their charge.”

Acts 25: 16

HERE’S THE REPORT:

Denied-a-Day-in-Court

EXECUTIVE SUMMARY

Starting in the summer of 2014, the United States began experiencing an unprecedented influx of Central American families who were fleeing violence and seeking humanitarian assistance and safety. Most of these families were from El Salvador, Guatemala, and Honduras. In response, the Obama Administration ordered immigration judges to rapidly adjudicate these cases, often at the cost of

due process. Large numbers of families, unable to obtain legal representation and navigate a complex immigration system, were deported by the federal government, often back to the violence they had fled. Essential to the government’s efforts was the use of in absentia removal orders issued to families upon their missing an immigration court hearing.

In response to the unmet legal needs of this population, the Asylum Seeker Advocacy Project
(ASAP) at the Urban Justice Center and the Catholic Legal Immigration Network, Inc. (CLINIC) began representing families ordered removed in absentia. In almost every case, ASAP and CLINIC successfully challenged the underlying in absentia order and reopened the case. Concurrently, through a Freedom of Information Act (FOIA) request, these organizations obtained previously unreleased immigration court data that reveal key metrics regarding legal representation rates and the use of in absentia removals. Client interviews and data from the FOIA together reveal a startling trend—the government ordered the removal of high numbers of unrepresented families through in absentia orders despite many of those families having passed a credible fear interview with an asylum officer.

This report highlights the high rate of unrepresented families, discusses the obstacles families face in attending their hearings, explains how the immigration system fails families seeking asylum, and provides policy recommendations for how the Administration and Congress can address these shortcomings.

The findings in this report are based on an analysis of the FOIA results regarding representation and removal of 29,808 families from July 2014 to November 2016, as well as the results of the 46 cases in which ASAP and CLINIC provided representation. These findings include the following:

• 22,270 asylum applicants, or 75 percent of the 29,808 families who entered the United States between July 2014 and November 2016, did not have legal representation.

• In 24,862 cases, or 83 percent of the 29,808 families, an immigration judge ordered a family removed. Of those ordered removed, in 21,041 cases, or 85 percent, the order was issued in absentia, i.e. the judge entered the order without the presence of a parent in the court room. Thus, immigration judges ordered the families removed without their having presented their claims for asylum or other defenses to removal.

ASAP and CLINIC successfully challenged the in absentia orders of 44 of their 46 clients (96 percent), with either an immigration judge or the Board of Immigration Appeals (BIA) agreeing to rescind the in absentia order and reopen the case.

Contrary to the narrative that families purposely abscond from immigration court, ASAP and CLINIC’s clients all had legitimate reasons for being unable to attend their hearings, including lack of notice, incorrect government information, serious medical problems, language barriers,
and severe trauma or disabilities. Importantly, ASAP and CLINIC’s clients represented nationals from El Salvador, Guatemala, and Honduras who had received removal orders from 15 different immigration courts. Most of these families were alerted to their removal orders by prior pro bono counsel who represented them while they were in detention, and who then connected them with ASAP and CLINIC’s services. The other families sought general information about asylum from ASAP and CLINIC, leading them to realize they had missed a hearing. Once families became aware of their in absentia removal orders, they overwhelmingly sought to reopen their cases to seek asylum.

ASAP and CLINIC’s high success rate suggests the federal government is deporting large numbers of families without providing them a fair opportunity to plead their cases in immigration court.While ASAP and CLINIC’s data runs through the end of the Obama Administration, in absentia removal orders continue to be issued in immigration courts throughout the country.In order to limit the deportation of families with strong asylum claims and other avenues for immigration relief, the Department of Homeland Security (DHS), the Department of Justice (DOJ), and Congress should implement a variety of legislative and administrative changes that would remedy many of the problems identified in this report. These much-needed changes include improving communication between agencies, providing clearer guidance to families, and updating existing immigration court and enforcement practices.

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This report’s findings certainly match my experience in the Arlington Immigration Court that:

The “no-show” rate for represented asylum seekers was pretty close to 0%.
More than 95% of “in absentia” orders for juveniles eventually were reopened, usually because of defective notice by DHS and/or EOIR.
Almost no unrepresented individuals understood the difference between the “DHS Check-In on Prosperity Avenue” and appearance at the Arlington Immigration Court in Crystal City. Clearly, it had never been explained to them in understandable fashion upon release from custody.

I also have no doubt that the very achievable recommendations for improvements in this report could be accomplished at a fraction of the cost of today’s cruel, ineffective, policies of militarizing the border, building the “New American Gulag,” prosecuting asylum seekers as criminals, and attempting to curtail important legal and Constitutional rights.

PWS

04-20-18

GONZO’S WORLD: AG’S ASSAULT ON CONSTITUTION & SEPARATION OF POWERS TOO MUCH FOR SOME GOP-APPOINTED ARTICLE IIIs!

James Hohmann writes in the Washington Post:

THE BIG IDEA:

A panel of three judges, each appointed by a Republican president to the federal appeals court in Chicago, ruled unanimously on Thursday against President Trump’s effort to withhold money from “sanctuary cities.”

The U.S. Court of Appeals for the 7th Circuit upheld a nationwide injunction that blocks the Justice Department from using “the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.”

Trump’s latest courtroom defeat offers yet another civics lesson about checks and balances for the first president in American history who lacks any prior governing or military experience. Unlike congressional Republicans who have by and large kowtowed and capitulated to Trumpism, despite private uneasiness and grumbling in many cases, Republican-appointed judges are free not to care about the wrath of the president or blowback from his loyalists. This gives them the breathing room to worry more about the rule of law than partisanship. That was the point of an independent judiciary and giving lifetime appointments. It’s how the Constitution is supposed to work.

Judge Ilana Rovner, who was appointed to a district judgeship by Ronald Reagan and elevated to the circuit by George H.W. Bush, offers a remarkable rebuke of the Trump administration in a 35-page opinion that can be read as a tutorial on the separation of powers. She even throws around words like “tyranny” that you don’t often see in opinions of this nature:

“Our role in this case is not to assess the optimal immigration policies for our country,” she writes. “Rather, the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government …

“The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken …

“Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor … did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever‐vigilant in that endeavor.”

Rovner, 79, and her parents fled Latvia, and the Nazis, when she was an infant. She lost family members in the Holocaust. She often says that she decided to become a lawyer to stop anything like that genocide from happening again. Displayed in her chambers are the green card she was issued when she arrived in America in 1939 and her mother’s passport. “These are the things that saved my life,” she told the Chicago Tribune for a 2011 profile.

Her scathing opinion was joined by Judge William Bauer, who was appointed by Gerald Ford. Judge Daniel Manion, who Reagan put on the bench, wrote a concurrence saying he would have narrowed the injunction to protect only Chicago, rather than keeping it national.

The injunction was ordered last September by District Judge Harry Leinenweber, who was also appointed by Reagan.

2:02

Sessions in 2017: ‘Sanctuary’ cities lead to crime

Attorney General Jeff Sessions criticized Chicago’s sanctuary city policy while speaking in Miami on Aug. 16, 2017. (Reuters)

Attorney General Jeff Sessions has tried to require that cities give federal immigration agents access to undocumented immigrants who are in their jails in order to get certain public safety grants. This effort has already been blocked in separate lawsuits by federal judges in California and Pennsylvania. The judge who blocked the administration from holding back money from Philadelphia, Michael Baylson, was appointed by George W. Bush and wrote an unusually long 128-page ruling against the administration in November.

The 7th Circuit opinion yesterday complains that the term sanctuary cities “is commonly misunderstood” and “a red herring.” Contrary to popular understanding, the judges explain, “the federal government can and does freely operate in ‘sanctuary’ localities.”

— The Justice Department quickly criticized the ruling, saying the administration continues to believe it has the power to attach strings to money appropriated by Congress and complaining that courts keep issuing broad injunctions that thwart Trump. “Many in the legal community have expressed concern that the use of nationwide injunctions is inconsistent with the separation of powers, and that their increased use creates a dangerous precedent,” DOJ spokesman Devin O’Malley said in a statement. “We will continue to fight to carry out the department’s commitment to the rule of law, protecting public safety, and keeping criminal aliens off the streets to further perpetrate crimes.”

— Chicago Mayor Rahm Emanuel held an afternoon news conference to blast Trump as petty for refusing to hand over the grant money while the case continues to play out in the courts. “The Trump Justice Department could actually say ‘OK, we’re going to go forward with these grants, and let’s fight the case out in court,’” said the Democrat, who was Barack Obama’s first White House chief of staff. “But they refuse to give municipalities like Chicago and other cities around the country the resources to fight crime and gun violence, because they think fighting us on the principle of being a sanctuary, welcoming city, is more important than helping the police departments get the technology they need to do a better job in public safety.”

1:00

Supreme Court restricts deportations of immigrant felons

The Supreme Court ruled on April 17 that an immigration statute requiring the deportation of noncitizens who commit felonies is unlawfully vague. (Reuters)

— This is just the latest legal setback for Trump when it comes to his far-reaching immigration agenda.

On Tuesday, Justice Neil Gorsuch joined the Supreme Court’s four liberal members to strike down part of a federal law used to deport noncitizens who commit felonies on the grounds that it was unconstitutionally vague. The 5-to-4 decision could limit the government’s ability to deport people with criminal records, a Trump priority.

“Vague laws invite arbitrary power,” Gorsuch wrote in a concurring opinion. “Today’s vague laws … can invite the exercise of arbitrary power all the same — by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.”

“For the conservative Gorsuch to align with the liberals might seem a surprise, but his vote was in keeping with questions he asked during oral argument in October. And he was in part following in the footsteps of the justice he replaced, the late Antonin Scalia,” explains Supreme Court beat reporter Robert Barnes. “In 2015, Scalia wrote the court’s decision in Johnson v. United States, which struck down a similarly vague description of violent felony in the Armed Career Criminal Act.”

— Trump is incensed about Gorsuch’s vote. Administration officials say the president has been complaining to them that the justice “had proved too liberal in recent cases,” Robert Costa, Josh Dawsey and Rosalind S. Helderman report. “Associates … said it renewed his doubts that Gorsuch would be a reliable conservative. One top Trump adviser played down the comments as unhappiness with Gorsuch’s decision rather than with Gorsuch broadly.”

— In February, the Supreme Court rejected Trump’s request to immediately review the lower court decisions that prevent him from ending the Deferred Action for Childhood Arrivals program (DACA). Getting cert. would have only taken four votes, which means at least one GOP appointee opposed the administration’s request. The litigation over the fate of the “dreamers” will now follow the normal process, winding through the circuit courts.

1:35

President-elect Donald Trump pledged to end “sanctuary cities” while campaigning for the White House. Washington, D.C., is one such city. (Claritza Jimenez/The Washington Post)

— The courts have proved vexing for Trump since his first days in office. District Judge James Robart in Washington state, who was nominated by George W. Bush in 2004, halted the president’s first travel ban, which blocked citizens of seven majority-Muslim countries from entering the United States.

“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Trump tweeted angrily.

But it wasn’t. A three-judge panel on the 9th Circuit, which included another Bush 43 nominee, unanimously agreed. The administration withdrew the ban and issued another watered-down version.

— Barack Obama also lost cases in the courts, including on immigration. But he typically failed before conservative judges who had been appointed by Republicans more than judges appointed by his Democratic predecessors. The Harvard-educated former constitutional law professor had a much better record. To be sure, most judges appointed by Republicans are still siding with the administration most of the time. And Trump is remaking the judicial branch by appointing nominees who share his worldview.

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We should remember that it actually was GOP appointees like Judge Richard Posner of the 7th Circuit and Chief Judge John Walker of the 2nd Circuit (a cousin of President George W. Bush) who led the “Charge of Judicial Outrage” that eventually shut down the “assembly line removal system” set up by Ashcroft following his infamous “BIA Purge.”

PWS

04-20-18

MULTI-TALENTED TAL @ CNN TAKES US TO THE S. BORDER IN PICTURES & WORDS!

http://www.cnn.com/2018/04/19/politics/secretary-nielsen-dhs-border-fence-wall-immigration/index.html

Snapshots from the US-Mexico border

By Tal Kopan, CNN

Updated 6:55 PM ET, Thu April 19, 2018

Here are Tal’s pictures. For whatever technical reason, you’ll have to go to the original article at the link to get the captions that go with them!

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Wow! As those of you who read “Courtside” on a regular basis know, I’m a HUGE FAN of Tal’s timely, incisive, concise, and highly accessible reporting. I feature it on a regular basis. I’ve also seen her do a great job on TV and video. But, until now, I didn’t know about her skills as a photojournalist. Tal can do it all!

Also, as my colleague Judge and Super-Blogger Jeffrey Chase pointed out in one of his recent comments on this blog, pictures play an essential role in understanding the immigration saga in America.

Been there, done that in my career. Takes me back to the long past days of riding three wheelers, helicopters, Patrol Cars, looking through infrared night scopes, and even accompanying foot patrol during my days in the “Legacy INS General Counsel’s Office.” (Most often on the border south of San Diego.) We actually took the Trial Attorneys and some of the Assistant U.S. Attorneys prosecuting our cases with us to show them what it was really like at the “ground level.”

Actually doesn’t look all that much different decades later. What is painfully clear is that walls, fences, helicopters, detectors, unrealistically harsh and restrictive laws, and more detention centers (the “New American Gulag”) will never, ever “seal” our borders as some immigration hard-liners insist is possible.

At best, we can control, channel, and regulate the flow of migrants, but not halt it entirely. Human migration was taking place long before the U.S. became a nation, and I daresay that it will continue as long as there are humans left on earth. To think that walls, troops, concentration camps, harsh laws, and prisons are going to halt it completely is a mixture of arrogance and ignorance.

So, rather than pouring more money down the drain on the same “strategies” that have been failing for decades, a “smart” border control policy would involve:

More realistic and generous interpretations of our refugee and asylum laws that should include most of those fleeing for their lives from the Northern Triangle;
A much larger and more “market based” legal immigration system for permanent and temporary migrants that would meet the legitimate needs of U.S. employers and our economy while making it attractive for most prospective workers and employers to use the legal visa system rather than the “black market” of undocumented entry;
A larger and more robust refugee processing program for Northern Triangle refugees so most would be screened and documented outside the U.S.;
Cooperation with the UNHCR and other stable countries in the Western Hemisphere to distribute the flow of long-term and temporary refugees in an equitable manner that will help both the refugees and the receiving countries;
Working with and investing in Mexico and Northern Triangle countries to address and correct the conditions that create migration flows to the Southern Border.
Providing lawyers for asylum applicants who present themselves at the Southern Border so that their claims for protection (which actually go beyond asylum and include protection under the Convention Against Torture) can be fairly, correctly, and efficiently determined in an orderly manner in accordance with Due Process.

No, it’s unlikely to happen in my lifetime. But, I hope that future generations, including the members of the “New Due Process Army,” will find themselves in a position to abandon past mistakes, and develop the smart, wise, generous, humane, realistic, and effective immigration and refugee policies that we need to keep our “nation of immigrants” viable and vitalized for centuries to come. Until then, we’re probably going to have to watch folks repeat variations of the same painful mistakes over and over.

PWS

04-19-18

HERE’S THE FUTURE AS SESSIONS DUMBS DOWN, SPEEDS UP, SKEWS THE LAW, AND DE-PROFESSIONALIZES IMMIGRATION COURTS – 4th Circuit Slams BIA’s Sloppy Analytical Work, Refuses Deference, Reverses, & Remands — Ramirez v. Sessions

RAMIREZVSESSIONS,4THSLOPPY

Ramirez v. Sessions, 4th Cir., 04-17-18, Published

PANEL: GREGORY, Chief Judge, MOTZ and TRAXLER, Circuit Judges

OPINION BY: CHIEF JUDGE GREGORY

SUMMARY (From Chief Judge Gregory’s opinion):

Jose Ramirez seeks review of the decision of the Board of Immigration Appeals (BIA) finding him ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). Specifically, the question is whether Ramirez’s convictions for obstruction of justice pursuant to Va. Code Ann. § 18.2- 460(A) qualify as crimes involving moral turpitude (CIMTs). We hold that obstruction of justice under § 18.2-460(A) is not a CIMT because it may be committed without fraud, deception, or any other aggravating element that shocks the public conscience. We therefore grant Ramirez’s petition for review, vacate the BIA’s order of removal, and remand with directions for the Government to facilitate Ramirez’s return to the United States to participate in further proceedings.

KEY QUOTE:

In relation to those cases, the BIA’s one-member decision in this case attempts to significantly expand the definition of a CIMT by removing deceit, a critical indicator of moral turpitude, from the equation. Since this non-precedential decision departs from, rather than relies on, precedential BIA decisions, it is not eligible for Chevron review.

In the absence of Chevron deference, the weight given to a BIA decision “hinges on ‘the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.’” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) (quoting Martinez, 740 F.3d at 909–10); see Mead, 533 U.S. at 221. Here, the BIA provides only three sentences of analysis that are conclusory in nature and disregards the agency’s prior emphasis on fraud or deceit as a critical determinant without identifying an alternative aggravator. Consequently, the BIA decision is also undeserving of so-calledSkidmore respect because it lacks the power to persuade. See Mead, 533 U.S. at 221.

In sum, under Chevron, BIA decisions defining morally turpitudinous conduct are controlling if they are precedential and reasonable. However, the BIA’s interpretations of laws that it does not administer, such as the Virginia obstruction of justice statute, and its non-precedential decisions are only given weight to the extent that this Court finds the reasoning persuasive. Here, because we do not find persuasive the BIA’s abbreviated and non-precedential opinion, we do not accord it any deference.

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As we saw during the Bush Administration, “haste makes waste” procedures imposed by the DOJ at the Immigration Courts and the BIA are likely to cause a rebellion in the Article III Courts as they are presented with sloppy work including inadequate factual analyses, incorrect fact-findings, and abbreviated, deficient legal analyses. Factors such as pressure to render more “contemporaneous oral decisions” at the end of the hearing without reviewing the full record and testimony as well as single-judge BIA decisions or “summary affirmances” without opinion aggravate the problem.

As the quantity increases and quality decreases, the Article III Courts will lose confidence in the ImmigratIon Courts and begin returning large numbers of cases for “quality control redos” — something that adds to delay and increases backlogs as well as demoralizing Immigration Judges and frustrating respondents and counsel on both sides.

At some point, I foresee that attorneys for respondents should succeed in convincing the Article III Courts that the BIA no longer qualifies as an “expert tribunal” and that its decisions therefore should not receive so-called “Chevron deference.” Session’s use of his certification power to interfere in judicial decisions is also highly problematic.

Jeff Sessions is neither a judge nor by any stretch of the imagination an unbiased quasi-judicial decision maker. Indeed any Article III or Administrative Judge who made some of the untrue and pejorative statements about migrants, asylum seekers, private attorneys, and the law that Sessions has publicly made since becoming the Attorney General would certainly be required to disqualify himself or herself from a quasi-judicial role in any immigration adjudication.

There is no possibility of a fair, unbiased, due process oriented Immigration Court system under Jeff Sessions and the DOJ.

We have “seen this show before” under Ashcroft and the Bush Administration. Congress seriously disregards its responsibilities by standing by and watching disaster unfold again with hundreds of thousands of lives, and perhaps the stability of our entire Federal Judicial System, at stake.

PWS

04-19-18

“GANG OF 18” RETIRED IMMIGRATION JUDGES WEIGHS IN BEFORE SENATE JUDICIARY ON SESSIONS’S ABUSES OF DUE PROCESS & NEED FOR ARTICLE I COURT — NAIJ PRESIDENT JUDGE A. ASHLEY TABADDOR PRESENTS STUNNING EVIDENCE OF SESSIONS’S ALL OUT ATTACK ON JUDICIAL INDEPENDENCE, PROFESSONALISM, & FAIRNESS TO THOSE APPEARING BEFORE THESE COURTS!

With the help of the amazing Laura Lynch, Senior Policy Counsel at AILA (picture above), here’s the statement filed by our (ever-growing) “Gang of 18” Retired Judges:

Statement of Retired Immigration Judges and former members of the Board of Immigration Appeals

Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration

Hearing on “Strengthening and Reforming America’s Immigration Court System”

April 18, 2018

This statement for the record is submitted by retired immigration judges and former members of the Board of Immigration Appeals (BIA). Drawing upon our many years of combined service, we have an intimate knowledge of the operation of the immigration courts. Immigration judges and Board members are supposed to act as neutral arbiters; however, they are considered to be employees of the nation’s chief law enforcement agency, the U.S. Department of Justice (DOJ), rather than true judges. The DOJ is run by politically appointed law enforcement officials, making EOIR vulnerable to improper political pressures. In order to restore public confidence in the immigration court system and to insulate EOIR from political pressure, the immigration court system must be removed from the DOJ to an independent article I court structure that focuses on due process and efficient court administration.

For over a decade, the immigration courts have been severely underfunded when compared to the

budget increases that Congress has provided to immigration enforcement. EOIR has been unable to keep pace with the growing number of removal proceedings. The Trump administration has further contributed to this backlog, announcing broad new immigration enforcement priorities in January of 2017 that make almost everyone who is undocumented a priority for arrest. With the immigration court case backlog approaching 700,000 cases, we can all agree that our immigration court system is in crisis.

Instead of working to improve the immigration court system, DOJ and EOIR have issued policies that will threaten the integrity and independence of the immigration courts.

Imposing case completion quotas

On March 30th, the Director of EOIR announced that immigration judges will now be subject to case completion quotas. This unprecedented change will be effective October 1, 2018, and starting then, immigration judges will be subject to performance reviews (tied to job security and raises) that focus on meaningless numbers and disregard due process. An immigration judge should be evaluated based on the quality of her decisions, not the quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors. Poor decisions will also directly result in more appeals to the BIA and the Courts of Appeal, and more remands, causing more delays and running contrary to the goals of the Attorney General (AG).

Curbing use of docketing management tools such as use of continuances

On July 31, 2017, the Chief Immigration Judge issued a memorandum making it more difficult for judges to grant multiple continuances. This policy along with the imposition of case completion quotas heightens concerns that cases will be rushed through the immigration court system. Continuances are necessary in a

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variety of circumstances, such as when an individual is facing deportation in immigration court while awaiting a decision by the U.S. Citizenship Immigration Services (USCIS) on a pending application. Examples of such applications are “U” visas for crime victims, I-601A waivers for unlawful presence, I-130 visa petitions for family members of residents or citizens, or I-751 applications for certain individuals married to U.S. citizens. By law, immigration judges cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. But the result of those applications may be outcome determinative in removal proceedings. To date, case law supports judges granting continuances, when it makes sense, in circumstances like these. However, under the new quota system, a judge could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of concern about completion numbers and job retention. That is not justice; it seems more like an assembly line. Circuit courts will not excuse due process violations based on immigration judges having to meet arbitrary completion goals.

The AG is taking dramatic steps to rewrite immigration law.

The AG recently utilized his authority to certify two BIA decisions to himself for review to examine a judges’ authority to utilize docket management tools including use of continuances and administrative closure. As described in our amicus brief, immigration judges have inherent powers (including the power to control their own dockets, and to administratively close cases as a means of exercising such control) delegated to them by Congress, and not the Attorney General. Such authority of judges to control their dockets has been recognized by the Supreme Court and lower federal courts. Both the issuance of continuances and administrative closure are important docket management tools that allow judges to manage high caseloads. The certification of these cases signals the AG’s intent to massively curtail judicial independence. The solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.

Additional Resources from Retired Immigration Judges and Former BIA Members

● Jeffrey S. Chase, The Need For an Independent Immigration Court, Jeffrey S. Chase Opinions/Analysis on Immigration Law, (Aug. 17, 2017), https://www.jeffreyschase.com/blog/2017/8/17/the-need-for-an-independent-immigration-court.

● Jeffrey S. Chase, IJs, Tiered Review and Completion Quotas, Jeffrey S. Chase Opinions/Analysis on Immigration Law, (Nov. 9, 2017), https://www.jeffreyschase.com/blog/2017/11/9/ijs-tiered-review-and-completion-quotas.

● Bruce Einhorn, Jeff Sessions wants to bribe judges to do his bidding, Washington Post, (Apr. 5, 2018), https://www.washingtonpost.com/opinions/jeff-sessions-wants-to-bribe-judges-to-do-his-bidding/2018/04/05/fd4bdc48-390a-11e8-acd5-35eac230e514_story.html?utm_term=.758f0b92e2e6.

● John F. Gossart, Time to fix our immigration courts, The Hill, (Feb. 26, 2014), http://thehill.com/blogs/congress-blog/judicial/199224-time-to-fix-our-immigration-courts.

● Lory Rosenberg, Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), ILW, (Mar. 6, 2018),http://blogs.ilw.com/entry.php?10427-Much-Sound-and-Fury-Matter-of-E-F-H-L-27-I-amp-N-Dec-226-(A-G-2018)

● Paul Wickham Schmidt, Retired Immigration Judge and Former Chairman of the BIA Responds to Implementation of Production Quotas, Immigration Courtside, (Apr. 4, 2018), http://www.aila.org/infonet/retired-immigration-judge-and-former-chairman

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● Paul Wickham Schmidt, We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?, Immigration Courtside, http://immigrationcourtside.com/we-need-an-article-i-united-states-immigration-court-now/.

● Robert Vinikoor, Take it From a Former Immigration Judge: Quotas Are a Bad Idea, Minsky, McCormick & Hallagan, P.C. Blog, (Apr. 12, 2018), https://www.mmhpc.com/2018/04/take-it-from-a-former-judge-quotas-for-immigration-judges-are-a-bad-idea/.

We appreciate the opportunity to provide this statement for the record and look forward to engaging as Congress considers reforming the immigration court system.

Contact with questions or concerns: Jeffrey Chase, jeffchase99@gmail.com.

Sincerely,

Honorable Steven R. Abrams

Honorable Patricia L. Buchanan

Honorable Sarah M. Burr

Honorable Jeffrey S. Chase

Honorable George T. Chew

Honorable Bruce J. Einhorn

Honorable Cecelia M. Espenoza

Honorable Noel Ferris

Honorable John F. Gossart, Jr.

Honorable William P. Joyce

Honorable Carol King

Honorable Elizabeth A. Lamb

Honorable Margaret McManus

Honorable Lory D. Rosenberg

Honorable Susan Roy

Honorable William Van Wyke

Honorable Paul W. Schmidt

Honorable Polly A. Webber

List of Retired Immigration Judges and Former BIA Members

The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.

The Honorable Patricia L. Buchanan served as an Immigration Judge in New York City from June 2015 to July 2017, having responsibility for a detained docket for more than a year and a half. From December 2003 to October 2014, she served in various roles within the Immigration Unit of the Civil Division of the United States Attorney’s Office for the Southern District of New York, including

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Assistant United States Attorney and Chief of the Immigration Unit. From 2001 to 2003 she served as a trial attorney in the Department of Justice, Civil Division, Office of Immigration Litigation in Washington, DC. From 1996 to 2001, she served as a trial attorney on a detained docket with the former Immigration and Naturalization Service in the New York District. During a significant period of her time as a federal court litigator, she authored a monograph analyzing hundreds of precedent decisions on process and procedural issues (including rights and limitations to continuances) in removal proceedings and presented at numerous DOJ and DHS trainings on due process issues. Prior to joining the Department of Justice, she worked as a Temporary and Volunteer Attorney at Westchester/Putnam Legal Services from 1995 to 1996 and worked at Mid-Hudson Legal Services from 1991 to 1995.

The Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

Honorable George T. Chew

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014

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and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Elizabeth A. Lamb was appointed to the immigration bench in 1992. Previously she served as EEO counsel to the St. Regis paper company and was of counsel to Catholic Charities in New York City for immigration matters. Before law school she served as press secretary for then Congressman Hugh L. Carey and later for commissioner Bess Myerson at the New York City Department of Consumer

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Affairs. Her first job after graduation from law school was for the New York State Department of Criminal Justice Services. She retired on January 6, 2018.

The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.

The Honorable William Van Wyke

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant

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Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.

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It was a great honor and privilege to be part of this distinguished group. To our other retired colleagues out there, we’re always more than happy to have join the group an continue the fight to “guarantee fairness and due process to all.” (Actually, the long-forgotten mission of EOIR). It also provides a great opportunity to chat online with each other and catch up on some of the amazing “post-bench” achievements of our colleagues.

And, once again, that’s to Laura Lynch without whose support, skill, and expertise, this effort could never have happened.

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Here’s the detailed and deeply disturbing statement of Judge A. Ashley Tabaddor, of the United States Immigration Court in Los Angeles, CA, in her capacity as President of the National Association of Immigration Judges (“NAIJ”). It’s impossible to read Judge Tabaddor’s heartfelt words without being totally outraged by the all-out assault on fairness to, and the human dignity of, those seeking justice from the Immigration Courts and those trying to help them present their cases; the intentional demeaning and de-professionalization of U.S. Immigration Judges struggling to provide impartial justice in a system intentionally rigged against it; the patently dishonest attempt to shift blame for the Immigration Court’s current dysfunction from the politicos who caused it to their victims; and the all out disrespect for truth, the law, ethics, our Constitution, and basic human rights and decency shown by Jeff Sessions.

Statement of

Judge A. Ashley Tabaddor, President

National Association of Immigration Judges

April 18, 2018

Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee

Hearing on “Strengthening and Reforming America’s Immigration Court System”

INTRODUCTION

I am Ashley Tabaddor, President of the National Association of Immigration Judges (NAIJ), and an Immigration Judge.1 For the past twelve years I have served in the Los Angeles Immigration Court. My current pending case load is approximately 2000 cases. Chairman Cornyn, Ranking Member Durbin and members of the Subcommittee, thank you for the opportunity to testify before the Subcommittee.

1 I am speaking in my capacity as President of the NAIJ and not as employee or representative of the U.S. Department of Justice, Executive Office for Immigration Review (EOIR). 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 my personal opinions, which were formed after extensive consultation with the membership of NAIJ.

I am pleased to represent the NAIJ, a non-partisan, non-profit, voluntary association of United States Immigration Judges. Since 1979, the NAIJ has been the recognized representative of Immigration Judges for collective bargaining purposes. Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security (DHS) are conducted. We work to improve our court system through: educating the public, legal community and media; testimony at congressional oversight hearings; and advocating for the integrity and independence of the Immigration Courts and Immigration Court reform. We also seek to improve the Court system and protect the interests of our members, collectively and individually, through dynamic liaison activities with management, formal and informal grievances, and collective bargaining. In addition, we represent Immigration Judges in disciplinary proceedings, seeking to protect judges against 2

unwarranted discipline and to assure that when discipline must be imposed it is imposed in a manner that is fair and serves the public interest.

I am here today to discuss urgently needed Immigration Court Reform and the unprecedented challenges facing the Immigration Courts and Immigration Judges. Immigration Courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs. I will be focusing my discussion on the inherent structural defect of the Immigration Court system, the Department of Justice’s (DOJ) misguided “solutions” to the current court backlog, and proposed solutions to the challenges facing the court, including the only enduring solution: restructuring of the Immigration Court as an independent Article I Court.

THE FUNDAMENTAL FLAW

⦁ The Placement of a Neutral Court in a Law Enforcement Agency

The inherent conflict present in pairing the law enforcement mission of the DOJ with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system and may well lead to the virtual implosion of this vital Court.

Immigration Judges make the life-changing decisions on whether or not non-citizens are allowed to remain in the United States. Presently, approximately 330 Immigration Judges in the United States are responsible for adjudicating almost 700,000 cases. The work is hard. The law is complicated; the labyrinth of rules and regulations require expertise in an arcane field of law. The stories people share in court are frequently traumatic and emotions are high because the stakes are so dire. The proceedings are considered “civil” cases, in contrast to “criminal” cases. Thus, people are not provided attorneys and must either pay for one, find a volunteer, or represent themselves. Last year, approximately 40 percent of the individuals who appeared in our courtrooms represented themselves, a figure that rises to 85 percent when only detained cases are considered. Further complicating the situation, only 15 percent of immigration cases are conducted in the English language. Finally, our courtrooms and systems lack modern technology and unlike federal courts, the Immigration Courts still rely on paper records.

But here’s the core of the problem: Immigration Judges wear two hats. On the one hand, we are statutorily recognized as “Immigration Judges,” wear judicial robes, and are charged with conducting ourselves consistently with canons of judicial ethics and conduct, in order to ensure our role as impartial decision-makers in the cases over which we preside. In every sense of the word, on a daily basis, when presiding over our case in our courts, we are judges: we rule on the admissibility of evidence and legal objections, make factual findings and conclusions of law, and 3

decide the fate of thousands of respondents each year. Last year, our decisions were final and unreviewed in 91% of the cases we decided.

In addition, and in contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.

At first glance, this may not seem too damaging; after all, our government structure is resilient and must respond to changes demanded by the public. However, this organizational structure is the fundamental root cause of the conflicts and challenges that have plagued the Immigration Court system since its inception and now threatens to cripple it entirely because the very mission of a neutral court is to maintain balance despite political pressures.

⦁ Politicization of the Immigration Courts

Examples of where this conflict of interest has led to the infringement on the independence of the Immigration Court are numerous throughout the past decades and under administrations of both political parties. It is no secret that the DHS, whose attorneys appear before the Court, regularly engages in ex-parte communication with the DOJ. On the macro level, these communications have directly led to the use of the Immigration Court system as a political tool in furtherance of law enforcement policies.

One common use of the Courts as a political tool has been the incessant docket shuffling in furtherance of various law enforcement “priorities.” For example, during the last administration, the mandated “surge” dockets prioritized recent arrivals, such as unaccompanied minors and adults with children, over pending cases before the Court. Similarly, this administration uprooted approximately one third of all Immigration Judges in the 2017 calendar year to assign them temporarily to “border courts” to create the “optics” of a full commitment to law enforcement measures, even at the expense of delaying hundreds of cases at each home. The DOJ claimed that the border surge resulted in an additional completion of 2700 cases. This number is misleading as it does not account for the fact that detained cases at the border are always completed in higher numbers than non-detained cases over a given period. Thus, the alleged 2700 additional completions was a comparison of apples to oranges, equating proceedings completed for those with limited available relief to those whose cases by nature are more complicated and time consuming as they involve a greater percentage of applications for relief. Moreover, many questioned the veracity of the Agency’s reported numbers because so many judges who went to the border courts had no work to do and faced malfunctioning equipment, often with no internet connection, or files. Meanwhile the dockets of these Immigration Judges at their home courts were reset to several years later, not to mention the unnecessary additional 4

financial costs of these details. Such docket shuffling tactics have led to further increases in delays and to the backlog of cases before the Immigration Court system as a whole.

On the micro level, individual judges have been tasked with responding to complaints voiced by DHS to the Executive Office for Immigration Review (EOIR) management about how a particular pending case or cases are being handled, in disciplinary proceedings without the knowledge of the opposing party.

⦁ DOJ Priorities

One of the most egregious and long-standing examples of the structural flaw of the Courts’ placement in the DOJ is that Immigration Judges have never been able to exercise the congressionally mandated contempt authority statutorily authorized by Congress in 1996. This is because the DOJ has never issued implementing regulations in an effort to protect DHS attorneys (who it considers to be fellow federal law enforcement employees). However, as Congress recognized in passing contempt authority, misconduct by both DHS and private attorneys has long been one of the great hindrances to adjudicating cases efficiently and fairly. For example, it is not uncommon for cases to be continued due to private counsel’s failure to appear or be prepared for a hearing, or DHS’ failure to follow the Court’s orders, such as to conduct pre-trial conferences to narrow issues or file timely documents and briefs. Just a couple of months ago, when I confronted an attorney for his failure to appear at a previous hearing, he candidly stated that he had a conflict with a state court hearing, and fearing the state court judge’s sanction authority, chose to appear at that hearing over the immigration hearing in my court. Similarly, when I asked a DHS attorney why she had failed to engage in the Court mandated pre-trial conference or file the government’s position brief in advance of the hearing, she defiantly responded that she felt that she had too many other work obligations to prioritize the Court’s order. These examples represent just a small fraction of the problems faced by Immigration Courts, due to the failure of the DOJ, in over 20 years, to implement the Congress approved even-handed contempt authority..

Similarly, Immigration Judges are subject to regulations that provide a one-sided veto of a judge’s decision by DHS. Title 8 C.F.R. section 1003.19 provides that the DHS, who appears as a party before the Immigration Court, can effectively vacate an Immigration Judge’s bond decision through automatic stay powers that override an Immigration Judge’s decision to set or reduce bond for certain individuals.

In a separate failure to safeguard the Immigration Courts, the DOJ has consistently proven to be ineffective in the timely appointment of judges. Historically, this was due, in part, to the Court’s placement in a law enforcement agency where for years, the Court was treated as an afterthought in DOJ, receiving scraps instead of full allotments of needed resources. However, even after the 9/11 tragedy, the DOJ has still visibly struggled with filing Immigration Judge positions, many 5

of which have taken almost two years to fill. Hiring practices by the Agency have a demonstrated history of politically motivated appointment practices, as evidenced by the Office of the Inspector General and Office of Professional Responsibility reports exposing political concerns and nepotism that have crept into the hiring process.2 And now, the DOJ surreptitiously has made substantive changes to the qualification requirements for judges, over-emphasizing litigation experience to the exclusion of other relevant immigration law experience. This has created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds, such as academics and United States Citizenship and Immigration Service attorneys, who are perceived as not sufficiently law enforcement oriented.

2 An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, DOJ OIG and OPR, July 28, 2008; Report Regarding Investigation of Improper Hiring Practices by Senior Officials of the Executive Office for Immigration Review, DOJ OIG, November 2014.

Another example of the structural problem of placing a Court in the DOJ has been the application of federal employee performance evaluations on Immigration Judges. Many courts have performance reviews for Judges, but the overwhelming majority of these reviews follow a judicial model – a transparent, public process where performance is evaluated by input from the stakeholders (attorneys, witnesses, and court staff) based on quality and temperament, not quantity, and is not tied to discipline. However, despite strenuous objections and warnings of conflicts of interest from the NAIJ, the EOIR has chosen to use a traditional federal employee performance review system. These evaluations are not public and are conducted by a management official who is often not located in the same court and does not consider input from the public, and can result in career-ending discipline to a Judge who makes a good faith legal decision that his or her supervisor considers to be insubordinate. This is the flawed current performance evaluation model for Immigration Judges, without the added, soon to be implemented, disastrous production quotas and time-based deadlines that were recently announced by the Department, which I will discuss shortly.

⦁ EOIR’s Decision to Halt the LOP Program

Another stark example of the mismanagement of the Immigration Court due to its placement in an agency with a competing mission is the recently announced EOIR decision to halt the Legal Orientation Program (LOP), despite its proven track record of increased efficiency and enhanced fundamental fairness for pro se respondents in detention facilities. This population of respondents, who are being held in custody, are frequently in extremely remote locations, and often lack the resources or the means to secure counsel or even to properly represent themselves due to language access issues. The lack of assistance in these areas delays their proceedings, often needlessly for those who seek merely a brief legal consultation before making an informed and timely decision to accept an order of removal. Thus in cases where the respondents lack 6

viable relief, the LOP can be instrumental in helping respondents make an informed decision to accept a final order of removal, dramatically minimizing costly detention time and expense.

Competent counsel, when available, can assist the Court in efficiently adjudicating cases before it. In the absence of competent counsel, the LOP provides the necessary bridge to ensure a minimum standard of due process is quickly and efficiently provided. The LOP helps respondents better understand the nature of these proceedings and the steps they need to take to present their cases when in court, understand and complete their applications for relief, and obtain evidence in their case. Without such assistance, judges are required by regulation to spend time and resources explaining these proceedings, soliciting the necessary information for the case, and providing respondents the opportunity to obtain evidence once they become aware it is needed.

Ironically, even the DOJ website has publicly supported the LOP program, citing the positive effects on the Immigration Court process, and the fact that cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention. However, once again without consultation with NAIJ, EOIR has made a decision seemingly ignoring the ramifications of how this will likely play out in the remote court locations, further undermining the structural integrity and the smooth functioning of the Court.

⦁ EOIR’s Recent Severe Restriction of Immigration Judge Speaking Engagements

In September 2017, the Agency issued a new memorandum almost eliminating personal capacity speaking engagements for Immigration Judges on any matters relating to the Court or immigration law.

The primary role of a court is to be a neutral and transparent arbiter, and this perception is reinforced when the court is accessible to the community it serves. Public access and understanding of what courts do is essential to build the understanding and trust needed for the judicial system to function smoothly. Judges are the face of that system and serve as role models who should be encouraged to engage with the community to inspire, educate and support civic engagements. Many of our Immigration Judges are active members of the legal and civil community who are sought out to speak in schools, universities, and bar associations as role models and mentors. They help the community better understand our Immigration Courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public. In the past, the DOJ had permitted Immigration Judges to publicly speak in their personal capacity on issues related to the Court and their Immigration Judge roles, (with the use of their title and a disclaimer that they are not speaking on behalf of the Agency).

This new policy brought a 180-degree reversal on many existing programs that included participation of Immigration Judges, from the Model Hearing Program, the Stakeholder 7

Meetings, to appearing as guest lecturer at one’s Alma Mater, etc. Judges who have been engaged in the community are now being deprived of the opportunity to fulfil those roles. This ill-advised move is yet another example of the misguided instincts of a law enforcement agency, which endeavors to keep its operations opaque, leading to an absolutely wrong result for a court system where transparency is essential to build public trust and confidence. This is yet another example which underscores the structural flaw that plagues our courts.

MISGUIDED SOLUTIONS TO THE BACKLOG

⦁ IJ Production Quotas and Deadlines

Based on a completely unsupported assertion that this action will help solve the Court’s backlog, DOJ has taken an unprecedented move that violates every tenet of an independent court and judges, and has announced that it will subject all Immigration Judges to individual production quotas and time-based deadlines as a basis for their performance reviews. A negative performance review due to failure to meet quotas and deadlines may result in termination of employment. This is despite the legal duty of Immigration Judges, codified by regulation, to exercise independent judgement and discretion in each of the matters before them. The havoc this decision will wreak cannot be understated or underestimated.

To fully understand the import of this approach, one must make the critical distinction between court-wide “case completion goals” or “benchmarks” versus individual production quotas and time-based deadlines for judges. The Immigration Court system has had “case completion goals” of some sort for over two decades. These are tools used as resource allocation metrics to help assess resource needs and distribute them nationally so that case backlogs are within acceptable limits and relatively uniform across the country. In fact, when individual performance evaluations were first applied to Immigration Judges over a decade ago, the EOIR agreed to a provision that prevented any rating of the judges based on number or time based production standards, in recognition of the fact that quotas or deadlines placed on an individual Immigration Judge are inconsistent with his or her independent judicial role. The public comments at that time made clear that otherwise quantitative priorities or time frames could abrogate the party’s right to a full and fair hearing. At that time, the DOJ assured the public that case completion goals would not be used this way and that judges would maintain the discretion to set hearing calendars and prioritize cases in order to assure they had the time needed to complete the case.

This tool of court-based evaluation metrics stands in stark contrast to the individual production quotas and completion deadlines which are now being proposed by EOIR. Introduction of individual Immigration Judge production quotas is tantamount to transforming a judge into an interested party in the proceedings. It is difficult to imagine a more profound financial interest than one’s very livelihood being at stake with each and every ruling on a continuance or need for additional witness testimony which would delay a completion. Yet production quotas and time- based deadlines violate a fundamental canon of judicial ethics which requires a judge to recuse 8

herself in any matter in which she has a financial interest that could be affected substantially by the outcome of the proceeding.

This basic principle is so widely accepted that the NAIJ is not aware of a single state or federal court across the country that imposes the type of production quotas and deadlines on judges like those that EOIR has now announced. A numeric quota or time-based deadline pits the judge’s personal livelihood against the interests both the DHS and the respondent. Every decision will be tainted with the suspicion of either an actual or subconscious consideration by the judge of the impact his or her decision would have regarding whether or not he or she is able to fulfill a personal quota or a deadline.

In addition to putting the judges in the position of violating a judicial ethical canon, such quotas pits their personal interest against due process considerations. Recently, the Seventh Circuit Court of Appeals noted in a case addressing imposition of case completion goals – not quotas – that there may be situations that such goals, even though they are not tied to a judge’s performance evaluation, could so undermine decisional independence as to create a serious issue of due process.

If allowed to be implemented, these measures will take the Immigration Courts out of the American judicial model and place it squarely within the model used by autocratic and dictatorial countries, such as China, which began instituting pilot quota programs for their judges in 2016.3 NAIJ does not believe that such courts should serve as a good blueprint for EOIR or for any court in a democratic society.

3See www.chinadaily.com.cn/china/2017-02/27/content_28361584_6.htm.

⦁ Unintended Consequences of Misguided Solutions

The DOJ has touted the imposition of a quota system on judges as a solution to the crushing backlogs facing the Immigration Courts. It is critical to recognize that the current backlog of cases is not due to lack of productivity of Immigration Judges; it is due, in part, to the Department’s consistent failure, spanning more than a decade to hire enough judges to keep up with the caseload. In 2006, after a comprehensive review of the Immigration Courts by Attorney General Gonzales, it was determined that a judge corps of 230 Immigration Judges was inadequate for the caseload at that time (approximately 168,853 pending cases) and should be increased to 270. Despite this finding, there were less than 235 active field Immigration Judges at the beginning of FY 2015. Even with a recent renewed emphasis on hiring, the number of Immigration Judges nationwide as of April 2018 stood at approximately 330 sitting judges, well below authorized hiring levels of 384. From 2006 to 2018, while the caseload has quadrupled (from 168,853 to 684,583 as of March 1, 2018), the number of Immigration Judges has not even doubled! Additionally, up to 40 percent of the Immigration Judge Corps are retirement eligible 9

and are exercising that right at a much higher rate than previously seen. Thus, hiring by the Agency has also failed to keep pace with the loss of judges by retirement or attrition.

Moreover, the 2017 GAO report on Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Changes (GAO-17-438) shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances which occurred primarily due to politically motivated changing court priorities, forced Judges to reset cases that were near completion in order to address the cases which were the priority “du jour,” and have had a tremendous deleterious effect on case completion rates. The same report shows that continuances attributed to the needs of the judge was responsible for only 11% of the continuances granted, clearly debunking the myth that Immigration Judges are significantly contributing to the backlog.

The cause of the increasing backlog is obvious: the ever-ballooning budget for immigration law enforcement which has not been accompanied by concomitant resources to the Immigration Courts. In the period that the budget for DHS saw an increase of 300 percent, the Immigration Court’s budget was only modestly increased by 70 percent. This is tantamount to increasing the lanes in a highway from one to three but failing to increase the number of exit ramps for everyone, then claiming that the exit ramps are the cause of the increased congestion and traffic. Simple common sense tells us otherwise.

Finally, the imposition of numeric quotas and time-based deadlines will have the unintended consequence of further adding to the backlog. A similar measure proposing to “streamline” the adjudications of immigration removal cases was introduced post 9/11 during the Attorney General John Ashcroft era. In the face of a ballooning backlog (which pales in comparison to the current one), the DOJ implemented streamlining measures at the Board of Immigration Appeals that significantly increased the number of case completions at the expense of reasoned decisions. This action caused a flood of appeals to the circuit courts, to a five-fold increase, from 1764 filings in 2002, when the program was announced, to 8446 in 2003 and onwards. Many of these cases were ultimately reversed or remanded all the way back to the trial court level, due to actual or perceived insufficiencies of the process or paucity of reasoning in the decisions. The “streamlining” program was quietly put to rest many years later when its failure was no longer deniable. If Immigration Judges are subjected to production quotas and time-based deadlines, the result will be the same: appeals will abound, repeating a history which was proven to be disastrous. Rather than making the overall process more efficient, this change will encourage individual and class action litigation, creating even longer adjudication times and greater backlogs. 10

Another unintended consequence if these quotas and deadlines are applied, is that judicial time and energy will be diverted to documenting performance rather than deciding cases. Immigration Judges will become bean-counting employees instead of fair and impartial judges, and their supervisors will become traffic cops monitoring whether the cases are completed at the correct speed. What a waste of skilled professional expertise! Judges’ job security will be based on whether or not they meet these unrealistic quotas and their decisions will be subjected to increased appeals based on suspicion regarding whether any actions they take, such as denying a continuance or excluding a witness, are legally sound or motivated to meet a quota. It is difficult to find a shred of practical justification in this approach.

SHORT TERM SOLUTIONS

⦁ Clarify the Definition of the Immigration Judge Position

The most pressing matter threatening the integrity and efficiency of the Immigration Court system which can quickly and easily be remedied is the DOJ’s decision to impose Immigration Judge production quotas and deadlines. If permitted to be implemented, as planned, on October 1, 2018, the Immigration Courts as we know them will cease to exist. Immigration Judges will no longer be able to serve as impartial and independent decision-makers over the life-altering cases before them.

To preserve the judicial independence of Immigration Courts Congress can:

(1) Amend the Immigration and Nationality Act to clarify the definition of an Immigration Judge as follows:

“The term “immigration judge” means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title, whose position shall be deemed to be judicial in nature and whose actions shall be reviewed only under rules and standards pertaining to judicial conduct.”

This definitional change was offered by Senators Gardner and Bennet as part of their bipartisan immigration amendment earlier this year. Senator Hirono’s recent immigration amendment also included this language;

(2) Alternatively, Congress can add Immigration Judges to the short list of federal government employees whose positions are exempt from performance evaluation due to the nature of their duties, as are Administrative Law Judges (ALJs). 5 U.S.C. § 4301(2)(D). Recognizing that federal employee performance evaluations are antithetical to judicial independence, Congress exempted ALJs from performance appraisals and ratings by including them in the list of 11

occupations exempt from performance reviews. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) to add a new paragraph (I) including Immigration Judges as an additional category in the list of exempt employees.

Extension of 5 U.S.C. § 4301(2)(D) to Immigration Judges is not an indication that NAIJ is opposed to performance evaluation of Immigration Judges. To the contrary, NAIJ fully supports performance evaluations that are based on judicial models, such as those recommended by the American Bar Association. These models stress judicial improvement as the primary goal, emphasizes process over outcomes, and places a high priority on maintaining judicial integrity and independence. Moreover, to the extent that any numeric metrics are included in such models, they would not and “should not be used for judicial discipline.”4 We encourage EOIR to abandon its myopic focus on numerical metrics and instead institute a judicial performance evaluation based on these models.

4https://www.americanbar.org/content/dam/aba/publications/judicial_division/aba_blackletterguidelines_jpe.authcheckdam.pdf.

Continued enhancement of resources will be an exercise in futility and will fail to reduce the crippling backlogs plaguing the Immigration Courts if the integrity and independence of the Immigration Judge decision-making authority is not protected. Without much needed protection, the inevitable increase in individual and class action litigation and the circuit court backlash (similar to the “streamlining” era) is virtually certain to ensue.

⦁ Additional Resources

NAIJ appreciates the additional judges and staff that Congress has provided and the recent allocation of an additional 100 Immigration Judge teams in the appropriations bill. This is a welcome move in the right direction. However we would be remiss if we failed to point out that even if all the appropriated judge positions are filled promptly (which is a task the DOJ has been unable to accomplish for decades), the pressing crisis of the backlog will not be resolved. The backlog of pending cases has almost quadrupled in the last twelve years. Yet, the number of judges has not even doubled (even with the inclusion of the recently allocated 100 judges). Thus, it is not unreasonable to conclude that with the continued flood of cases being filed with the Court due to increased law enforcement action, the need to match that rate of increased resources with the Courts is a necessary condition of addressing the challenge of the backlog.

Moreover, the Courts are woefully behind the times in technology. The Courts’ computer systems and printers are outdated. The software programs are several generations behind and lag in processing speed. Also, we depend on digital audio recording to capture our hearing audio in lieu of in-person transcribers, and in many locations we function with heavy reliance on tele video equipment. Yet these technologies are no longer state of the art, causing not infrequent 12

delay and malfunctions. We have yet to arrive in the 21st century in technology at EOIR. Unlike other courts who have embraced electronic filings and records, we are still under the weight of hardcopy files, some of which can weigh up to 10 to 15 pounds per case. Increasingly adequate space for Court locations has become an issue, leaving many Courts bursting at the seams due to thousands of files, with staff having to share cubicles, and cramped, unhealthy and unsafe spaces that were never intended to be used as work space.

ENDURING SOLUTION

⦁ An Article I Immigration Court is the Clear Consensus Solution that is Urgently Needed

While it cannot be denied that the short term solutions cited above are needed immediately, Band-Aid solutions alone cannot solve the persistent problems facing our Immigration Courts. The problems compromising the integrity and proper administration of a court highlighted above underscore the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. The DOJ has been provided years of opportunity to forestall the impending implosion at the Immigration Courts. Instead of finding long term solutions to our problems, DOJ’s political priorities and law enforcement instincts have led our Courts to the brink of collapse. With the latest misguided initiative to impose Immigration Judge production quotas and deadlines, DOJ has put accelerant on the fire; if these changes are implemented the integrity of the Immigration Court will be all but destroyed and paralyzing dysfunction will ensue.

Since the 1981 Select Commission on Immigration and Refugee Policy, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced. Such a structure solves a myriad of problems which now plague our Court: removing a politically accountable Cabinet level policy maker from the helm; separating the decision makers from the parties who appear before them; protecting judges from the cronyism of a too close association with DHS; assuring a transparent funding stream instead of items buried in the budget of a larger Agency with competing needs; and eliminating top-heavy Agency bureaucracy. In the last 35 years, a strong consensus has formed supporting this structural change. For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now most immigration judges and attorneys agree the long-term solution to the problem is to restructure the immigration court system. Examples of those in support include the American Bar Association, the Federal Bar Association, the National Association of Women Judges, and the American Immigration Lawyers Association. These are the recognized legal experts and representatives of the public who appear before us. Their voices deserve to be heeded.

To that end, the Federal Bar Association has prepared proposed legislation setting forth the blueprint for the creation of an “Article 1” or independent Immigration Court. This proposal will remove the Immigration Court from the purview of the DOJ to form an independent Court. The legislation would establish a “United States Immigration Court” with responsibility for functions 13

of an adjudicative nature that are currently being performed by the judges and Board members in the Executive Office for Immigration Review. The new court would consist of appellate and trial level judges. The appellate judges would be appointed by the President and confirmed by the Senate, and the immigration trial judges would be appointed by the appellate judges. The substantive law of immigration and corresponding enforcement and policy-determining responsibilities of the DHS and DOJ under the INA would be unchanged. Final decisions of the new court would be subject to review in the circuit court of appeals similar to the current model. However, in the new court, the Department of Homeland Security would be able to seek review of the court’s decisions to the same extent as the individuals against whom charges were filed. Practically, the transition to the new “United States Immigration Court” would involve minimal transitional or financial challenges as much of the physical structures and personnel would already be in place.

NAIJ has endorsed this bill5 and urges you to take immediate steps to protect judicial independence and efficient resolution of cases at the Immigration Courts by enacting legislation as described above. Failure to act will result in irreparable harm to the immigration law community as we know it. Action is needed now!

5 https://www.naij-usa.org/images/uploads/publications/NAIJ_endorses_FBA_Article_I_proposal_3-15-18.pdf

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Here are links to the other statements submitted to the Senate Judiciary Committee, all well worth a read:

Other Statements:

Law Professor Statement: Immigration Law Professors Issue Statement on Strengthening and Reforming America’s Immigration Court System
AILA National Statement: AILA Statement on Strengthening and Reforming America’s Immigration Court System Hearing

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It’s no secret that White Nationalist and “21st Century Jim Crow” Sessions was totally unqualified to be the Attorney General of the United States. Yet, the GOP Senate put in him that position knowing full his extremist views, lack of executive qualifications, and history of racially insensitive words and actions.

The Obama Administration’s indolent, sometimes disingenuous, and often highly politicized mis-handling of the Immigration Court System also contributed to the current sad state of justice for immigrants. To paraphrase the words of one of my colleagues, the Obama Administration’s poor handling of the Immigration Courts didn’t cause Jeff Sessions and his toxic policies, but it certainly did nothing to dissuade or prevent them and in many ways set the stage for the current due process disaster.

Congress also stood by and watched this unfolding disaster in a court system they created without providing any effective assistance (except for too few additional positions too late to help) and in many cases making things worse by ramping up enforcement without thinking about the consequences for the judicial system.

We need to elect legislators pledged to due process, fairness to all including immigrants, strong effective oversight of the DOJ, investigation of Sessions’s blatant attempt to “deconstruct” the U.S. justice system (particularly as it applies to immigrants and vulnerable minorities) which should eventually lead to his removal from office, and the transfer of the U.S. Immigration Courts out of the DOJ into an independent structure where they never again can be compromised by the likes of Jeff Sessions.

Join the New Due Process Army and fight to give real meaning to the Constitutional guarantee of Due Process for all in America.

PWS

04-19-18

SESSIONS’S ATTACK ON DUE PROCESS IN THE CRUMBLING U.S. IMMIGRATON COURT SYSTEM FRONT PAGE NEWS IN LA TIMES — Joseph Tanfani’s Article Makes Page One Headlines As Session’s Outrageous Actions Deepen, Aggravate Court Crisis!

I had already posted the online version of Joseph’s article, which quoted me, among other sources: http://immigrationcourtside.com/2018/04/07/joseph-tanfani-la-times-more-critical-reaction-to-sessionss-immigration-court-quotas-if-youve-got-a-system-that-is-producing-defective-cars-making-the-system-run-fas/

Today, it’s on the front page of the “hard copy” edition of the LA Times where it belongs.

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=99ce5eb1-0b1e-4e1a-9afd-5bf75d1

Thanks to great reporting from Joseph and others like him, Session’s outrageous war on the rights of the most vulnerable among us and his evil plan to destroy Due Process in the United States Immigration Courts is getting the nationwide attention it deserves. Whether the Immigration Courts will be saved and Sessions held accountable for his abusive behavior and mocking of our Constitution and the rule of law remains to be seen. But, it’s critically important to publicly record his invidious motivations and the corrupt misuse of Government authority that’s really going on here.

PWS

04-18-18

TAL @ CNN: Documents Obtained Under FOIA Lend Support To Widely Held View That Trump Administration’s Decision To End Haitian TPS Driven By Bias Not Facts!

DHS decision to end Haitian immigrant protections questioned

By: Tal Kopan, CNN

Newly released internal documents are raising questions about the Trump administration’s decision to end protections for tens of thousands of Haitian immigrants — and whether the argument that the protections were no longer merited was valid.

Under President Donald Trump, the Department of Homeland Security has been aggressive in ending a number of temporary protected status designations that have been on the books, in some cases, for decades.

Roughly 300,000 people who have lived in the US with legal permission, most of whom have been here for upward of 15-20 years, could have their status pulled in the coming months as the protections expire. In the case of Haiti, nearly 60,000 immigrants are set to see their status expire next year.

The justification from the administration for ending the protections has been that by law, when the conditions from the original disaster that triggered the protections have improved, they must expire. DHS has been clear that it does not believe it can look at the totality of conditions in the country to factor in its decision making.

But the documents released Tuesday as part of a Freedom of Information Act lawsuit raise questions about whether DHS was accurately interpreting information in drawing those conclusions.

The documents suggest DHS contradicted its own staff assessment of Haiti when it opted to end TPS for the country, which was put in place after the devastating 2010 earthquake. The documents also include email correspondence showing Haiti’s deep concern about ending TPS for the country.

While many of the documents are redacted, the release includes a report prepared by staff about the conditions in Haiti, which was included as part of a recommendation by the director of US Citizenship and Immigration Services.

More: http://www.cnn.com/2018/04/17/politics/haiti-tps-documents-questions/index.html

And SCOTUS coverage here:http://www.cnn.com/2018/04/17/politics/supreme-court-federal-law-deportation-immigrants/index.html

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It’s no surprise that Trump Administration immigration policies are based on racial animus and White Nationalism and that they often fly in the face of known conditions in foreign countries. That’s what bias and congenital dishonesty are all about.

Haitian immigrants, who have made great contributions to the United States, have been singled out for poor treatment by past Administrations of both parties. But, they have persevered in the face of adversity both at home and abroad.

Not sure what the remedy would be here even if bias could be proved. The legislation creating TPS status makes country designations or non-designations matters committed to Executive discretion without any judicial review.

So the remedy is probably the same as for most of the Trump Administration’s unlawful and immoral acts: removal of the Administration and its GOP enablers at the ballot box. Even if that eventually happens, it’s not clear whether it will be soon enough to save Haitians in TPS status.

On the other hand, since most of the Haitians in TPS status would be entitled to full hearings before the Immigration Courts, they probably won’t be ordered out of the country any time soon. But, in some cases they could lose their authorization to work.

PWS

04-18-18

HELL ON ICE IN PA – OUT OF CONTROL ICEMEN SPREAD CORRUPTION, LAWLESSNESS, CRUELTY WITHOUT CONTROL OR ACCOUNTABILITY — So, Why Is This Surprising In Trump’s White Nationalist Empire? – Check Out This Explosive Pro Publica Series By Investigative Reporters Deborah Sontag & Dale Russakoff!

Here are links to the complete series:

NO SANCTUARY

The Unshackling of ICE

The Trump administration has unshackled ICE, making all undocumented immigrants fair game for deportation — even those with no criminal records, who have sunk roots into their communities. Nowhere has this new era of enforcement been more ruthless than in Pennsylvania. This is a collaboration with the Philadelphia Inquirer.

Who Polices the Immigration Police?

Claims of unjust arrests by ICE agents and cops often disappear into an overwhelmed immigration court system.

by Deborah Sontag and Dale Russakoff for ProPublica

April 16, 5 a.m. EDT

In Pennsylvania, It’s Open Season on Undocumented Immigrants

ICE’s Philadelphia office is fanning out into communities across its three-state region and making more “at-large” arrests of immigrants without criminal convictions than anywhere else in America.

by Deborah Sontag and Dale Russakoff for ProPublica

April 12, 4:59 a.m. EDT

For Cops Who Want to Help ICE Crack Down on Illegal Immigration, Pennsylvania Is a Free-for-All

Without guidelines or oversight, some officers are using traffic stops to question Hispanics and turn over undocumented immigrants to ICE.

by Dale Russakoff and Deborah Sontag for ProPublica

April 12, 4:59 a.m. EDT

From Border-Crosser to Felon

The Trump administration encouraged prosecutors to seek felony charges against those who re-enter the U.S. after being deported. In the case of this Bucks County gardener, government employees felt halfhearted about turning an immigrant into a criminal.

by Deborah Sontag

April 12, 4:58 a.m. EDT

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Powerful support for my oft stated position that under no circumstances should Congress authorize any additional unneeded enforcement agents for DHS without a complete accounting for what is being done with the current positions and without requiring evidence of real changes in training, policy, and supervision to eliminate the types of abuses described in these articles. Otherwise, we’ll be handing the Trump Administration an unrestrained, untrained, out of control “internal police force.” I can’t think of anything much worse for individual rights under our Constitution. It’s also making the argument for the complete abolition of ICE in its current structure look more and more reasonable.

PWS

04-18-18

SUPREME BOMBSHELL: JUSTICE GORSUCH PROVIDES CRITICAL FIFTH VOTE FOR OVERTURNING DEPORTATION STATUTE FOR UNCONSTITUTIONAL VAGUENESS! — Administration Suffers Yet Another Legal Setback, This Time At the High Court! – Sessions v. Dimaya — Get The Full Opinion, Court Syllabus, Key Quotes, & My “Instant Analysis” HERE!

Dimaya–15-1498_1b8e

Sessions v. Dimaya, No. 15–1498, 04-17-18 (5-4 Decision)

Syllabus By Court Staff:

The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the Unit- ed States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U.S.C. §16] . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree bur- glary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar re-

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SESSIONS v. DIMAYA Syllabus

sidual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitu- tionally vague.

Held: The judgment is affirmed.

803 F. 3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect to

Parts I, III, IV–B, and V, concluding that §16’s residual clause is un- constitutionally vague. Pp. 6–11, 16–25.

(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residu- al clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judi- cial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncer- tainty, ACCA’s residual clause layered an imprecise “serious poten- tial risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___. And its “substantial risk” thresh- old is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___. Pp. 6–11.

(b) The Government identifies three textual discrepancies between ACCA’s residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce imper- missible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16–24.

(1) First, the Government argues that §16(b)’s express require-

Cite as: 584 U. S. ____ (2018) 3

Syllabus

ment (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”— in other words, a court applying §16(b) may not “consider risks aris- ing after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any of- fense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the tem- poral language, a court applying the ordinary case approach, whether in §16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

Second, the Government says that the §16(b) inquiry, which focus- es on the risk of “physical force,” “trains solely” on the conduct typi- cally involved in a crime. Brief for Petitioner 36. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140. So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequenc- es. Thus, the force/injury distinction does not clarify a court’s analy- sis of whether a crime qualifies as violent.

Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem. Pp. 16– 21.

(2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21–24.

JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts II and IV–A:

(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed

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SESSIONS v. DIMAYA Syllabus

because the removal of an alien is a civil matter rather than a crimi- nal case. This Court’s precedent forecloses that argument. In Jor- dan v. De George, 341 U. S. 223, the Court considered what vague- ness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deporta- tion is “a particularly severe penalty,” which may be of greater con- cern to a convicted alien than “any potential jail sentence.” Jae Lee v.United States, 582 U. S. ___, ___. Pp. 4–6.

(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be aban- doned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact- based approach is an untenable interpretation of §16(b). 576 U. S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)’s text demands a categorical ap- proach. This Court’s decisions have consistently understood lan- guage in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.”Taylor v. United States, 495 U. S. 575, 601. And the words “by its na- ture” in §16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinari- ly entails. Finally, given the daunting difficulties of accurately “re- construct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”— and associated inequities—is as great in §16(b) as in ACCA. John- son, 576 U. S., at ___. Pp. 12–15.

JUSTICE GORSUCH, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair- notice standard should apply where (as here) a person faces only civ- il, not criminal, consequences from a statute’s operation is unavail- ing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard

Cite as: 584 U. S. ____ (2018) 5

Syllabus

because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving ei- ther the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1–19.

KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opin- ion with respect to Parts II and IV–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined as to Parts I–C–2, II–A–1, and II–B.

Key Quote From Justice Kagan’s Majority (Pt. V):

Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA’s] residual clause con- spire[d] to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). Because the clause had both an ordinary-case requirement and an ill-defined risk thresh- old, it necessarily “devolv[ed] into guesswork and intui- tion,” invited arbitrary enforcement, and failed to provide fair notice. Id., at ___ (slip op., at 8). Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA’s residual clause, §16(b) “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at ___ (slip op., at 6). We accordingly affirm the judgment of the Court of Appeals.

Key Quote From Justice Gorsuch”s Concurring Opinion:

Vague laws invite arbitrary power. Before the Revolu tion, the crime of treason in English law was so capa ciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya sub ject to removal for having committed a crime, the Immi gration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

Key Quote From Chief Justice Roberts’s Dissenting Opinion:

The more constrained inquiry required under §16(b)— which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender “grave uncertainty about how to estimate the risk posed by a crime.” And the provision’s use of a commonplace sub- stantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable “uncertainty about how much risk it takes for a crime to qualify.” That should be enough to reject Dimaya’s facial vagueness challenge.4

Because I would rely on those distinctions to uphold

——————

4 The Court also finds it probative that “a host of issues” respecting §16(b) “divide” the lower courts. Ante, at 22. Yet the Court does little to explain how those alleged conflicts vindicate its particular concern about the provision (namely, the ordinary case inquiry). And as the Government illustrates, many of those divergent results likely can be chalked up to material differences in the state offense statutes at issue. Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 783–785 (CA5 2012) (per curiam) (reasoning that New Mexico car burglary “requires that the criminal lack authorization to enter the vehicle—a require- ment alone which will most often ensure some force [against property] is used”), with Sareang Ye v. INS, 214 F. 3d 1128, 1134 (CA9 2000) (finding it relevant that California car burglary does not require unlaw- ful or unprivileged entry); see Reply Brief 17–20, and nn. 5–6.

14 SESSIONS v. DIMAYA ROBERTS, C. J., dissenting

§16(b), the Court reproaches me for not giving sufficient weight to a “core insight” of Johnson. Ante, at 10, n. 4; seeante, at 15 (opinion of GORSUCH, J.) (arguing that §16(b) runs afoul of Johnson “to the extent [§16(b)] requires an ‘ordinary case’ analysis”). But the fact that the ACCA residual clause required the ordinary case approach was not itself sufficient to doom the law. We instead took pains to clarify that our opinion should not be read to impart such an absolute rule. See Johnson, 576 U. S., at ___ (slip op., at 10). I would adhere to that careful holding and not reflexively extend the decision to a different stat- ute whose reach is, on the whole, far more clear.

The Court does the opposite, and the ramifications of that decision are significant. First, of course, today’s holding invalidates a provision of the Immigration and Nationality Act—part of the definition of “aggravated felony”—on which the Government relies to “ensure that dangerous criminal aliens are removed from the United States.” Brief for United States 54. Contrary to the Court’s back-of-the-envelope assessment, see ante, at 23, n.12, the Government explains that the definition is “critical” for “numerous” immigration provisions. Brief for United States 12.

In addition, §16 serves as the universal definition of “crime of violence” for all of Title 18 of the United States Code. Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. See 18 U. S. C. §§25(a)(1), 842(p)(2), 1952(a), 1956(c)(7)(B)(ii), 1959(a)(4), 2261(a), 3561(b). Of special concern, §16 is replicated in the definition of “crime of violence” applicable to §924(c), which prohibits using or carrying a firearm “during and in relation to any crime of violence,” or possessing a firearm “in furtherance of any such crime.” §§924(c)(1)(A), (c)(3). Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Court’s holding calls into question convictions under what the Government warns us is an “oft-prosecuted offense.” Brief for United States 12.

Because Johnson does not compel today’s result, I respectfully dissent.

Key Quote From Justice Thomas’s Dissent:

I agree with THE CHIEF JUSTICE that 18 U. S. C. §16(b), as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in Johnson v. United States, 576 U. S. ___ (2015). ACCA’s residual clause—a provision that this Court had applied four times before Johnson—was not unconstitu tionally vague either. See id., at ___ (THOMAS, J., concur ring in judgment) (slip op., at 1); id., at ___–___ (ALITO, J., dissenting) (slip op., at 13–17). But if the Court insists on adhering to Johnson, it should at least take Johnson at its word that the residual clause was vague due to the “‘sum’” of its specific features. Id., at ___ (majority opinion) (slip op., at 10). By ignoring this limitation, the Court jettisonsJohnson’s assurance that its holding would not jeopardize “dozens of federal and state criminal laws.” Id., at ___ (slip op., at 12).

While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See id., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that §16(b) is unconstitutionally vague be cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Accordingly, I respectfully dissent.

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Gee whiz, those Trumpsters and GOP Senators who were overflowing with their praise of Justice Gorsuch’s brilliance during his confirmation hearings must be beside themselves now that he joined the “Gang of Four” in striking down a statute in an immigration enforcement case!

I predicted early on that Gorsuch might surprise those on both sides who expected him to be a “complete Trump toady.” Indeed, the case that drove today’s decision in Dimaya, Johnson v. United States, was written by none other than Justice Scalia, one of Justice Gorsuch’s “juridical role models.” At bottom, Dimaya is all about strict adherence to the Constitution and separation of powers, two things that Gorsuch as extolled in past decisions.

No, I don’t think that Justice Gorsuch is likely to team up with Justices Kagan, Ginsburg, Breyer, and Sotomayor on most future immigration cases. But, I am encouraged that he seems to be going where his legal principles, whether one agrees with them or not, take him, rather than just voting to support the Administration’s hard-line immigration agenda as many had predicted and some had hoped or assumed would happen.

There are other important immigration cases before the Supremes where adherence to the literal language of a statute and skepticism about giving the Executive unbridled power under separation of powers could aid the respondent’s position. So, while this might not be a “normal” majority configuration, it could well be repeated in some future immigration case. Let’s hope so!

Interestingly, I had this issue come up in one of the last cases I wrote before retiring from the Arlington Immigraton Court. I noted that the respondent made a strong argument for unconstitutionality under Johnson v, United States. However, as an Immigration Judge, I had no authority to hold a statute unconstitutional (although, ironically, under today’s convoluted system, the respondent was required to make his constitutional argument before me to “preserve” it for review by the Court of Appeals). So, I merely “noted” the constitutional issue for those higher up the “judicial food chain” and decided the issue on the basis that burglary as defined under the state law in question was not categorically a “crime of violence” under the so-called “categorical approach.”

Two other points worth mentioning:

In this particular case, the Supremes upheld the ruling of the much maligned (particularly by Trump & Sessions) 9th Circuit Court of Appeals, having jurisdiction over California ;
This type of issue is frequently recurring in Immigration Court where many, perhaps the majority, of respondents are unrepresented. How would an unrepresented individual who does not even speak English make the type of sophisticated legal arguments that a) got this case to the Supremes in the first place, and b) persuaded the majority of the Court? Of course, they couldn’t. That’s why much of what is going on in today’s U.S. Immigration Courts is a farce — a clear violation of constitutional Due Process that the Federal Courts have been doing their best to ignore or gloss over for many decades.
As more light is shed on the much misunderstood U.S. Immigration Court system, both Congress and the Article III Courts must come to grips with the procedural, ethical, and fairness inadequacies built into today’s “captive” Immigration Courts and the utter lack of any concern about protecting the legal rights of migrants shown by Jeff Sessions and the rest of the Trump Administration. Shockingly, they have actually pledged to stomp on migrants already unfulfilled rights to fair hearings in the name of a “false efficiency.”
Join the “New Due Process Army” and help stop the continuing abuses of human rights, statutory rights, and constitutional rights of migrants by Sessions and the rest of the “Trump Scofflaws!”

PWS

04-17-18

HEAR JUDGE A. ASHLEY TABADDOR, PRESIDENT OF THE NAIJ TESTIFY LIVE BEFORE THE SENATE JUDICIARY COMMITTEE ON WEDNESDAY APRIL 18, 2018 ABOUT THE APPALLING STATE OF “JUSTICE” IN OUR UNITED STATES IMMIGRATION COURTS UNDER TRUMP & SESSIONS!

From: John Manley [mailto:jmanleylaw@gmail.com]
Sent: Monday, April 16, 2018 12:34 PM
To: AILA Southern California Chapter Distribution List <southca@lists.aila.org>
Subject: [southca] IJ Tabaddor to testify in Congress Wednesday

Colleagues,

As currently scheduled, Judge A. Ashley Tabaddor is expected to testify this Wednesday at 2:30PM EST 11:30AM PST. at a hearing on Strengthening and Reforming America’s Immigration Court System

Here is the link to the event, if you want to watch it: https://www.judiciary.senate.gov/meetings/strengthening-and-reforming-americas-immigration-court-system

—

John M. Manley
Attorney at Law
11400 W Olympic Blvd., Suite 200
Los Angeles, CA 90064
Phone: (310) 597-4590
Fax: (310) 597-4591
www.johnmanley.net;
email: jmanleylaw@gmail.com

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

PWS

04-16-18

TAL @ CNN: DHS IG TO INVESTIGATE SEPARATION OF FAMILIES

http://www.cnn.com/2018/04/16/politics/dhs-separating-families-ig-investigation/index.html

Watchdog to investigate DHS family separations in immigration custody

By Tal Kopan, CNN

The Department of Homeland Security watchdog will investigate whether the Trump administration is separating families in immigration custody, according to a letter the department’s inspector general sent to the office of Sen. Dick Durbin, D-Illinois.

The inspector general will look into whether the agency is separating the children of asylum seekers from their parents, the letter says.

The review comes after Durbin led a coalition of Democrats in requesting the IG look into the matter after reports that DHS was separating children from their parents in immigration custody. While there have been specific reported incidents, it has been unclear if it is a widespread practice.

Homeland Security Secretary Kirstjen Nielsen testified last week before Congress that the department only separates adults from children in custody “in the interest of the child” — for instance, if there’s a suspicion of possible human trafficking or if they are unable to confirm the child is actually traveling with his or her parents or legal guardians.

She did, however, admit that in the case of a Congolese woman who was separated from her young daughter for months, which has spurred a lawsuit from the American Civil Liberties Union, that the process of verifying they were in fact family “took too long.”

After the lawsuit was filed, that mother and her daughter were reunited and a DNA test did confirm their relationship.

The letter from acting Homeland Security Inspector General John V. Kelly, which was provided to CNN, said his office has determined it will “conduct a review of this matter” and requested a follow-up meeting to discuss it further.

The issue of family units has been a source of difficulty for the department for years. A court ruling has held that children cannot be detained in what are essentially immigration jails for longer than three weeks, and the Obama administration thus issued guidance that family units would be released from custody together.

The Trump administration has decried this court ruling as a “loophole” that allows immigrants who have cleared the initial screening to pursue asylum protections in the US to live in the country for potentially years as their case works its way through the court system.

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Not for the first time, Nielsen appears to be living in a parallel universe from everyone else. That’s why it’s a good idea to have the IG get to the bottom of what’s really happening.

PWS

04-17-18

NOLAN & I PRESENT CONTRASTING VIEWS ON THE SOUTHERN BORDER!

http://thehill.com/opinion/immigration/383305-border-security-weaknesses-more-serious-than-so-called-caravan

Nolan writes in The Hill:

Despite political spin to the contrary, the border is not secure, and the hearing highlighted problems which are preventing DHS from securing it.

The National Immigration Forum submitted a statement claiming that U.S. border policies have been effective, but that claim was contradicted by testimony from the director of the Texas Department of Public Safety (DPS), Colonel Steven McCraw.

According to McCraw, the federal government did not respond to numerous requests from Texas Governor Greg Abbott to provide the Border Patrol with the resources it needs to secure the border, so Texas has had to provide the necessary assistance at its own expense.

Texas deployed State Troopers, Special Agents, and Texas Rangers to the border to conduct around-the-clock ground, marine, and air operations. Then, three years later, it deployed 500 State Troopers, tactical marine boats, aircraft and detection technology assets, and the Texas National Guard to the border.

But illegal crossings and smuggling continued and crime in the border region continued to rise.

. . . . .

Credible fear determinations have increased from 5,000 in 2009 to 94,000 in 2016, and due apparently to misapplication of asylum law, a credible fear was found in 88 percent of the cases.

Also, the William Wilberforce Trafficking Victims Reauthorization Protection Act (TVPRA) has been used to require placement with the Office of Refugee Resettlement instead of removal proceedings for the 200,000 unaccompanied alien children (UACs) who have come to America from Central America since 2013. But most of them are not trafficking victims.

According to the White House, most UACs fail to appear at their hearings and many who do and are found deportable do not comply with their deportation orders. Only 3.5 percent of them are removed from the U.S.

It is apparent from this testimony that the border is not secure and that the measures being taken to secure it are not likely to be effective.

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

Nolan an I agree on one important point: Jeff Session’s announcement of “Immigration Judge quotas” will not help solve the Immigration Court backlog phenomenon.

However, I wouldn’t assume as Nolan apparently does, that the Texas DPS is a better source of information than the National immigration Forum. Nor, would I make the assumption that an 88% approval rate for credible fear screening represents a “misapplication of the law.” Based on my experience with credible fear reviews in Immigration Court, that number of positive determinations seems perfectly reasonable. Moreover, on the life or death question of asylum, the system should always error on the side of giving the individual a full hearing on a protection claim rather than denying the claim with no day in court.

Now, it’s my turn.

According to a 2016 study by the American Immigration Council (“AIC”) using EOIR’s own data, represented children appear for their hearings about 95% of the time. https://www.justice.gov/eoir/file/852516/download
- As this AIC report points out, most of the reasons for non-appearance relate to defects in the DHS/EOIR notice system. Moreover, even when children understand the system, they are usually dependent on the actions of others like guardians to actually appear in Immigration Court. It’s highly unlikely that many children make an intentional decision not to appear.
- I was not assigned to the so-called “Priority Juvenile Docket.” But, I did plenty of juvenile cases during my 13-year tenure at the Arlington Immigration Court. In my experience, the overwhelming majority of juveniles appeared as scheduled. When represented, the appearance rate was close to 100% as suggested by the AIC report.
- Of the minority who didn’t appear, most eventually had their cases reopened based on defective notice or extraordinary circumstances beyond their control.
According to a 2016 ABA Study, approximately 73% of represented juveniles achieved some relief in Immigration Court, as opposed to 15% of unrepresented juveniles. https://www.americanbar.org/content/dam/aba/administrative/immigration/uacstatement.authcheckdam.pdf
- Many of those denied asylum actually had legitimate fears of harm upon return, but did not fit the overly restrictive “refugee” definition developed by the BIA with the apparent purpose of limiting Northern Triangle protection.
- Juveniles often were able to obtain relief through means other than asylum such as Special Immigrant Juvenile (“SIJ”) status, “U” nonimmigrant status for victims of crime, “T” nonimmigrant status for trafficking victims, and Convention Against Torture (“CAT”) withholding.
As these reports suggest, a better approach to Southern Border arrivals would involve:
- Insuring that counsel represents all asylum applicants.
- Improving the quality and accuracy of hearing notices served by DHS & EOIR.
- Expanding the asylum definition to be more generous and to conform to UNHCR interpretations.
- Allowing all asylum applicants to have an initial non-adversarial application before the Asylum Office to take pressure off of the Immigration Courts.
- Initiating a realistic legalization program for long-term undocumented residents of the US that would take the majority of the “non-criminal” cases off the Immigration Court docket, thus allowing the Courts to re-establish a reasonable 12-18 month completion cycle for non-detained cases.
- Re-establishing “in country” refugee processing programs in the Northern Triangle and making them more timely and expansive so as to reduce the pressure to apply for asylum at our Southern Border.
- Creating other forms of temporary protection for those with legitimate fears of return who fall outside the legal definitions for protection.
- Working closely with the UNHCR, Mexico, and other Western Hemisphere countries to 1) address the conditions in the Northern Triangle driving the refugee flow, and 2) sharing the distribution of Western Hemisphere refugees equitably.

We know for sure from over four decades of consistent failure what DOESN’T WORK:
- “Militarization” of the border;
- Increased detention, criminal prosecution, and other ineffective “deterrents;”
- Reducing or truncating rights of asylum seekers;
- Endless “reprioritization” of Immigration Court dockets.
Yet, these are the very types of failed programs that the Trump Administration is mindlessly pushing.
Why not try something smart and humane, rather than repeating past expensive, ineffective, and inhumane mistakes over and over?

PWS

04-16-18

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“I answered them that it was not Roman practice to hand over an accused person before he has faced his accusers and had the opportunity to defend himself against their charge.”

Acts 25: 16

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Snapshots from the US-Mexico border

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Join the New Due Process Army and fight to give real meaning to the Constitutional guarantee of Due Process for all in America.

PWS

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Claims of unjust arrests by ICE agents and cops often disappear into an overwhelmed immigration court system.

ICE’s Philadelphia office is fanning out into communities across its three-state region and making more “at-large” arrests of immigrants without criminal convictions than anywhere else in America.

Without guidelines or oversight, some officers are using traffic stops to question Hispanics and turn over undocumented immigrants to ICE.

The Trump administration encouraged prosecutors to seek felony charges against those who re-enter the U.S. after being deported. In the case of this Bucks County gardener, government employees felt halfhearted about turning an immigrant into a criminal.

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