https://www.voanews.com/usa/us-immigration-courts-brace-flood-asylum-claimsb

Aline Barros reports for VOA News:

U.S. immigration courts, already swamped with a backlog of 1.3 million cases, are ill-prepared to handle a crush of new asylum claims filed by a rising number of people crossing the U.S.-Mexico border, especially children traveling alone, current and former immigration judges told VOA.

. . . .

“The backlog has grown,” said Jeffrey Chase, a former immigration judge and senior legal adviser at the Board of Immigration Appeals. He added there are two ways to handle the situation.

“The response to this usually is: Hire more judges. And I think the response should be: Let’s be smarter about who we put into court and how we prioritize the cases and how we handle the cases,” Chase told VOA.

. . . .

Dana Marks, a sitting immigration judge in San Francisco who spoke with VOA in her capacity as president of the National Association of Immigration Judges (NAIJ), said the increase in immigration court cases has been gradual and “that’s why I think it stayed under the radar.”

. . . .

U.S. immigration courts are not like the federal courts that most people are familiar with. For one thing, they are housed within the executive branch — specifically, the U.S. Justice Department’s Executive Office for Immigration Review (EOIR).

In addition, immigration cases play out differently than regular court cases where litigants often feel pressure to avoid trial.

“One of the problems with the immigration system, as it currently is — we don’t have plea agreements or stipulations that handle a lot of these cases like you do in a criminal court setting where the parties meet and come up with a mutual compromise and a settlement,” Marks explained. “So every case goes to trial.”

A recent TRAC report concluded that even if the administration of President Joe Biden halted immigration enforcement entirely, “it would still take more than Biden’s entire first term in office — assuming pre-pandemic case completion rates — for the cases now in the active backlog to be completed.”

. . . .

“Our organization has long advocated that the immigration court system be taken out of the Department of Justice, and restructured, like the Article 1 [federal] tax courts,” Marks said.

Aaron Hall, an immigration lawyer in Denver, Colorado, said the immigration court system is currently subject to the whims of whichever party controls the executive branch. But he added that making the courts independent is not enough.

“We still have 1.3 million people in the system,” he said. “There’s no way to both respect due process and push all these cases through in any kind of timely manner. The resolution needs to be immigration reform.

“Having an independent immigration court system is better than having [the courts] in the Department of Justice, but what really needs to change is our [immigration] law,” Hall added.

While the Biden White House has criticized Trump’s handling of immigration cases, the new administration has yet to announce concrete measures to reform the immigration court system or take a position on calls to make it independent from the Justice Department.

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

Read the complete article at the link.

Those of us who have served in the Immigration Courts are used to a struggling system unnecessarily in crisis because of a combination of inept bureaucratic management (duh, you can’t treat a court system like an agency, particularly one somewhat resembling the “Legacy INS”) and counterproductive, often ignorant, sometimes malicious, political interference from “Downtown.”

But, the prospect for improvements are bleak, with nobody currently at the “Main DOJ” or at “EOIR Headquarters” who is qualified to lead the way toward rebuilding EOIR so that “teamwork, innovation, and best practices would create a functioning court system that would guarantee fairness and due process for all.” Doesn’t sound like “rocket science” to me.

Let’s be clear about one thing. Not every asylum case needs to go to “full hearing” in a properly staffed Immigration Court system with expert judges trained in asylum law, positive precedents setting forth generous reasonable criteria for granting asylum, and a qualified BIA willing to hold accountable those unqualified Immigration Judges who have established and maintained illegal and disgraceful “Asylum Free Zones” in Immigration Courts throughout America!

Almost 100% of the “asylum precedents” issued by the AG and BIA in the last four years, and the vast bulk of those issued after 2001, tell Immigration Judges how to, and encourage them to, deny asylum, often based on specious reasoning or in conflict with earlier, more generous court and administrative precedents, not to mention the letter and spirit of the U.N. Convention and sometimes the language of the statute and the regulations.

And, due process for asylum seekers and other migrants is mocked in Immigration Court on a daily basis, even as their courageous, often pro bono counsel, are systemically abused! Is this what Judge Garland REALLY stands for? If not, why is he letting it happen?

With competent counsel representing asylum seekers and documenting their cases, and thoughtful well-trained ICE Assistant Chief Counsel with senses of justice, many positive asylum cases can be well-documented, “pre-tried” by the parties, completed, and granted in Immigration Court in a one-hour time slot or less. Indeed, before Sessions and Barr intentionally, senselessly, and maliciously destroyed what was left of  justice for asylum seekers in Immigration Court, so called “A-R-C-G- domestic violence cases,” Kasinga FGM cases, family-based asylum cases, Ethiopian and Eritrean political persecution cases, evangelical Christian cases, and LGBTQ+ cases were all staples of my “short docket” — usually conducted every other Friday, at the Arlington Immigration Court. In those days, the parties worked together to get clear grants of relief that were “buried in the backlog” advanced for short hearings, with my active encouragement.

Another largely unexplored alternative is to give Immigration Judges authority to return certainly prima facile grantable asylum cases to a revived and functioning Asylum Office for completion. There are lots of ways that a different group of qualified, well-trained, practical Immigration Judges, and a BIA with Appellate Judges drawn from the ranks of “practical scholars” who are experts in asylum and due process working with (not “under”) professional judicial administrators, could get this system functioning and force those judges who are members of the “Asylum Denial Society” to shape up or ship out. That would keep Immigration Courts from building future unmanageable backlogs by focusing docket time on those cases with real issues needing full hearings. And, nobody’s due process rights would be trampled in the process by mindless “haste makes waste deny everything” enforcement gimmicks such as those the Trump regime constantly tried to impose.

Real court systems are about justice, not “deterrence” or “sending messages,” or even “carrying out Administration policies,” although there shouldn’t be much of a conflict with the latter if the Biden Administration actually lived up to its promises to asylum seekers and other migrants (something it hasn’t shown any inclination to honor, to date). The Immigration Courts, much like Article III Courts, need better judges, not necessarily more of them! Unlike the Article IIIs, which are a long term project, Judge Garland could engineer a solution for the Immigration Courts that would show drastic improvements before the end of this year and get better every year thereafter!

But, with the current gang at DOJ and Falls Church, (remarkably still riddled with Trump holdover bureaucrats and anti-asylum “appellate judges” churning out negative precedents) it’s “mission impossible.” Not a professional judicial administrator or qualified appellate judge among them!

There are folks who could institute the bold, yet obvious, steps necessary to clean up the backlog in relatively short order without stomping on individual rights; come up with merit-based judicial hiring criteria; issue precedents that would advance, not retard, due process for asylum seekers; institutionalize best (rather than worst) practices; “kick tail” until some working basic modern technology (like e-filing) is in place; learn from the private bar’s in-court experiences; put some professional judicial training in place; and return docket control and administration to local courts, where even a minimally competent judicial administrator (in other words, NOT an agency bureaucrat or DOJ politico) would know it belongs. 

Now is the time to toss the deadwood and get this system back on track — before the next wave of asylum cases hit the mind-boggling dysfunction in today’s Immigration Courts. How does anyone think that throwing 100 additional Immigration Judges into this disaster zone (the Administration’s budget proposal) will solve the systemic mess and the institutionalized failure to provide anything resembling justice?

Unfortunately, the folks who could do the job are either sitting judges in the Immigration Courts or in the private/NGO sector. And, despite warnings and pleas from those of us who actually understand the system, what’s wrong with it, and how it might be fixed, Judge Garland appears uninterested in engaging in the dialogue or making the obvious personnel moves necessary to build a functioning, due-process-oriented, expert court system. So right now, the chances of avoiding further disaster look pretty grim.

Wonder what the Judge’s  “emergency plans” are for when the tsunami finally hits 10th & PA, NW, in D.C.? Like most past AGs not named Jeff “Gonzo Apocalypto” Sessions, Garland might trivialize the importance of immigration and EOIR in his own mind. Maybe that’s because so few immigration cases came before the D.C. Circuit, and the ones that did involved regulations, statutes, and policy issues, usually not “individual removal cases” where human lives were at stake in an immediate context. 

Perhaps it’s because EOIR is “across the river” in Falls Church, out of sight, out of mind. Maybe it’s because the unending damage that a dysfunctional and unfair EOIR inflicts on men, women, children, and their lawyers, happens across the U.S., out the Judge’s presence or consciousness. Occasionally, the Post and other national media pick it up. But the human trauma, cruelty, unfairness, and real life stories of EOIR’s disreputable conduct go largely untold and unnoticed. Even the victims and their loved ones are often too deep in the throes of these officially-sanctioned and unnecessarily-harsh injustices to worry about complaining or seeking redress.

I can, however, predict to Judge Garland that if he continues on his current tone-deaf, inept course, both his tenure as Attorney General and his legacy will forever be identified with lousy, inhumane, dysfunctional immigration policies and his inexcusable failure to fix EOIR, or even make a good faith attempt at it! 

🇺🇸⚖️🗽Due Process Forever!

PWS

04-12-21