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

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

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

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

For further details, see the full report at:

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

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

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

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

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

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

http://facebook.com/tracreports

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

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

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

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Remember, folks, the next time you hear the Administration’s “professional liars” like Kirstjen Nielsen engage in bogus “hand wringing” and call for crackdowns on asylum applicants, their lawyers, and drastic changes to asylum law — she is covering up and shifting the blame for grossly incompetent management of the asylum program and the Immigration Courts by this Administration. “Victim blaming and shaming” — a staple of the Trump Kakistocracy — is about as low as it goes.
While laws can always be improved —  for example an Article I U.S. Immigration Court, adding gender-based asylum to the “refugee” definition, supporting legal representation for arriving asylum seekers, and increasing the number and initial jurisdiction to grant asylum of the Asylum Officers should be “bipartisan no brainers” —  the real problem here is not the law!
No, it’s the unwillingness of this Administration to follow laws protecting refugees, allow for robust “out of country processing” of refugees from Central America, and eliminate anti-asylum, anti-Latino, and anti-female bias from our asylum adjudication system that has created a “self-constructed crisis.”
Insist that this Administration take responsibility for their “designed to fail,” White Nationalist, restrictionist policies, improve performance, and administer refugee and asylum laws fairly, impartially, and in accordance with Due Process under our Constitution.
Under no circumstances should the already far too limited rights of asylum seekers and migrants to receive fair, honest, and humane treatment in accordance with constitutional Due Process be reduced as this Administration is always disingenuously seeking. And the money being illegally diverted and wasted on a semi-nonsensical “Wall” could and should much better be spent on improving our current asylum system and making it work — without any more illegal “gimmicks” such as attempting to rewrite the statutes by regulation, the bogus and ill-conceived “Migrant Protection Protocols,” and “slow walking” the applications of those who line up patiently to apply for asylum at legal ports of entry.
PWS
11-20-19

THE HILL: Nolan Says That Border Security Is Now In Speaker Pelosi’s Hands

 

Family Pictures

Pelosi has won — and she’s now the only one able to secure the border

By Nolan Rappaport
Pelosi has won — and she's now the only one able to secure the border
© Greg Nash
House Speaker Nancy Pelosi (D-Calif.) claims that “Democrats are committed to border security,” but the Democrats have opposed President Donald Trump’s efforts to do that.
Pelosi supported the joint resolution to terminate Trump’s declaration of a National Emergency at the Southern border. The resolution was passed in both chambers and sent to Trump on March 14. He vetoed it the next day.
Congress appears unlikely to override the veto, so the fate of the declaration probably will be decided by the same Ninth Circuit Courts that flouted precedent to block Trump’s travel ban, which almost certainly will result in another lower court defeat for Trump. The Supreme Court, however, may reverse the lower courts, as it did in the travel ban case. But that could take quite some time.
The Catch-22 at the heart of the matter
During the Bill Clinton administration the government entered into a settlement agreement that makes it difficult to remove aliens who bring their children with them when they make an illegal border crossing.
This became apparent last May, when Trump announced a zero-tolerance border security enforcement policy. Illegal entries are a crime: The first offense is a misdemeanor and subsequent offenses are felonies. Trump tried to use a no exceptions threat of a criminal prosecution as a deterrent. “If you cross the border unlawfully, then we will prosecute you,” he said — no exceptions for aliens who bring their children with them.
The problem was prosecution of an alien who has his child with him requires the government either to detain the child with him while he is being prosecuted or separate him from his child.
Published originally on The Hill.
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Go on over to The Hill at the above link to read Nolan’s complete article.
Seems like the Government’s best bet would be to work cooperatively with NGOs and pro bono groups to link families who pass credible fear or who have court challenges pending to pro bono attorneys and to charitable organizations who can aid in temporary resettlement. In those situations, represented families almost always show up for their court hearings and keep the courts, DHS, and the lawyers properly informed of their whereabouts.
If the Government deems it a “priority” to move these cases to the “front of the court line” then they can remove some of the cases that are more than three years old and do not involve individuals with crimes from the already overcrowded Immigration Court dockets. The hundreds of thousands of pending and moribund  “Non-Lawful Permanent Resident Cancellation of Removal Cases” would be fairly easily identifiable and logical candidates.
That will allow the Immigration Courts to concentrate on fair and timely adjudications of the more recent asylum claims without contributing to the overwhelming backlog. Some fair precedents by the Article III Courts (under this DOJ, the is no chance of fair asylum precedents being issued administratively) as to what claims do and do not properly qualify for asylum and relief under the CAT would eventually help provide meaningful guidance to Asylum Officers, Immigration Judges, BIA Appellate Judges, and the private bar, and well as DHS Attorneys. This in turn, would help minimize the court time spent on cases that either were “slam dunk grants” or had “no chance” even under the most favorable view of the facts for the applicant. Both the DHS and the private bar would thus be motivated to spend time on the cases that really needed to be litigated in Immigration Court.
Additionally, greater predictability in the U.S. asylum system might also assist human rights groups working with individuals in the Northern Triangle and in Mexico to make better, more informed, and more realistic decisions as to whether to pursue humanitarian resettlement opportunities in Mexico and other countries in the hemisphere that might offer such.
If Congress were going to act, the most helpful changes would be 1) establishing an independent Article I immigration Court to replace the dysfunctional mess that has  been created over the past several Administrations but severely and unnecessarily aggravated by this Administration; 2) amend the Act’s definition of “asylum” to make it clear that “gender” is a subset of “particular social group” persecution; 3) authorizing some type of “universal representation program” for asylum applicants in Immigration Court; and 4) requiring the Administration to reinstitute a meaningful “outside the U.S.” refugee processing program for Latin America in conjunction with the UNHCR;
No, it wouldn’t solve all problems overnight. Nothing will. But, it would certainly put an end to some of the Administration’s wasteful and bad faith “gimmicks” and unnecessary litigation that now clog our justice system. That’s at least the beginning of a better future and a better use of resources.
PWS
03-18-19

ATTENTION NDPA NY BRIGADE AND ALL OTHER “DUE PROCESS WARRIORS” IN THE NY METRO AREA: Come Hear About The Dysfunctional Due Process Mess In Our U.S. Immigration Courts & The Article I Solution!

This is my final “scheduled stop” in the NY Metro Area this Spring. don’t miSs it!

PWS

03-18-19

What The DAG SHOULD Have Said To New U.S. Immigration Judges (But, Of Course Didn’t) . . .

WELCOME: DUE PROCESS IS YOUR ONLY MISSION

Congratulations on your appointment as U.S. Immigration Judges. It’s a difficult and important judicial position under the best of circumstances. Given the many controversies surrounding immigration today your job is even more challenging.

You face an overwhelming backlog resulting from factors largely beyond your control. Rather than being consumed or demoralized by that backlog, your job is to guarantee fairness and due process in each individual case coming before you. This requires you to act independently and resist pressures, from any quarter, to “cut corners” or otherwise compromise your constitutional duty to act impartially, fairly, and professionally toward each individual appearing before you.

While you occupy an unusual position as quasi-judicial officers who are also employed by Department of Justice, the Department regulations charge you with exercising your “independent judgment and discretion and . . . [taking] any action consistent with [your] authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.”

Indeed, the United States Supreme Court in the landmark case U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) stated with respect to your similarly situated judicial colleagues on the Board of Immigration Appeals that each administrative judge serving under these regulations “must exercise his authority according to his own understanding and conscience. This applies with equal force to the Board and the Attorney General. In short, as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.”

Consequently, although as a cabinet officer the Attorney General might sometimes take certain positions or advocate certain policies, you must consider only the facts, the statutes, the regulations, and any precedent decisions directly relevant to your particular case in reaching your decisions. And, you must always treat the Department of Homeland Security as a separate party, with the same respect and consideration that you will give to individuals coming before you and their attorneys. That you are all employees of the same Government should not entitle DHS to special or preferable treatment or deference not afforded to other parties coming before your courts.

The motto of the Department of Justice, basically refers to one “who prosecutes in the name of justice.” Thus, our Department stands alone in incorporating a moral principle — the requirement of doing justice — into its mission. As that great American Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.”

Some of the most vulnerable individuals entitled to due process under our Constitution will come before you in your courts. Your awesome and solemn responsibility is to insure that they receive due process and fairness — in other words justice — no matter how difficult their individual circumstances might be or any handicaps under which you might be operating.

Many of those arriving in the United States today are applying for asylum under our laws. Those fleeing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion are eligible for protection. In INS v.Cardoza-Fonseca, 480 U.S 421 (1987) our Supreme Court instructed us to apply the asylum standard in a generous manner. Others who face torture at the hands of, or with the “willful blindness” of, their governments, are entitled to protection without having to establish that the torture results from one of the foregoing “protected grounds.” An important part of your job will be insure that those who qualify for protection under our laws are given a full and fair chance to prepare their cases, to be represented by counsel of their choice, receive fair and reasoned decisions, and are not unfairly returned to harm in the countries they fled.

For my part, I pledge that during the time I remain with the Department of Justice I will do everything in my power to protect your quasi-judicial independence from improper influence, to allow you to manage your own dockets and develop “best practices” without bureaucratic interference,  and to secure for you the resources you need to do your critically important jobs. I trust that my successor will do likewise.

The vision of our Immigration Courts is “through teamwork and innovation become the world’s best administrative tribunals guaranteeing fairness and due process for all.” Your challenge is to do everything within your power to make that vision a reality each day you are on the bench.

Congratulations again on your selection and on choosing to serve our country in these important judicial positions at this critical juncture in our history. I thank you in advance for your future service and commitment to insuring equal justice for all. Good luck, do great things, and make due process for all your daily goal.

 

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Someday, we will once again have an Attorney General and a DAG who truly respect Constitutional Due Process, don’t fear independent judicial decision-making, and have the courage and backbone to “just say no” to White Nationalist restricitionist agendas that conflict with our Constitution, our statutes, our international obligations, common human decency, and what were once almost universally considered “true American values.”

Until then, it will be up to the “New Due Process Army” and their allies to keep Due Process and fairness for all of us alive during what will go down as one of the darkest and most evil periods in modern American history.

PWS

08-18-19

DAG ROSENSTEIN INADVERTENTLY MAKES COMPELLING ARGUMENT FOR INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT IN SPEECH TO NEW JUDGES — Places Emphasis On Executive, Fealty To Attorney General, Not Independence. Impartiality, & Insuring Due Process! — REAL “Courts” Don’t Answer to Prosecutors!

https://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbXNpZD0mYXVpZD0mbWFpbGluZ2lkPTIwMTkwMzE1LjMyNjAxNDEmbWVzc2FnZWlkPU1EQi1QUkQtQlVMLTIwMTkwMzE1LjMyNjAxNDEmZGF0YWJhc2VpZD0xMDAxJnNlcmlhbD0xODQ4OTEzNiZlbWFpbGlkPWRrb3dhbHNraUBkYXZpZC13YXJlLmNvbSZ1c2VyaWQ9ZGtvd2Fsc2tpQGRhdmlkLXdhcmUuY29tJnRhcmdldGlkPSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&&&101&&&https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly

Deputy Attorney General Rod J. Rosenstein Delivers Opening Remarks at Investiture of 31 Newly Appointed Immigration Judges
Washington, DC

~

Friday, March 15, 2019

Thank you, James, for that kind introduction. I appreciate your devoted service to the Department of Justice.

I also want to thank Deputy Chief Judges Santoro and Cheng, and Assistant Chief Judges Doolittle, Owen, Mart, and Weiss.

I am grateful to Marcia Lee-Sullivan and Karen Manna for helping to plan this event.

Above all, I want to congratulate our 31 new immigration judges for joining the Executive Office for Immigration Review, and welcome the family members and friends who are with us today.

I took my first oath as a Department of Justice employee in 1990. I hope it is as meaningful to you as it is to me. They have sworn me in several more times over the past three decades. But they never swear you out.

The oath obligates you to support and defend the Constitution. Our nation was not united by race, ethnicity, religion, or even national origin. The founders’ goal of bringing peoples of the world together in a single nation is reflected in the motto adopted at the founding of our Republic: e pluribus unum: from the many, one. Our one nation is unified by our shared commitment to the principles of the United States Constitution.  The preamble sets forth, among its primary goals, to “establish Justice.” Justice – or the fair application of the rule of law – is the essence of America.

The right to live and work in America is a tremendous privilege. It is a valuable privilege. It is a privilege that has meaning only if we exercise our right and duty to protect it by setting rules for people who seek to acquire the privilege.

It is right and proper for us to insist that people who desire to join our nation – people who want themselves and their children to join the privileged group who define ourselves as “we, the people” – start by following the rules governing admission and citizenship.

The duties imposed by your oath of office include faithfully enforcing those rules.

America’s immigration laws are generous and welcoming, but they are intended to protect the rights and advance the interests of current and future citizens.

More than a century ago, Theodore Roosevelt remarked that “[t]he average citizen must be a good citizen if our republics are to succeed. The stream will not permanently rise higher than the main source; and the main source of national power and national greatness is found in the average citizenship of the nation.” Roosevelt did not limit his remarks to birthright citizens. He said, “We must in every way possible encourage the immigrant to rise …. We must in turn insist upon his showing the same standard of fealty to this country and to join with us in raising the level of our common American citizenship.”

Obeying the law when seeking entry to the United States is an essential component of “fealty to this country.”

Estimates suggest that there are more than 44 million people in our country who were not American citizens at birth. That is almost 14 percent of our population, the largest share in more than a century.  America’s foreign-born population exceeds the total population of California, our most populous state, and it is larger than the entire population of Argentina.

Those numbers continue to grow. Every year, we generously extend lawful permanent resident status to more than one million people, and we allot hundreds of thousands of student visas and temporary work visas.

It is no surprise that so many people want to join us. According to the World Bank, nearly half of the world lives on less than $5.50 per day. According to a recent Gallup poll, 150 million people around the world want to immigrate to the United States. We cannot take them all.

For our system to be fair, it must be carried out faithfully and equitably. It must be fair to all who desire to come here — whether they live south of our border or an ocean away.

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.

You take office at a critical time. The number of immigration cases filed each year is rapidly increasing. In February, the Department of Homeland Security apprehended 66,000 aliens who unlawfully entered our country between ports of entry along the southwest border. On average, our colleagues at the Department of Homeland Security encounter about 3,000 aliens every day along the southern border.

Most of them cross the border unlawfully, between points of entry. They chose not to follow the law. Because they do not follow the law, many of them expose themselves and their children to exploitation and abuse. Many pay criminal smugglers because they know that they might not be allowed to enter lawfully. Nonetheless, our legal system protects them.

The massive influx of aliens who arrive in America illegally and invoke due process rights under our law creates a staggering volume of immigration cases that require resolution.

The primary factor driving the increasing backlog is the significant increase in asylum applications. Asylum applications have more than tripled in less than five years.

Our asylum system was established in the aftermath of World War II. America seemed to have limitless space at that time, and the goal was to protect minority groups from persecution by foreign states, the kind of persecution that the world witnessed during World War II and which was prevalent at that time in the purges conducted by our erstwhile ally, the Soviet Union.

The law authorizes asylum only for victims who suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or because of their political opinion.

Other reasons for seeking to immigrate may be rational and even laudable. We certainly understand why foreigners wish to come to America in search of better opportunities for themselves and their children. America is a great nation that does not need walls to keep its citizens from leaving, like the Soviet Union. We build walls only to protect ourselves and enforce our rules.

The duty of our immigration judges is to honestly find the facts and faithfully apply the laws, so that people obtain asylum only if they qualify for it under the statute.

We are taking steps to address the massive influx of cases. We are hiring more judges; we are holding more hearings; and we are completing more cases, more quickly.

Since President Trump’s inauguration, the Department of Justice has hired more immigration judges than in the previous seven years combined. We now employ the largest number of immigration judges in history. There are 48 percent more immigration judges than three years ago, and 71 percent more than five years ago.

And we are finding innovative ways to become more efficient. For example, the Department has had great success using video teleconference technology, which enables judges to share the case burden with one another across the country.

We will look for other ways to become more efficient and more effective. But ultimately we are depending upon you, both to perform your duties expeditiously, and to let us know when you identify opportunities for improvement.

One of my favorite management parables is about a child who watches her mother prepare a roast beef.  The mother cuts the ends off the roast before she puts it in the oven.  The child asks why. The mother says that she learned it from her mother. So the child asks her grandmother. The grandmother explains, “When your mother was a child, I cut the ends off because my pan was too small to fit the whole roast beef.”

The moral is that the solutions of the past are not necessarily the right solutions today.  Circumstances change.  Sometimes we need to reconsider assumptions and realign our practices to achieve our goals.  The movie “Moneyball,” based on a book by Michael Lewis, summarizes the lesson in three words borrowed from Charles Darwin: “Adapt or die.” Some of the best ideas to enhance efficiency come from relatively new employees who are not accustomed to existing bureaucratic rules. If you think you know a better way to accomplish our mission, please speak up and let us know.

Our challenges are daunting.  But you can be part of the solution.

Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties.

We chose you because of your qualifications, your legal skills, and your personal integrity. We believe that you are ready for this challenge.

Thank you for your willingness to serve, and welcome to the Department of Justice.

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There were a few good things about Rosenstein’s presentation:

  • As I had predicted would happen under Barr, he improved the tone by ditching the overt appeals to White Nationalism, racist dog whistles, and misogyny present in most of Sessions’s rhetoric:
  • He also dropped the vicious, disingenuous attacks on the private bar that were a staple of Sessions’s anti-immigrant screeds;
  • He at least acknowledges that immigrants are a large permanent part of our society, although downplaying the truth that, contrary to Stephen Miller and other Trump restrictionists, we are, in fact, a “nation of immigrants;”
  • He acknowledges the obligation to be “fair to all who desire to come here — whether they live south of our border or an ocean away;”
  • He at least grudgingly recognizes that all who come here are entitled to certain protections under our legal system regardless of the circumstances of entry (something that the DOJ and the Administration actually have failed to respect in practice);
  • He also recognizes another truth that his Department often chooses to ignore — “Justice is not measured by statistics.” — Indeed, it is not — so why have mindless “quotas” that nobody working in or familiar with the system would have recommended? Why cite largely meaningless statistics about the number of individuals who would like to come here but never will?

But, there was also lots NOT to like:

  • Rosenstein mangles the oath of office; federal employees like Immigration Judges swear to uphold the Constitution against all enemies foreign and domestic — they DON’T swear to uphold or carry out the policies of the Attorney General (many of which have actually been found in violation of the law);
  • He creates a bogus “test” of “legal entry” as a demonstration of “fealty to our country;” there is no such equivalency or “second class citizenship.” — Although our system understandably often favors those who enter legally, there are a number of provisions that allow individuals who did not do so to eventually be granted citizenship, including those who are granted asylum; I am aware of no information that shows that manner of entry into the U.S. has any effect on one’s “fealty” or performance as a citizen; indeed, as a “native born U.S. citizen,” Rosenstein, like many of us, did nothing whatsoever personally to show his “fealty” or “earn” his citizenship — he was just lucky like we were;
  • Rosenstein keeps referring to “enforcement;” but Immigration Judges are NOT “law enforcement officers;” they are supposed to be fair and impartial quasi-judicial adjudicators; “enforcement” is the job of DHS and other parts of the DOJ (a glaring conflict of interest);
  • DHS officials are not the Immigration Judges’ “colleagues” to any greater extent than are lawyers in private practice or the individuals coming before the Immigration Courts; DHS is a “party” before the court and should be treated as such;
  • Rosenstein mis-states the history of our refugee laws. While the 1951 Convention was a response to World War II, the U.S. never became a party. We did sign the 1967 Protocol which was intended to update and expand the Convention and refugee law and move it beyond the immediate post-WWII aftermath. Our first codification of refugee and asylum law, the Refugee Act of 1980, was specifically intended to eliminate the types of ideological and geographical biases that had previously been a facet of our law; Rosenstein wrongfully implies that judges should interpret  refugee law with a focus on a bygone era rather than considering refugee law, in the dynamic, protection-oriented manner it was intended, in the contexts of today’s world, where persecution based on gender is one of the major refugee producing factors;
  • Rosenstein cites televideo as a helpful “innovation;” televideo is hardly new; but the often inept way in which it has been implemented and used by EOIR means that it often has actually fueled, rather than solved, “Aimless Docket Reshuffling” as shown in this very recent report from Beth Fertig at WNYC: https://immigrationcourtside.com/2019/03/15/beth-fertig-the-gothamist-mismanaged-immigration-courts-failed-technology-results-in-cancelled-hearings-more-aimless-docket-reshuffling-that-needlessly-impedes-due-process-ad/ Most of us who have actually worked in the system would say that while better televideo and a corps of “senior” and “reserve” judges might prove useful in many circumstances, they are least suitable and helpful for contested merits asylum cases;
  • Rosenstein neglects to mention the glaring failure of DOJ/EOIR to deliver on an even more important piece of technology for both the judges and the parties: e-filing which has been under development for nearly two decades without producing a functional product — a stunning piece of administrative incompetence by any standard and one that has helped contribute to the “Aimless Docket Reshuffling” that plagues this dysfunctional system;
  • Rosenstein use of the term “generous” to describe legal immigration policy under Trump is outrageous; in a time of a growing worldwide refugee crisis, this Administration has cruelly and irrationally reduced refugee admissions to the lowest rate since the enactment of the Refugee Act of 1980, while discouraging and placing bureaucratic roadblocks to discourage other forms of legal immigration, and intentionally misconstruing and perverting the law to make it more difficult for abused women from Central America to qualify;
  • Rosenstein fails to acknowledge that “forced migrants” are just that; they often enter illegally because they have little other choice, particularly when the Administration intentionally “slow walks” the applications of those who apply at legal ports of entry, forces those who have shown “credible fear” to remain in dangerous conditions in Mexico, and encourages smugglers to “turn in” individuals between ports of entry to avoid the Trump Administration’s short-sighted and arguably illegal policies;
  • Walls are not a symbol of strength as posited by Rosenstein; they are symbols of fear and loathing; in the USSR’s case it was directed at their own citizens; for the Trump Administration, walls are symbols of fear of Mexico, Mexicans, other Latin Americans, immigrants generally, and inferentially the real target — Hispanic citizens and all people of color in the U.S.;
  • Rosenstein’s final piece of jaw-dropping hypocrisy is to solicit solutions from the “new judges” to problems thrust on them by his Department’s malicious incompetence. Gimme a break, Rod! This Administration, like the last several, has made a point of ignoring any solutions generated from those who actually hear the cases in favor of those imposed to meet political goals that often undermine due process and judicial efficiency. Just ask the NAIJ how “receptive” the Trump DOJ has been to constructive suggestions. Ask almost any Immigration Judge about the idiotic and demeaning “case quotas” imposed on them over their objections. Moreover, this Administration has been “outed” in FOIA requests and court cases for  ignoring well-supported fact-biased recommendations of career civil servants with expertise in various fields in favor of a preconceived racist, White Nationalist, restrictionist political agenda. Save your breath and ideas folks, for a future time after we get some much-needed “regime change” and the return of rational, unbiased, solution-oriented administration of justice instead of ideologues and their apologists like Rosenstein.

Rosenstein is on his way out the door at the DOJ.  He’ll leave behind a mixed legacy. He’ll deserve great credit for protecting the Mueller investigation from Trump’s various attempts to interfere and compromise it. On the other hand, he drafted the infamous “pretext memo” which was part of the ultimately unsuccessful attempt to cover up Trump’s real real reason for firing FBI Director Jim Comey.

His failure to stand up for judicial independence, fairness, and due process for vulnerable individuals coming before our U.S. Immigration Courts and his continuing defense of the Administration’s indefensible and harmful White Nationalist immigration agenda will go down as one of his lesser moments.

America needs an independent Article I U.S. Immigration Court where judges act fairly and impartially and owe allegiance to the U.S. Constitution, not the Attorney General or any other political official.

PWS

03-18-19

 

 

DOJ SWEARS IN 31 NEW IMMIGRATION JUDGES WITHOUT ACKNOWLEDGING ITS ROLE IN CREATING AN UNMANAGEABLE BACKLOG! — Honesty & Admitting Own Mistakes Would Be A Prerequisite To A Rational Backlog Reduction Program! — Sessions Gone But System Remains FUBAR!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=7cb1d269-89ec-411d-ab01-e88041025ddf

Molly O’Toole reports for the LA Times:

WASHINGTON — A girl in a pink bow stood proudly center stage Friday at the Justice Department, dwarfed by two statues and adults in black judicial robes behind her.

“We need more judges,” quipped James McHenry, director of the executive office of immigration review, which administers the country’s clogged immigration courts. “We’re now recruiting children too.”

Thus went the ceremony for officials, family and friends to welcome 31 new immigration judges, the second-largest class ever.

The Trump administration has hired more immigration judges in two years than was done in the previous seven years, according to Deputy Atty. Gen. Rod Rosenstein, who plans to retire soon.

But the hiring surge is unlikely to resolve the backlog of nearly 830,000 immigration cases that continues to grow.

Rosenstein said the new judges — on top of 414 currently serving — will help cut the vast logjam.

“Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties,” Rosenstein said.

It will also depend on money. McHenry notified immigration court staffers last week that budget shortfalls had blocked the hiring of additional judges and would delay recruitment of court support staff, according to BuzzFeed.

The caseload worsened significantly during the 35-day government shutdown over President Trump’s demands for a border wall. About 400 immigration judges were furloughed, and tens of thousands of hearings were canceled or delayed, exacerbating delays that now exceed two years on average.

Amid continued fighting with Congress over immigration and border security funding, the White House has requested money for 100 additional teams of immigration judges for 2020.

Migrants routinely wait years for a final determination of whether they can stay in the country, according to a Homeland Security inspector general’s report released Thursday.

In contrast to regular U.S. courts, immigration courts are not in the judicial branch of government. The judges are classified as government attorneys at the Justice Department and they ultimately report to Atty. Gen. William Barr.

The Trump administration has prioritized deporting thousands of migrants in detention and preventing their release into the United States while they await court hearings.

But because of limited detention space and record numbers of asylum seekers and Central American families adding to the backlog, Trump officials have released some detained migrants.

Some administration policies also have proved counterproductive to reducing the backlog, according to some current immigration judges, former officials — and McHenry.

Boosting enforcement efforts without increasing resources for immigration courts “could seriously compromise” their “ability to address [the] caseload and greatly exacerbate the current state of the backlog,” McHenry wrote to Rosenstein in October 2017.

In a plan that officials said would reduce the backlog, the Justice Department at the time instituted a quota for immigration judges and forced them to reopen closed cases. The caseload grew by more than 230,000 new cases last year, however.

McHenry sought to steel the new judges on Friday, saying they were entering into “the most significant and emotionally charged debate over immigration for some time.” He even read out a “pause for tense laughter.”

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

Rosenstein continues to play the “blame shame game.” Because the Trump Administration and the DOJ have given “built to fail” and counterproductive enforcement “gimmicks” priority over fixing the glaring due process problems in Immigration Court, and because today’s Immigration Judges have been forced to function more like “gerbils in a wheel” than independent judicial officials, the backlog is likely to continue to grow no matter what the individual Immigration Judges do. Indeed, they have been stripped by this Administration of not only their dignity as judges but also the last vestiges of control over their own dockets.

To his credit, McHenry actually tried to tell his handlers at DOJ that some of their misguided, enforcement-driven, restrictionist “backlog reduction” efforts would make the backlog even worse. He was ignored. And, the backlog has exponentially increased under this Administration — more judges in the hands of an Administration dedicated to “malicious incompetence” in the field of immigration has simply resulted in more backlog.

The one thing that judges can still control — impartial professional due process in each individual case coming before them — has been buried by this Administration’s dishonest rhetoric and “just pedal faster” invectives. But, any Immigration Judge who wants to succeed in real life terms, save lives, sleep at night, and be remembered by history as part of the solution not the problem will largely “tune out” the DOJ’s highly disingenuous babble about that which they can’t control and concentrate instead on guaranteeing fairness and due process in each individual case coming before her or him.

PWS

03-17-19

“DOJ MISMANAGEMENT CENTRAL:” In Failing U.S. Immigration Courts, Political Interference & Idiotic Quotas Push 1.1 Million Plus Case Backlog Higher!

https://apple.news/ASsFWST9rQTSnqDmrVtuZ2Q

Immigration judges say quotas will increase backlog of cases

LOS ANGELES — Immigration judges say a new quota system threatens to increase an already overwhelming backlog of cases in U.S. immigration courts.

The system pushes for judges to close 700 cases a year and calls for them to be evaluated on that quota.

Immigration Judge Ashley Tabaddor said in a March 12 letter to lawmakers that the change would create a perception of government interference in the handling of cases that will lead more immigrants to file appeals.

Tabaddor, who heads the National Association of Immigration Judges, says the move could also flood federal courts with cases.

It can take years to get a decision in the immigration courts, which have more than 800,000 pending cases.

The letter followed testimony last week before a House subcommittee by James McHenry, who oversees the nation’s immigration courts.

A message sent to immigration court officials was not immediately returned.

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

Apparently, it’s going to take a complete collapse of not only the U.S. Immigration Courts but the entire Federal Judicial System (certainly on the horizon as the Immigration Courts’ systematic failure to provide expertise, impartial decision-making, Due Process, and fundamental fairness is pushing more and more cases into the Article III Courts). Unfortunately, to date, both Congress and the Article IIIs seem largely willing to watch disaster unfold, rather than taking the bold remedial action required to wrest the Immigration Court System out of the clutches of a spectacularly unqualified Department of Justice and reconstitute them as an independent court system where the standards of Due Process are taught, applied, and enforced!

In the meantime, lives are being needlessly, sometimes intentionally, endangered each day by our failure to live up to the U.S. Constitution!

PWS

03-14-19

 

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

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

Kate Smith reports for CBS News:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chairman Serrano Statement at Hearing on Executive Office for Immigration Review

March 7, 2019
Press Release

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

The subcommittee will come to order.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

03-12-19

GOVERNMENT BY MALICIOUS INCOMPETENTS: Trump Administration’s Latest “Backlog Reduction Plan” — Slow Down Hiring Of U.S. Immigration Judges & Support Staff — Abandon E-Filing (Again) — Barr Wins His First “Five Clown” Rating In Record Time! 🤡🤡🤡🤡🤡

https://www.buzzfeednews.com/amphtml/hamedaleaziz/trump-administration-immigration-judges-hiring-pause?__twitter_impression=true

Hamed Aleaziz reports for BuzzFeed News:

The Trump administration will pause its hiring of immigration judges, slow its procuring of support staff, and cancel a training conference, dealing a setback to the government’s efforts to cut down on a crushing backlog of cases, according to a Justice Department email obtained by BuzzFeed News.

James McHenry, director of the Executive Office for Immigration Review, notified immigration court staff in an email Wednesday morning, advising that the timing of the 2019 budget process has left them “considerably short of being able to fulfill all of our current operational needs.”

McHenry cited increases in costs related to transcriptions, operational needs, and interpreters.

“This challenging budget situation has led us to a position where difficult financial decisions need to be made,” wrote McHenry.

As a result of the funding issues, McHenry said, the court does not “anticipate” it will be able to hire additional judges after an already scheduled class of judges is brought on board in April. The budget costs will also impact the court’s hiring of 250 attorneys needed to support immigration judges.

The pause on hiring delivers a blow to an administration that has long complained that the immigration court backlog, which has increased in recent years to more than 800,000 cases, has led to wait times stretching months and years.

The budget signed by President Trump this year had been described as a way for the immigration court to hire an additional 75 immigration judge teams.

A Department of Justice official, Steven Stafford, disputed the notion it would freeze hiring, arguing that it was simply not continuing to hire judges at the same pace. McHenry noted that the administration had hired 174 new immigration judges in the last two years and now has more than 400 judges on staff.

Rebecca Blackwell / AP

A migrant family enters the US near Imperial Beach, Calif., after squeezing through a small hole under the border wall.

The news comes a day before McHenry is set to speak before the House Appropriations Committee and as the court withstands criticisms from the union that represents immigration judges and moves to increase productivity, including quotas.

In recent months, many judges, who oversee asylum claims and deportation cases, have retired or resigned citing interference in how they were handling cases.

“This administration has justified so many of their more draconian policies in terms of ‘we have got to lower the backlog’ and then all of a sudden they don’t have the funds to hire more immigration judges,” said Jeffrey Chase, a former immigration judge. “If their true goal is to provide fair adjudications more quickly, then this is inconsistent with that. More people will wait longer.”

The nationwide rollout of a new online filing system, meant to help improve efficiency, will be frozen, McHenry said, and additional delays on new court spaces will also be possible this year.

“We are doing our best at headquarters to ensure that our funds are spent in the most fiscally responsible manner possible,” he said in the email to staff, “while consistently meeting the needs and mission of the agency.”

Quick takes:
  • Duh! Who would have thought that hiring more judges would require more interpreters, transcripts, and “operational support.” Certainly not the geniuses at DOJ/EOIR;
  • After 18 years of fruitless effort, DOJ/EOIR fail yet again to deliver on e-filing (in and of itself enough reason to get this out of DOJ and “can” the EOIR ineffective management structure);
  • Apparently, building largely useless walls and wasting money on troops at the border are more important “priorities” for reducing the backlog than actually hearing and deciding cases;
  • Court morale is already at an all time low — this ought to send it even lower;
  • Count on this touching off yet another round of EOIR’s renowned “Aimless Docket Reshuffling” and more vicious and disingenuous “Victim Blame Shaming;”
  • Bad start for new AG Bill Barr — Sessions “set the bar on the ground,” but you still might not get over it;
  • On the bright side, since in the “wacky incompetent world” of DOJ/EOIR more judges actually = more backlog, perhaps fewer judges will = less backlog.

The Immigration Court system is a farce, and EOIR doesn’t have the faintest idea of how to fix it (nor does anyone else in the Trump Kaksitocracy for that matter). Unfortunately, lives are at stake here. To quote Casey Stengel again: “Can’t anyone here play this game?”

TODAY’S FIVE CLOWN AWARD GOES TO RECENTLY APPOINTED AG BILL BARR — SELDOM HAS SOMEONE LOOKED SO STUPID WITHIN SUCH A SHORT TIME OF TAKING AN OFFICE (THAT HE PREVIOUSLY HELD):

🤡🤡🤡🤡🤡

PWS

03-07-19

GW CLINIC REPORT: Justice Finally Triumphs — 7-Year Battle On Behalf Of Abused Refugee Woman Succeeds!

Paulina Vera, Esq.; Professor Alberto Benitez; Rachel Petterson

Friends,
Please join me in congratulating S-P-G-G, from El Salvador, whose asylum application was granted by IJ David Crosland on February 26.  We received the decision today.  When told of the grant, S-P-G-G screamed.  She can start the process of bringing her minor son to the USA.  Please also join me in congratulating Rachael Petterson, Julia Navarro, Solangel González, Chen Liang, Xinyuan Li, Abril Costanza Lara, Allison Mateo, and Paulina Vera, who worked on this case.
The IJ found that S-P-G-G warranted humanitarian asylum because she established compelling reasons arising from the severity of her persecution.  Among other things, she had been raped by her sister’s ex-boyfriend, which resulted in her becoming pregnant, and giving the child up for adoption.  S-P-G-G testified that she experiences recurring nightmares, suicidal feelings, a sense of hopelessness, and fear as a result of her persecution.
FYI.  The client’s initial hearing was on December 18, 2012, IJ Crosland denied asylum, she appealed to the Board of Immigration Appeals (BIA), which remanded to the IJ, he denied asylum again, she appealed to the BIA, which denied asylum, she appealed to the 4th Circuit Court of Appeals, which remanded to the IJ, and he finally granted asylum on February 26.
**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
************************************
Congrats to SPGG and her wonderful team at the GW Immigration Clinic! More than six years of litigation, two wrongful denials, two appeals to the BIA, one incorrect BIA decision, and a remand from the Fourth Circuit before justice was finally done.
Illustrates four things:
  • The absolute BS of those like Sessions and other restrictionists who say asylum cases can be raced through the system on an assembly line;
  • The further BS of claiming that asylum applicants and their lawyers are “gaming” the system when many delays, like this, are caused by poor anti-asylum decision-making within EOIR combined with the DOJ’s incompetent administration of the Immigration Courts;
  • The importance of full appellate rights, including review by a U.S. Court of Appeals that is actually an independent, fair, and impartial court, not a Government agency masquering as a court;
  • The absurdity of claiming that unrepresented asylum seekers can receive anything approaching Due Process in the EOIR system, particularly when they are held in inherently coercive “civil immigration detention.”

What if we had a fair, expert Immigration Court system that made every effort to do right by asylum seekers in the first instance by interpreting and applying the law in the generous and humanitarian manner to protect those in need as originally intended in the Refugee Act of 1980 and described by the Supremes in Cardoza-Fonseca?

What if we had a Government that cared about Due Process and worked to promote it rather than attempting to whack it out of shape to screw the most vulnerable among us at every opportunity?

What if the emphasis in the Immigration Courts was on fairness, scholarship, respect, and teamwork with all concerned (not just “partnership” with the prosecutor and politicized Administration goals) rather than on “haste makes waste” methods and gimmicks.

Hey, we could have a working court system where justice was served and more things got done right in the first place, instead of the disgraceful mess that EOIR has become under DOJ’s highly politicized mismanagement!

PWS

03-07-19

PARENTS VICTIMIZED BY SESSIONS’S CHILD ABUSE RETURN TO BORDER SEEKING THEIR CHILDREN, JUSTICE, & MERCY FROM A SYSTEM RUN BY THOSE WHO MOCK THE CONCEPTS! — Abusers Escape Accountability While Victims Continue To Suffer!

https://www.washingtonpost.com/world/the_americas/29-parents-separated-from-their-children-and-deported-last-year-arrive-at-us-border-to-request-asylum/2019/03/02/38eaba7a-2e48-11e9-8781-763619f12cb4_story.html

Kevin Sieff and Sarah Kinosian report for the Washington Post:

Twenty-nine parents from across Central America who were separated from their children by U.S. immigration agents last year crossed the U.S. border on Saturday, demanding asylum hearings that might allow them to reunite with their children.

The group of parents quietly traveled north over the past month, assisted by a team of immigration lawyers who hatched a high-stakes plan to reunify families divided by the Trump administration’s family separation policy last year. The 29 parents were among those deported without their children, who remain in the United States in shelters, in foster homes or with relatives.

At about 5 p.m. local time, the families were taken to the U.S. side of the border by immigration agents, where their asylum claims will be assessed.

Although the Trump administration’s family separation policy has prompted congressional hearings, lawsuits and national protests, the parents have for nearly a year suffered out of the spotlight at their homes in Honduras, Guatemala and El Salvador. They celebrated birthdays and Christmas on video calls, trying to determine whether their children were safe.

Now, they will pose a significant test to the embattled American asylum system, arguing that they deserve another chance at refuge in the United States, something rarely offered to deportees.

Before the Trump administration, families had never been systematically separated at the border. And before Saturday, those families had never returned to the border en masse.

More than 2,700 children were separated from their families along the border last year, according to the Department of Health and Human Services. About 430 of the parents were deported without their children, and at least 200 of them remain separated today. Some waited in the hope that U.S. courts would allow them to return to the United States. Others paid smugglers to get them back to the border. Then came Saturday’s confrontation.

The group of parents walked toward the border here, flanked by local religious officials, and then waited at the entrance to the United States as the lawyers negotiated with U.S. officials. The parents sat on wooden benches, surrounded by their luggage, while officials decided how many of the parents to allow into the country.

Over the past three weeks, the parents stayed in a Tijuana hotel, sharing rooms and preparing for asylum hearings. They showed one another documents that their children had sent them: photos of foster families and report cards from Southwest Key, a company that runs shelters for migrant children.

A woman explained through tears how her daughter had tried to kill herself while in government custody. A man spoke about trying to communicate with his daughter, who is deaf, over a shelter’s telephone. Others carried bags full of belated Christmas gifts for their children.


José Ottoniel, 28, from Guatemala, at the Hotel Salazar in Tijuana, Mexico. Ottoniel was separated from his 10-year-old son, Ervin, and deported. (Carolyn Van Houten/The Washington Post)

Many of the parents, like José Ottoniel, from the tiny town of San Rafael Las Flores, Guatemala, said they had been pressured into signing deportation papers after being separated from their children, before they could begin their asylum claims. When he returned home after being deported in June, Ottoniel was told that his 10-year-old son, Ervin, was still in the United States at a shelter.


Ottoniel and Ervin are seen in a picture taken on Sept. 15, 2017, Guatemala’s independence day. (Daniele Volpe/for The Washington Post)

The family chose to keep Ervin in the United States with an uncle, rather than forcing him to return to the violence and poverty of their home village. It was a wrenching decision that Ottoniel’s wife, Elvia, who had remained in Guatemala when Ottoniel had tried to cross the border, eventually decided she couldn’t live with. In January, she paid a smuggler $8,000 to travel to the United States to reunite with Ervin in Arkansas, applying for asylum in South Texas.

A few days later, Ottoniel received a call from an American immigration lawyer with the Los Angeles-based legal advocacy group Al Otro Lado, which means “to the other side.” The attorney asked him if he was willing to travel the 2,500 miles from his village to the U.S.-
Mexico border to deliver himself once again to immigration agents.

Al Otro Lado had received more than a million dollars in financial assistance from organizations such as Families Belong Together and Together Rising, which mounted fundraising campaigns in the midst of the government’s separation policy. The lawyer told Ottoniel that the organization would pay for his buses, flights and hotels.

“At that point, we were already seeing some of these parents paying smugglers to bring them back to the U.S.,” said Erika Pinheiro, litigation and policy director for Al Otro Lado, which had interviewed deported parents from across Central America who feared for their lives because of violence in their home countries. “We needed to provide them with another option.”

For Ottoniel, who referred to his family as “disintegrated,” it seemed his best shot at a reunion.

“It was a chance to see my son again. How could I say no?” he said.

Ottoniel and other parents converged at a three-story hotel in Tijuana,where lawyers told them to remain quiet about their plans. They rehearsed how they would address U.S. immigration officials. They watched telenovelas. At night, they called their children across the border.

There was Luisa Hidalgo, 31, from El Salvador, whose daughter, Katherinne, 14, is in the Bronx with a foster family. The girl texted her mother the same words over and over: “Fight for me.”

Luisa Hidalgo, 31, from El Salvador, displays a jewelry box she purchased to give her daughter when they reunite. (Carolyn Van Houten/The Washington Post)

Hidalgo sits for a portrait Feb. 14 in Hotel Salazar. (Carolyn Van Houten/The Washington Post)

There was Antolina Marcos, 28, who said she fled Guatemala after gangs began killing members of her family. She was separated from her 14-year-old daughter, Geidy, in May. “How can I live when she’s so far away?” Marcos said.

There was Santos Canelas, 44, who said he fled Honduras with his 16-year-old daughter, Merin, in May after gang members threatened to sexually assault her. She is living in New Orleans with a cousin. “Without my daughter, I’m dead inside,” he said.

In most of the 2,700 cases from when the Trump administration separated families at the border last year, both the parents and children remained in the United States, sometimes held in shelters and detention centers thousands of miles apart. Almost all of those families have now been reunified and are in the process of pursuing their asylum claims.

But the cases of about 430 parents deported without their children were particularly difficult. Often, the government lost track of which child belonged to which parent, and it did not link their immigration cases, sending parents back to Central America without telling them where their children were.

In some of those cases, parents later made the painful decision to leave their children in the United States, typically with relatives, rather than bringing them back to the violence and poverty from which the families fled. In other cases, the U.S. government determined that the parents were unfit to receive their children, often based on their criminal records.

Pablo Mejia Mancia, 53, from Honduras, was separated from his 10-year-old daughter, Monica, when they crossed the border in Reynosa, Mexico. Monica was detained for 3½ months. (Carolyn Van Houten/The Washington Post)

Santos Canelas, 45, from Honduras, was separated from his daughter Merin, 16, who was detained for five months. Back home, gang members had threatened to rape his daughter. (Carolyn Van Houten/The Washington Post)

After Trump signed an executive order officially ending the family separation policy on June 20, lawyers launched a legal battle to reunify many of the deported parents and their children in the United States. The American Civil Liberties Union filed a lawsuit demanding that the government allow 52 parents back into the United States to pursue their asylum claims, which the lawyers argued had been stymied after the parents were separated from their children at the border.

But the government has not responded to that appeal and later said it needed more information about the parents from the ACLU. It remains unclear when, or if, the U.S. government will invite those parents back to the United States to launch new asylum claims.

“The government has resisted bringing anyone back who was separated and deported without their kids,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project. “We hope the government will take a fresh look at these cases.”

But as the government declined to articulate any plan to reunify the families, Pinheiro decided waiting much longer would put the parents at risk. Some had relocated to a safe house in Guatemala City to escape threats in El Salvador and Honduras. Some had already been without their children for more than a year, and those separations were taking a psychological toll.

“We gave them the option — you can wait for the court process, or you can do it this way,” Pinheiro said. Al Otro Lado worked with the ACLU to identify the separated parents in Central America, but the ACLU was not involved in bringing the 29 parents back to the border.

With few other options, Pinheiro said, almost every parent she approached accepted her offer. The parents first gathered in the Guatemalan city of Tecun Uman before crossing into Mexico with humanitarian visas that Al Otro Lado helped arrange. They flew to Mexico City and then to Tijuana, eventually taking a bus to Mexicali.

“We’re traveling back to the border where we lost our children in the first place,” said Pablo Mejia Mancia, 53, of Honduras, who was separated from his daughter, who is now 9 years old, when they crossed the border into Texas in May.


Antolina Marcos said she fled Guatemala after gangs began killing members of her family. She was separated from her 14-year-old daughter, Geidy, in May. (Carolyn Van Houten/The Washington Post)

It’s likely that some of the parents could be detained for months if the government decides to process their asylum claims. The U.S. policy of forcing asylum seekers to wait in Mexico has not yet been put into practice in Mexicali.

“They’re standing right at the border, preparing to reenter a system that traumatized their families months earlier,” Lindsay Toczylowski, executive director of the Immigrant Defenders Law Center, who counseled the parents in Tijuana, said before the parents crossed into the United States. “It says a lot about what they’re fleeing, and what they lost.”

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Folks, we don’t have to look much further than Michael Cohen’s testimony (even if every word isn’t absolute truth), the House Judiciary GOP’s disgusting “head in the sand” performance, and Trump’s totally deranged two-hour litany of lies, distortions, fabrications, and White Nationalist myths before a deliriously giddy audience at CPAC this weekend to see that our country is in deep trouble. 

Four out of ten voters and a major party just don’t care if we’re “led” by a congenital liar, racist, and suck-up to the world’s worst dictators, who lacks any trace of human empathy, an essential ingredient for governing for the common good.

In the meantime, your tax dollars are being spent on misguided, wasteful, and counterproductive “immigration enforcement” and a failed Immigration Court system that no longer prioritizes Due Process and fundamental fairness. Never forget that the damage already done to these families and children might well be irreparable and that we are responsible as a nation for the atrocities, deceptions, and mindless cruelty carried out by Trump and his minions in our name. Yes, as these pictures by Carolyn Van Houten show, there are real human beings out there, decent people much more like us than we might choose to believe, who are suffering because of what our Government has become.

It could be a long uphill fight to save our republic.  But, that’s what the New Due Process Army is fighting to do every day!

PWS

03-03-19

ABA PRESIDENT BOB CARLSON PUTS DUE PROCESS CRISIS IN IMMIGRATION @ TOP OF HIS “MUST DO” LIST — Independent Article I U.S. Immigration Court & More Legal Representation Are The Keys!

http://www.abajournal.com/magazine/article/immigration-matters-fair-process

Immigration Matters: A fairer process is needed for those seeking entry to the United States

Print.

Robert Carlson

Photo of Bob Carlson by Tom Salyer

“Give me your tired, your poor, your huddled masses yearning to breathe free.”

These words from an Emma Lazarus sonnet, engraved on a plaque on the pedestal of the Statue of Liberty, are not policy or law. Yet they embody the ideals and spirit of America, a land of immigrants.

Despite the countless ways that immigrants have advanced our country and have helped to fuel innovation and growth, the United States cannot welcome everyone who yearns to breathe free. Our nation needs to regulate and control immigration, have secure borders and keep people safe. But developing clear, comprehensive, practical and humane immigration law is possible—and long overdue.

Policies that separate children from their parents or deny legitimate asylum-seekers due process violate both our values and established law. The ABA has made this clear in a letter sent to the U.S. Attorney General and Secretary of Homeland Security. The ABA has suggested guidelines and compiled thoughtful and well-researched publications such as the recently updated “Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States.”

While crafting comprehensive immigration law in a divided society can be difficult, it is imperative. One place to start is immigration courts.

An independent judiciary is a hallmark of our democracy. It encompasses the principle that all people are entitled to fair and impartial legal proceedings where important rights are at stake. Immigration courts decide issues that are life-altering.

Immigration courts, however, lack the safeguards that other parts of our justice system have. Structural and procedural issues have resulted in a backlog of more than 800,000 cases even though in recent years Congress has added resources, including a sizable increase in the number of judges and support staff.

Immigration courts currently exist within the Justice Department. Their personnel and operations are subject to direct control of the attorney general. Immigration judges can be removed without cause and can be at the mercy of whatever policy the attorney general wants followed. It can change from administration to administration. This structure creates a fatal flaw to an independent, impartial judiciary.

Restructuring the immigration adjudication system into an Article I court is the best solution to promote independence, impartiality, efficiency and accountability. Article I legislative courts are established by Congress, and judges would only be subject to removal for cause and not without judicial review. The U.S. Tax Court—where judges are nominated by the president, confirmed by the Senate and serve terms of 15 years—could act as a model. The idea has been endorsed by the National Association of Immigration Judges for more than two decades. The ABA adopted policy in 2010 calling for the creation of Article I immigration courts.

Another problem is representation. Access to counsel and legal information are critical in ensuring fairness and efficiency in the immigration system, yet only 37 percent of people in removal proceedings and just 14 percent of those detained are represented by counsel. The odds of winning an asylum case without legal representation are one in 10 while those with a lawyer win nearly 50 percent of their cases.

The ABA supports the right to appointed counsel for vulnerable populations in immigration proceedings, such as unaccompanied children, and mentally ill and indigent immigrants. Budgetary challenges make this unlikely to happen soon, so access to as much information about the process is critical.

The ABA, supported by its Commission on Immigration, will continue to advocate for fairness and full due process for immigrants and asylum-seekers in the United States and ensure an equitable, effective process for adjudicating immigration cases. This serves the interest of both the government and individuals within the system.

Our efforts to solve the problems must not undermine the fundamental principles that exemplify America and our justice system. Welcoming immigrants has been a strength of America since its founding.

As President George Washington said: “The bosom of America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.”

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I testified before the ABA Commission on Immigration about the “Due Process Crisis in Immigration Court,” the need for an Article I Court, the requirement for more lawyers, and the absolute Due Process disaster engendered by the intentionally misguided policies of the Trump Administration as they related to the abusive, counterproductive, and disingenuous use of the Immigration Courts as a branch of DHS Enforcement. The massive failure of Due Process in the U.S. Immigration Courts, the “retail level” of our justice system, threatens the individuals rights of all of us!

PWS

03-03-19

GREAT NEWS ON THE SIJ FRONT: Legal Aid & Justice Center Reports Major Legislative Change To Help Endangered Juveniles in Virginia — PLUS BONUS COVERAGE: Dan Kowalski Reports On New SIJ Legislative Victory in Colorado! — It’s The “New Due Process Army” In Action Across The Country!

THREE OF THE “DUE PROCESS WARRIORS” FROM THE LEGAL AID & JUSTICE CENTER OF VIRGINIA:  Amy Woodard, Tanishka Cruz, & Simon Sandoval-Moshenberg

For Immediate Release

Contact:            Amy Woolard, (434) 529-1846, amy@justice4all.org

Simon Sandoval-Moshenberg, (703) 720-5605, simon@justice4all.org

NEW VIRGINIA LAWS HELP IMMIGRANT CHILDREN SEEK PROTECTION FROM ABUSE, NEGLECT, AND ABANDONMENT

RICHMOND: On Friday, February 22, the Virginia General Assembly passed SB 1758 and HB 2679, identical bills that will aid immigrant children fleeing abuse, neglect, and abandonment in their home countries in seeking protection from deportation in Virginia.

Across the country, many immigrant children and DREAMers facing deportation proceedings seek a form of immigration relief called “Special Immigrant Juvenile Status” (SIJS). SIJS is unique in that it requires a state court to issue a certain type of order before the child may even attempt to seek SIJS relief from the federal government. In a 2017 case called Canales v. Torres-Orellana, brought by the Legal Aid Justice Center, the Virginia Court of Appeals sharply restricted state judges’ ability to issue these orders, leaving hundreds of Virginia immigrant children without protection. Virginia became one of the most difficult states in the nation to obtain SIJS.

During this year’s General Assembly session, Legal Aid Justice Center worked closely with legislators and the Governor’s office to pass these bills, which would overturn the Canales case and restore Virginia immigrant children’s ability to apply for SIJS. The bills also address the needs of other children before the juvenile courts, easing the way for any Virginia child to seek a state court’s assistance in proving eligibility for other benefits such as adoption assistance, TANF assistance, and timely public school enrollment.

SB 1758 was introduced by Sen. Scott Surovell (D-Mount Vernon). HB 2679 was introduced by Del. Marcus Simon (D-Falls Church). The bills initially took different approaches to fixing this issue, and each passed their respective chambers with an overwhelming bipartisan majority of votes. The bills were then placed into committees of conference in an attempt to gain consensus, and identical bills emerged that combined the approach of both; they garnered unanimous support in the House, and only two dissenting votes in the Senate. The bills now go to Governor Northam’s desk for his signature; once signed, they will take effect on July 1 of this year. The conference report with bill text is available at: http://leg1.state.va.us/cgi-bin/legp504.exe?191+ful+SB1758S1+pdf

“Immigrant children in Virginia can breathe a little more easily now,” said Simon Sandoval-Moshenberg, Legal Director of Legal Aid Justice Center’s Immigrant Advocacy Program. “Our agency has represented over 150 children fleeing truly horrific situations of abuse or neglect in their home countries. Fairness dictates that they be afforded the same rights as immigrant children in any other state. Now these new DREAMers will be able to seek protection and apply to remain in the United States with green cards.”

“This excellent result could not have come about without the leadership and hard work of Senator Surovell and Delegate Simon, and the support of Governor Northam’s administration,” said Amy Woolard, Legal Aid Justice Center Attorney and Policy Coordinator. “Virginia’s Juvenile and Domestic Relations courts should exist to protect the best interests of all children in the Commonwealth, and these bills will now make clear that is true for immigrant children seeking safety through SIJS, as well.”

“The United States has a long history of protecting abused, neglected, and abandoned children, and the Commonwealth will continue to play its part,” said Sen. Surovell. “These bills will clarify and restore Virginia courts’ authority to make factual findings necessary to protect children fleeing abuse, neglect, and abandonment from abroad, and I appreciate the broad bipartisan support of legislators who saw this as consistent with Virginia’s longstanding values.”

“I’m so pleased we were able to pass this important legislation to give our courts the authority they need to be able help some of the most vulnerable and powerless people in our Commonwealth,” said Del. Simon. “It is so important that we not let victims of abuse, neglect, and often abandonment fall through the cracks because of a technical deficiency in our code. Those are the common sense problems we are elected to come down here and fix.”

A downloadable PDF of this statement may be accessed here.

# # #

Legal Aid Justice Center is a statewide Virginia nonprofit organization whose mission is to strengthen the voices of low-income communities and root out the inequities that keep people in poverty. We provide legal support to immigrant communities facing legal crises and use advocacy and impact litigation to fight back against ICE enforcement and detention abuses. More information is available at http://www.justice4all.org/.

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And, here’s the latest from the fabulous Dan Kowalski, “Chief Immigration Guru” at LexisNexis Immigration Community:

Thanks to the efforts of the Rocky Mountain Immigrant Advocacy Network (“RMIAN”).

 

Passage of HB19-1042: Extension of State Court Jurisdiction for Vulnerable Youth 

RMIAN is thrilled to announce the passage of House Bill 19-1042 through the Colorado House and Senate. The bill was sponsored by Representative Serena Gonzales Gutierrez and Senator Julie Gonzales and is now awaiting signature by Governor Polis. This bill will allow immigrant youth who have been abused, neglected, and abandoned to gain access to Colorado State courts for necessary protection and care, and to establish their eligibility for federal immigration relief. Ashley Harrington with RMIAN Children’s Program helped to craft this important legislation with Representative Gonzales Gutierrez, Senator Gonzales, Denise Maes with the ACLU of Colorado, Kacie Mulhern with the Children’s Law Center, Ashley Chase from the Office of the Child’s Representative, Katie Glynn with Grob & Eirich, and Bridget McCann, a RMIAN pro bono family law attorney. Celebrating the law’s passage today Ashley Harrington says, “I am so proud and honored to have been a part of making this law a reality that will impact the lives of many vulnerable immigrant children and ensure that they can find safety and stability in Colorado.”

Denise Maes, Ashley Harrington, Senator Gonzales, Representative Gonzales Gutierrez, Katie Glynn and Kacie Mulhern at the Capitol 3/1/19.

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Compare this with the Trump Administration’s cruel and shortsighted efforts to mindlessly restrict the scope of these important SIJ protections for some of our most vulnerable youth. Here’s my recent blog featuring WNYC’s Beth Fertig reporting on the Federal Judge’s adverse reaction to the DOJ’s disingenuous arguments “in defense of the indefensible” in his court. Talk about abuse of our court system by our Government! https://immigrationcourtside.com/2019/02/27/beth-fertig-wnyc-federal-judge-tires-of-administrations-absurdist-legal-positions-in-court/

SIJ cases also have the huge benefit of being processed outside the clogged U.S. Immigration Court asylum system, thus keeping many cases out of the largely artificially created “backlog” that is handicapping Due Process in Immigration Court.

There are many ways of using and building on current laws to make the immigration and justice systems work better. It’s a national disgrace that the Trump Administration isn’t interested in Due Process, fairness, or making our immigration system function in a more rational manner.

The good news: Eventually, the small minds, incompetence, and “radical White Nationalism” of this Administration and its enablers will be replaced by smarter, wiser, more capable folks like those in the LAJC, the RMIAN, and other members of the New Due Process Army. These are the folks who someday will lead us out of today’s darkness into a brighter and more enlightened future for all Americans!

PWS

03-02-19-

SYSTEMIC FAILURE: 9TH Circuit’s Most Recent Reversal Of BIA Demonstrates Disturbing Lack Of Basic Judicial Competence At All Levels Of EOIR – But, Even The 9th’s Rebuke Misses The Real Point – There Can Be No Due Process In Complex Cases Of This Type Without Legal Representation! – Arrey v. Barr

Arrey v Barr — 9th — Firm Resettlement

Arrey v. Barr, 9th Cir., 02-16-19, Published

SUMMARY BY COURT STAFF:

The panel granted in part a petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Cameroon, and remanded.

The panel rejected petitioner’s contention that she was deprived of her due process right to a full and fair hearing based on the denial of her right to retained counsel and an unbiased fact finder. The panel held that the IJ in this case provided petitioner reasonable time to locate an attorney, where the IJ provided several continuances so she could do so, warned her repeatedly that he would not grant further continuances, and attempted to call her attorney when he failed to appear on the day of her merits hearing. The panel also held that although the IJ was rude and harsh with petitioner, petitioner failed to establish that the IJ’s conduct prejudiced her, where the IJ held a complete hearing and made a thorough decision that fully examined the underlying factual matters, and any potential prejudice caused by the IJ’s questionable adverse credibility determination was cured by the Board’s subsequent decision assuming the credibility of petitioner’s testimony in full.

The panel held that the Board committed three legal errors in its application of the firm resettlement bar, which precludes asylum relief if an applicant was firmly resettled in another country prior to arriving in the United States. First, the panel held that the Board erred by failing to consider whether the conditions of petitioner’s offer of resettlement in South Africa were too restricted for her to be firmly resettled. Second, the panel held that the Board erred by applying the firm resettlement rule not as a mandatory bar to petitioner’s asylum claim, but instead as a limitation on the evidence the Board considered in support of her claim for relief from removal to Cameroon, thus causing the Board to improperly ignore evidence of the abuse petitioner suffered in Cameroon before fleeing to South Africa, as well as evidence of the nature of her relationship with her abuser. Third, the panel held that the Board erred by applying the firm resettlement bar to petitioner’s withholding of removal claim, which is not subject to the firm resettlement bar.

Turning to petitioner’s CAT claim, the panel held that substantial evidence did not support the Board’s determination that petitioner could avoid future harm through internal relocation in Cameroon.

The panel remanded petitioner’s asylum, withholding, and CAT claims for further proceedings consistent with its opinion.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

 

PANEL: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block,* District Judge.

* The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation.

OPINION BY:  Judge Gould

KEY QUOTE:

Petitioner Delphine Arrey petitions for review of the Board of Immigration Appeals’ (“BIA” or “Board”) decision dismissing her appeal of an immigration judge’s (“IJ”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We conclude that the IJ did not deny Arrey her due process rights to counsel and an unbiased factfinder. As to Arrey’s asylum and withholding of removal claims, we conclude that the Board erred as a matter of law in its analysis and application of the “firm resettlement” rule. As to Arrey’s claim for relief under CAT, we conclude that substantial evidence does not support the Board’s determination that Arrey could safely relocate in another area of Cameroon. We grant the petition in part and remand for reconsideration of Arrey’s claims consistent with our opinion.


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Even the 9th Circuit “blew” the fundamental issue here: No matter how annoying the respondent’s conduct might have been, there was no way to conduct a fair hearing in a case of this complexity without counsel present.  

From this recitation of facts, it’s pretty obvious that the respondent had no idea what “firm resettlement” was or how the process for proving or disproving it worked. Going ahead with the hearing created a miscarriage of justice that simply wasted time by going all the way the 9th Circuit and then being returned for competent judicial adjudication applying the correct standards. Haste makes waste.

And the overwhelming backlog that obviously was on the judge’s mind here was not created by this respondent and her attorney; no, it primarily results from “aimless docket reshuffling,” poor administration, Congressional neglect, and “designed to fail policies” by politicos in the DOJ (under the improper and unethical political influence of the DHS) which went into “overdrive” under Sessions.

Getting to the merits, beyond apparently correctly setting forth the respondent’s name and “A number,” the Immigration Judge and the BIA got largely everything else in this case wrong! The basic errors range from a “clearly erroneous” adverse credibility ruling, to a legally incorrect standard for “firm resettlement,” to an idiotically nonsensical ruling that “threats and one attempted assault of rape” did not “rise to the level of persecution” (cases involving these facts were routinely granted by the BIA during my tenure and, to my knowledge, were uniformly granted by IJs in Arlington; indeed, I can’t even imagine an ICE Assistant Chief Counsel during my tenure in Arlington arguing the contrary), to wrong evidentiary determinations, to another completely nonsensical finding on internal relocation.

In other words, this was a “rubber stamp” by BIA “judges” of a staff attorney’s writeup with canned “any reason to deny” language. It was not a fair and impartial adjudication by an “expert” group of appellate judges.

Far from it. If a student had turned this in as an exam answer to a hypothetical case on my Georgetown Law final exam, it would have received “zero credit.” So, how is it “OK” to have a system where individuals in what are supposed to be senior judicial positions, requiring great expertise in immigration, asylum, and human rights law, perform in a manner that would have been deemed unacceptable for L2s and L3s?

It isn’t; and it’s up to the Article III Courts and Congress to get some backbone and some integrity and put an end to this travesty. Yeah, this is “only one case.” But, it involves a human life. Cameroon is a horrible country; credible Cameroonian asylum cases were routinely granted in the Arlington Immigration Court, normally without appeal by ICE.

And for every case where a respondent is lucky enough to get a “Court of Appeals intervention,” dozens of individuals, many without lawyers or the faintest knowledge of what’s happening, are “railroaded” through this fundamentally unfair and constitutionally defective system. This, rather than the bogus wall, or an influx of desperate refugee families seeking asylum, is our true “national emergency” involving immigration: The disdain by our current Administration for the rule of law, human rights, judicial quality, simple human decency, and Due Process of Law under our Constitution! 

Congrats to Attorney Ron Richey, an “Arlington Immigration Court regular,” who appeared before me many times, for fighting for due process and justice in another jurisdiction. You are an inspiration to all of us in the “New Due Process Army!”

PWS

03-01-19

THE ASYLUMIST FINDS “MIXED BAG” IN U.S IMMIGRATION COURT DETAINED UNREPRESENTED ASYLUM CASES: Most U.S. Immigration Judges (& ICE Assistant Chief Counsel) Apparently Conduct Themselves Professionally, But Detained Unrepresented Asylum Seekers Are Being Systematically Denied Due Process — “[M]any of these pro se cases are not well developed and are lacking in evidence. This is because the cases we review are for individuals who are detained. If these people had access to a lawyer and could better prepare their cases, many—even most—would achieve a better outcome.”

http://www.asylumist.com/2019/02/25/when-the-judge-is-a-jerk/

Jason Dzubow writes:

The vast majority of Immigration Judges, DHS attorneys, Asylum Officers, and USCIS officers are professional and respectful. But what if they are not? What do you do then?

First off, I think it is important to understand that the bad officials are a small minority. I’ve been to many interviews and court hearings, and I’ve only ever made one complaint (against a USCIS officer at a Green Card interview). In other words, at least in my experience, government officials in immigration-world are generally pretty good.

Now admittedly, I am a lawyer and I know my clients’ rights and what to expect from “the system.” Pro se (unrepresented) applicants may not receive the same level of respect. They are easier to abuse, and it is more likely that decision-makers will cut corners in cases where the applicant is unable to protect herself.

That said, I am also involved in the BIA Pro Bono Project, where I review a dozen or so unrepresented appeals cases each month. I see the transcript of the Immigration Court case, and I can read how the Immigration Judge and the DHS attorney treated the applicant. While it is fairly common to see Judges and DHS attorneys moving quickly through a pro se hearing, it is also common to see these same officials taking extra time to ensure they are properly adjudicating the case. Once in a while, I see a case where the Judge steamrolled the proceedings to reach a quick decision, but that is the exception. In most cases, even those that were adjudicated quickly, the outcome seems fair, given the available evidence and testimony (one big caveat – many of these pro se cases are not well developed and are lacking in evidence. This is because the cases we review are for individuals who are detained. If these people had access to a lawyer and could better prepare their cases, many—even most—would achieve a better outcome).

The government takes your complaints very seriously.

While outright hostility and rule breaking seem quite rare, adjudicators can sometimes be testy, intimidating or unfriendly. What to do if you have the bad luck of encountering a hostile or impolite decision-maker?

The first thing to do is to remain calm. The demeanor of the decision-maker is often unrelated to the outcome of the case, and we have seen examples where an unfriendly officer issues a positive decision. Remember too that this person is not someone you will likely ever encounter again in your life. All you want from him is a favorable decision. Even if your experience at the interview is unpleasant or frightening, that won’t matter much if the case is granted. If you can keep your cool, answer all the questions, remain polite, and not lose your composure, you increase the likelihood of a good result. Getting angry, or arguing with the decision-maker is unlikely to get you the decision you want.

Second, make your record. This means, if you have something that you think is important to say, you should try to say it. In other words, don’t let an aggressive officer or judge intimidate you into silence. Court hearings and some USCIS interviews are recorded. Asylum Officers are supposed to write down everything you say (and if they do not write down what you say, you can complain to a supervisor). Even if you are ultimately prevented from saying something, if you indicate that you had something else to say, that exchange might be reviewed on appeal (or by a supervisor) and could result in a new trial or interview.

In making your record, you can be explicit. You can say to the judge or officer, “I think you are treating me unfairly because you are not allowing me to talk about X.” Say this politely and calmly, and it might soften the decision-maker’s stance. Say it aggressively, and you will likely harden the decision-maker’s position. I remember one case where the DHS attorney seemed (to me at least) to be taking a very aggressive position towards my asylum-seeker client. Finally, I simply asked (politely) why DHS was so opposed to asylum in the case. The attorney explained his motivation, which helped me better understand the case, and ultimately, the client received asylum.

Third, especially if you are unrepresented, you should write down what happened after the interview or court hearing. When things go wrong, it is important to try to understand what happened, and the more information you have, the better. If you write down what happened immediately, the information is more likely to be accurate. This will be useful if you later want someone else, like a lawyer, to review the case. It is also important if you need to make a formal complaint against the decision-maker.

Finally, if you feel you were subject to unfair treatment, you can make a complaint. Different forums have different procedures for complaining. For example, if you are with an Asylum Officer, you can ask to speak with a supervisor. You do this during the interview itself by telling the Asylum Officer that you would like to speak to a supervisor. For an Immigration Court case, you would typically contact the judge’s supervisor (called the Assistant Chief Immigration Judge) after the court hearing, or–more typically–you would just file an appeal to the Board of Immigration Appeals.

Periodically, I receive decisions that I think are wrong or unfair, but my clients have never been subject to treatment by an Asylum Officer or Judge that warranted a complaint. I did make a complaint once about a USCIS officer. I spoke to the officer’s supervisor immediately after the interview, and then sent a written complaint directly to the supervisor. I do not know whether the officer herself was informed of the complaint (I never saw her again), but I do know that my client’s case was approved in short order.

Most Immigration Judges and Asylum Officers are professional and respectful, and so hopefully, you will never encounter an official who is treating you unfairly. But if you do, keep calm, remain respectful, and politely make the points you need to make. This is the best way to maximize your chances for a positive decision.

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There is a systemic problem here that must be resolved before the current Immigration Court System can be expanded. It isn’t “rocket science.” A competent Administration interested in Due Process, efficiency, and the rule of law would:

  • Reduce detention of asylum seekers to a bare minimum;
  • Work with NGOs and the private bar toward universal representation of asylum seekers (which also means basically “universal appearance at hearings”);
  • Establish positive precedents to guide Immigration Judges & ICE Counsel to work with the private bar to grant more well-documented cases to implement the generous intent of the Refugee Act of 1980;
  • Ultimately, establish robust refugee programs in the areas of the Northern Triangle (thus making it unnecessary for folks to travel to the border to apply) and authorize and encourage Asylum Officers to grant more asylum, withholding of removal, and/or Convention Against Torture applications, thus eliminating the need to place so many cases where protection is clearly warranted into Immigration Court.

As long as we insist on dealing with a humanitarian refugee situation as a bogus “law enforcement” issue, we will continue to fail and actually divert resources from real law enforcement. Contrary to the false narrative pushed by DHS officials before Congress, increasing arrivals of “families with children” is not a law enforcement crisis, although the way this Administration approaches it does waste law enforcement resources.

An Administration truly interested in solving problems could initially process most of these individuals promptly and fairly at or near Ports of Entry, and then send those found to have a “credible fear” on to interior locations where they could work with attorneys to develop and present their claims in Immigration Court. Those legitimately found to be without credible fear would be subject to “Summary Removal” without going to Immigration Court.

The vast bulk of the 1.1 million cases in the largely “artificially created” and unnecessary Immigration Court backlog could be removed from the docket through a sensible exercise of prosecutorial discretion or processed for other forms of relief through USCIS. With a reduced docket, the Immigration Courts with 475 Immigration Judges (if allowed to operate independently, without idiotic quotas or other inappropriate and unethical political interference) should be able to fairly process arriving asylum applicants, detainees, other “priority criminal cases,” and recent arrivals without relief on a reasonable 12-18 month cycle.  (Note that many in the latter category would be subject to “summary removal” without going to Immigration Court.) The Border Patrol and ICE Investigations could then focus on real law enforcement issues.

We can diminish ourselves as a nation; but, that won’t stop human migration.

PWS

02-28-19