FLASH: AILA WITHDRAWS SUPPORT FOR MORE U.S. IMMIGRATION JUDGES & EOIR FUNDING! — UNDER TRUMP/SESSIONS REGIME “increased judges will not necessarily promote due process and fairness for those appearing in proceedings!”

“From: Greg Chen [mailto:GChen@aila.org]
Sent: Wednesday, July 05, 2017 10:06 AM
To: AILA Interior Enforcement List
Cc: AILA Interior Enforcement List; Kate Voigt; Laura Lynch; Kerri Talbot
Subject: [interiorenforcement] AILA shifted position on IJ funding – CJS approps

Everyone,

AILA’s board just voted to change our position on the funding of immigration judges: in brief, AILA will no longer be supporting increased funding for IJs. The change in position was motivated by two principal concerns: 1) additional funding for judges will enable this administration to deport more people more rapidly; and 2) increased judges will not necessarily promote due process and fairness for those appearing in proceedings, esp under the current administration.

We will convey this to key friends on the Hill, but we haven’t decided how actively we plan to push this.

Here’s what the House FY18 CJS bill includes, according to the summary posted by House approps:

Executive Office for Immigration Review (EOIR) – Funding for the EOIR is increased by $64.5 million, for a total of $505 million. This increase will provide for 65 additional immigration judge teams to process immigration reviews more quickly, and reduce the backlog of pending cases.

Gregory Z. Chen, Esq.
Director of Government Relations
Direct: 202-507-7615 I Cell: 202.716-5818 I Email: gchen@aila.org American Immigration Lawyers Association
Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org<http://www.aila.org/>
1331 G Street, NW, Suite 300, Washington, DC 20005″

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I can understand the sentiment that brought this about. I’m not sure, however, that this isn’t an exercise in “kicking the cat.” The real problem here is lack of independence and the highly inappropriate, facially unethical, role of the DOJ, which Congress created, allowed to fester, and failed to date to fix. And the type of misguided GOP agenda behind an atrocity like H.R. 391 also doesn’t help.

Interesting that the last several Administrations have mismanaged the Immigration Courts to the point where they appear to be doing exactly the opposite of their single mission: guaranteeing fairness and due process for all!

With this particular Congress and Administration, AILA’s change in position probably won’t mean much. Only White Nationalist and restrictionist groups seem to have any influence.

Sadly, years of hard-won progress in establishing due process in the Immigration Court system have now been squandered. EOIR and the Immigration Courts have returned to the mess that they were before EOIR was created.

Bad time to be seeking justice in America! Thanks to my former Georgetown Law Refugee Law & Policy student Shaw Drake for sending me this item!

PWS

07-27-17

BETH FERTIG AT NPR: “ADR” Moves Into High Gear, Devastating U.S. Immigration Courts, As Half Of NY Immigration Court “Goes Dark” — U.S. Immigration Judges Become Adjuncts Of DHS Border Enforcement Program — Dockets At Interior Courts “Orbited Into Never-Never Land!”

ADR = “Aimless Docket Reshuffling”

http://www.wnyc.org/story/even-more-immigration-judges-are-reassigned-trumps-crackdown-border/

Beth reports for WNYC/NPR:

“In its crackdown on illegal immigration, the Trump administration is moving an increasing number of immigration judges closer to the border with Mexico. The practice is so widespread that half of New York City’s 30 immigration judges have been temporarily reassigned for two-to-four weeks at a time between early April and July.

The judges have been sent to hear deportation cases in Louisiana, California, New Mexico and Texas, along with Elizabeth, New Jersey, where there’s a detention center. In June, WNYC reported that at least eight of New York City’s immigration judges have been temporarily moved to Texas and Louisiana since March. New information obtained from a Freedom of Information Act request revealed the number to be much higher.

All this reshuffling causes cases to get delayed for months. And New York City’s immigration court already has a backlog of more than 80,000 cases. People wait an average of more than two years go to court to fight against deportation. Some might welcome a prolonged wait. But immigration lawyer Edain Butterfield said her clients get anxious because they’re ready to make their case, when they suddenly learn their judge has had to postpone.

“They don’t know if their judge is going to stay on their case,” she said. “They sometimes have to get new documents, ask for another day off from work, ask their family to take another day off from work.”

David Wilkins, an attorney with Central American Legal Assistance in Brooklyn, said he’s representing a woman seeking asylum whose hearing was recently postponed almost a year — until the summer of 2018. He said she left her children in her home country back in 2012 because of domestic abuse. “It’s extremely difficult for her,” he said. “She’s been separated from her family for so long to sort of live with the constant uncertainty of not knowing what’s going to happen with her immigration proceeding.”

Judges from New York City aren’t the only ones being moved. According to the latest data obtained by WNYC, 128 of the nation’s approximately 325 immigration judges have been shuffled to other locations between early April and the middle of July. Many of those judges come from Los Angeles, Chicago and San Francisco. These assignments, known as details, last for two or four weeks. Some judges have been shifted around multiple times.

The data does not include all judges assigned to hear cases in other locations by video teleconference. A couple of judges in New York City were seeing cases by video at a Texas detention center in May and June.

The reassignments are expected to continue until early 2018, but the Executive Office for Immigration Review, which runs the immigration courts, would not reveal the schedule beyond July.

In April, Attorney General Jeff Sessions announced that all adults crossing the Mexican border would be sent to detention. To support the mission, he said, the Department of Justice had “already surged 25 immigration judges to detention centers along the border.”

Dana Leigh Marks, president of the National Association of Immigration Judges, said her union remains very concerned about the situation.

“The temporary assignment of judges to border courts creates increasing backlogs in the dockets they leave behind in their home courts and may not be conducive to the overall reduction of our burgeoning caseload.”

Nationally, the backlog has surged to more than 600,000 cases and observers believe that number is growing partly because of the Trump administration’s immigration policies.

Moving judges south might sound counterintuitive because illegal border crossings have actually dropped since President Trump took office. But Bryan Johnson, an immigration lawyer on Long Island, has a theory about why more judges are needed down south.

“The people that are deported will be deported in less time,” he explained. “And that is the message they want to send people in the home countries from where the migrants come from.”

There is no guaranteed right to counsel in immigration court, and experts said there are few low-cost immigration attorneys near the border — making it even easier to swiftly deport someone because they are not likely to have representation.

The Executive Office for Immigration Review did not respond to a request for comment. However, the agency has said it is hiring more judges.”

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Get the accompanying audio/video report at the link.

David Wilkins from the Central American Legal Defense Center in Brooklyn, quoted in Beth’s article, is one of my former Georgetown Law Refugee Law & Policy students, a former CALS Asylum Clinic participant, and a former Legal Intern at the Arlington Immigration Court. David was also an Immigrant Justice Crops fellow. He is a “charter member” of the “New Due Process Army.” Congratulations David, we’re all proud of what you are doing!

Attorney Bryan Johnson simply restates the obvious. Under A.G. Jeff “Gonzo Apocalypto” Sessions, the U.S. Immigration Courts are once again being used as an arm of DHS Enforcement rather than a protector and dispenser of constitutional due process. Nobody in their right mind seriously thinks that Sessions is “surging” Immigration Judges to the border to grant more bonds, reverse more “credible fear” and “reasonable fear” denials, or grant more asylum, withholding of removal, or relief under the CAT.

No, the “surge” program is clearly all about detention, coercion, denial, deportation and sending a “don’t come, we don’t want you” message to folks living in fear and danger in countries of the Northern Triangle of Central America. In other words, you might as well cooperate with, support, and/or join the gangs and narco-traffickers — the U.S. has absolutely no intention of saving your life! Nice message!

Don’t be too surprised when multinational gangs and narco-traffickers eventually seize political power in Central America (they have already infiltrated or compromised many government functions). And, we will have sent away the very folks who might have helped us stem the tide. At the same time, we are destroying the last vestiges of due process in the U.S. Immigration Courts, leaving hundreds of thousands of cases and lives “up in the air” and our justice system without a fair and effective mechanism for deciding and reviewing immigration cases. At some point, somebody is going to have to fix this mess. But, you can be sure it won’t be the Trump (“We Don’t Take Responsibility For Nothin'”) Administration.

PWS

07-24-17

MY MOST RECENT SPEECHES: “MY LIFE & TIMES” — CATHOLIC LEGAL IMMIGRATION NETWORK (“CLINIC”), July 18, 2017; “JOIN THE ‘NEW DUE PROCESS ARMY’ — FIGHT FOR DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS” — HUMAN RIGHTS FIRST, JULY 19, 2017

On Tuesday July 18, 2107, I gave a luncheon address to interns and staff at the Catholic Legal Immigration Network (“CLINIC”) in Silver Spring, MD. My speech entitled “My Life & Times” is at this link:

MY LIFE

On Wednesday, July 19, 2017, I delivered the a luncheon address that was part of the Frankel Lecture Series at Human Rights First in Washington, D.C. & New York, NY (by televideo). My speech entitled “Join The ‘New Due Process Army’ — Fight For Due Process In The United States Immigration Courts” is at this link:

AMERICA’S REAL IMMIGRATION CRISIS

Both speeches are also reproduced in the left menu of immigrationcourtiside.com.

NEWSDAY: Judge Dana Leigh Marks Says Independence Is Only Solution For Beleaguered U.S. Immigration Courts! — Years of Political Interference and Mismanagement By Justice Department Have Taken A Toll On Due Process!

2017-7-17-Newsday-DLM-Immigration-Courts-Need-Independence

Judge Marks writes:

“Immigration courts nationwide have a backlog of more than 598,900 cases. In some of our nation’s busiest courts, such cases remain pending more than 500 days. Just more than 300 immigration judges nationwide grapple with this backlog, which increased by 100,000 in the last year alone.

Even more troubling, as the caseload rises, the rate of completing cases has been dropping. And while there are several reasons for this, our courts have been left in the lurch by ineffective management that has failed to provide adequate support staff and strategic planning.

In the past five years, immigration judges have decided more than 1,329,950 cases, but we can do even better. The key is assuring judicial independence and protection from political influences. Removing the immigration courts from the Department of Justice, where the courts are run by politically appointed law enforcement managers subject to the pressures of politics, and placing them in an independent court structure, would insulate them from those pressures and allow them to concentrate on completing cases in a fair way.

When cases are conducted fairly, there is less likelihood of appeal or political attack. More skilled court management, provided by experienced court administrators, rather than a law enforcement agency with priorities other than fairness and efficiency, would greatly enhance our ability to complete the tasks. For example, cases would not be docketed to make political statements or serve as a show of force by our government. Rather, they would be on the calendar based on due process needs. Judges need to be allowed to apply their expertise to make their dockets run smoothly and fairly.

Restructuring immigration courts would be a win-win, a solution that would ease the pressures on an overwhelmed system and facilitate timely and fair decisions. Structural reform would go a long way toward assuring we are able to answer the challenges that surely will continue.

Dana Leigh Marks is an immigration judge in San Francisco and president of the National Association of Immigration Judges. The views expressed here are solely those of the author in consultation with the NAIJ.”

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Read Judge Marks’s full, article, which has an excellent succinct description of the important work performed by U.S. Immigration Judges, at the above link.

I agree totally with my good friend and former colleague Dana that an independent Immigration Court is a “win-win.” Pouring more Immigration Judges (particularly with little or no training) into an already dysfunctional system has actually resulted in fewer completions and is almost certain to increase the already disturbing discrepancies in asylum grant rates, etc.

But, getting officials in today’s highly politicized Department of Justice to support such a move is difficult. As I pointed out in an earlier post/article, http://immigrationcourtside.com/we-need-an-article-i-united-states-immigration-court-now/ one of the two reasons that Government officials sometimes fail to act in their own and the country’s best interests is “uncompromising philosophy.”

Jeff Sessions’s extreme anti-immigrant philosophy has led him to eschew “smart” immigration enforcement in favor of a “gonzo” policy of indiscriminate prosecution, jailing, detaining, deporting, and using the Immigration Courts as an adjunct of DHS enforcement, while trying to avoid the Immigration Court system entirely through a policy of increased “expedited removal.” Ultimately, this program, which lacks both credibility and due process, is very likely to fail and lead to a logjam in the Article III Courts. This, in turn, will result in almost nobody getting removed and Article III Judges making decisions about how the Immigration Court system should be run.

I don’t share Dana’s optimism that Sessions could be persuaded to cede his total control over the staffing and functioning of the U.S. Immigration Courts to an independent authority who would run it in accordance with due process. Although that would be in his best interests, I see no evidence that he is reflective enough to get beyond his long history of immigrant bashing and furthering a white nationalist agenda. I’d like to be proved wrong on this, but I wouldn’t hold my breath.

As I have pointed out several times before, when a system with over 600,000 pending cases finally “crashes and burns,” it’s going to take a big chunk of the American justice system with it. Maybe, just maybe, at that point legislators will finally have to do their jobs, step in, and create an independent Immigration Court, with or without the support of the Administration and the DOJ.

PWS

07-19-17

TRAC: More Judges, Fewer Completions, More Backlog — Now Topping 610,000 — Trump’s Gonzo Immigration Policies Adversely Affecting Immigration Courts!

Subject: Immigration Court Dispositions Drop 9.3 Percent Under Trump

==========================================
Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Greetings. The latest available case-by-case data indicate that Immigration Court dispositions have dropped by 9.3 percent since President Trump assumed office. While a larger proportion of this declining total consist of removal orders, cases closed during the past five months (February 2017-June 2017) totaled only 77,084 cases as compared with 84,956 for the same five-month period during 2016.

Under President Trump discretion to defer deporting individuals – irrespective of their circumstances — has largely been abolished. During the first five months of the Trump Administration prosecutorial discretion closures precipitously dropped to fewer than 100 per month from an average of around 2,400 per month during the same five month period in 2016. This decline has contributed to the court’s growing backlog of cases. The backlog reached a record 610,524 cases as of June 30, 2017. This is up from 598,943 at the end of May.

These findings are based upon the very latest case-by-case court records-current through the end of June 2017-that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

To read the full report, please go to:

http://trac.syr.edu/immigration/reports/474/

In addition, many of TRAC’s free query tools – which track the court’ backlog, new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through June 2017. For an index to the full list of TRAC’s immigration tools go to:

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

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

http://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, NY 13244-2100
315-443-3563

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

The results speak for themselves as Trump’s gonzo enforcement strategy and gross mismanagement of the U.S. Immigration Courts by the Sessions-led DOJ continue to destroy due process in Immigration Court and burden both taxpayers and the rest of the justice system. Go over to TRAC for the full report.

The Trump Administration is taking ADR — Aimless Docket Reschuffling — to new levels of waste and abuse.

Thanks to Nolan Rappaport for bringing g this to my attention.

PWS

07-18-17

UNTRAINED JUDGES + GONZO POLICIES = DUE PROCESS NIGHTMARE IN U.S. IMMIGRATION COURTS!

https://www.washingtonpost.com/opinions/immigration-judges-were-always-overworked-now-theyll-be-untrained-too/2017/07/11/e71bb1fa-4c93-11e7-a186-60c031eab644_story.html?hpid=hp_no-name_opinion-card-e%3Ahomepage%2Fstory&utm_term=.35cde7464fad

Sarah Sherman-Stokes writes in an op-ed in today’s Washington Post:

“Sarah Sherman-Stokes is a clinical instructor and the associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.

America’s immigration judges have long been overburdened and under-resourced. One immigration judge has compared her job to “doing death-penalty cases in a traffic-court setting.” The stakes are high, while support and procedural protections for noncitizens facing deportation are negligible. It’s no surprise, then, that immigration judges suffer greater stress and burnout than prison wardens or doctors in busy hospitals.

Now, the Trump administration is making a difficult situation almost untenable. In an effort to expand and accelerate the deportation machine, the Trump administration has hit immigration judges with a one-two punch: dramatically increasing their caseloads and, at perhaps the worst time, canceling the annual week-long training conference for immigration judges. The impact on the entire removal system — and, more importantly, on the rights and lives of our most vulnerable noncitizen neighbors — will be devastating.

On average, an immigration judge completes more than 1,500 cases per year, with a ratio of 1 law clerk for every 4 judges, according to a recent report of the National Association of Immigration Judges. By comparison, the typical district court judge trying civil suits has a pending caseload of 400 cases and three law clerks for assistance.

This imbalance is poised to deteriorate even further. In January, the administration issued an executive order that effectively repealed and replaced a tiered system of immigration enforcement and removal priorities crafted by the Obama administration, which focused deportation efforts on the most serious offenders. President Trump’s executive order places a priority on every noncitizen suspected of violating the law. This includes noncitizens who have been charged with (but not convicted of) any offense or who have committed acts that constitute a criminal offense (though they have been neither charged nor arrested). In fact, a recently leaked February 2017 memo from an Immigration and Customs Enforcement official is even more explicit, instructing ICE agents to “take enforcement action against all removable aliens encountered in the course of their duties.” It adds that the agency “will no longer exempt classes or categories of removable aliens from potential enforcement.”

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

Read the complete article at the link.

How much longer does this due process and administrative disaster have to go on before the U.S. Immigration Courts are taken out of the Justice Department and authorized to operate as an independent Article I judiciary?

PWS

0712-17

THE ASYLUMIST: Jason Dzubow Wins Key “Firm Resettlement” Case — Wonders Why BIA Won’t Publish When Failing System Cries Out For More Consistency!

http://www.asylumist.com/2017/06/22/the-bia-on-firm-resettlement-2/

“Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.

Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.”

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I agree, Jason. As you know from our Asylumist interviews last summer, there was a time when the BIA published more cases. It was during the era of the “Schmidt Board.”

Many of the precedents involved controversial issues of first impression under IIRIRA. There was open dialogue with some separate opinions. Sometimes, the dissent better predicted the future development of the law than the majority opinion. Most were en banc, so every Board Appellate Judge had to take a public vote. And, some of them actually granted relief to the respondent.

But those days are long gone. Today’s Board exists 1) to push cases through the system to final orders of removal on more or less of an assembly line, 2) not to rock the boat, 3) to provide OIL with ways to defend the Government’s “party line” under Chevron, and 4) to preserve the institution and the jobs of the Appellate Judges.

You’ll notice that I didn’t mention anything about due process, fairness, best practices, consistency, law development, informative dialogue, justice, or even practicality. And, Jason, let’s face it. Who would want to publish a decision favorable to a respondent with Jeff “Gonzo Apocalypto” Sessions — a guy who basically never has a kind, humane, or generous word to say about any migrant, legal or not — as your boss?

In a functioning system, an appellate court that stood for fairness, due process, and best practices could be part of the solution. But, our current U.S. Immigration Court system is dysfunctional. And, mostly, the Board is just another part of the problem. Basically, if you don’t stand up for anything or anybody, you stand for nothing.

PWS

06-28-17

THE NEW YORKER: Bureaucratic Delays Impede Due Process In U.S. Immigration Court!

http://www.newyorker.com/news/news-desk/what-will-trump-do-with-half-a-million-backlogged-immigration-cases

Jonathan Blitzer writes in The New Yorker:

“In April, Attorney General Jeff Sessions travelled to Nogales, Arizona, to make an announcement. “This is the Trump era,” he said. “The lawlessness, the abdication of the duty to enforce our immigrations laws, and the catch-and-release practices of old are over.” While his tone was harsh, and many of the proposals he outlined were hostile to immigrants, he detailed one idea that even some of his critics support: the hiring of more immigration judges.

U.S. immigration courts are facing a backlog of over half a million cases—and each one, on average, takes almost two years to close. These delays mean that everyone from asylum seekers to green-card holders faces extended stays in detention while awaiting rulings. Speaking about the problem, one immigration judge recently told the Times, “The courts as a whole lose credibility.”

Much of the backlog can be traced back to the Obama Administration, when spending on immigration enforcement went up, while Congress dramatically limited funds for hiring more judges. The number of pending cases grew from a hundred and sixty-seven thousand, in 2008, to five hundred and sixty thousand, in 2017, according to the Transactional Records Access Clearinghouse. The broader trend, though, goes back farther. Since the creation of the Department of Homeland Security, in 2002, the increase in resources allocated for border security and immigration policing has always significantly outpaced funding for the courts. (Immigration courts are part of the Department of Justice.) As more and more people have been arrested, detained, and ordered deported, the courts have remained understaffed and underfunded. “We’ve always been an afterthought,” Dana Leigh Marks, the president of the National Association of Immigration Judges, told me.

Roughly three hundred judges nationwide are responsible for the entire immigration caseload, and hiring is slow—filling a vacancy typically tak

es about two years, according to the Government Accountability Office. In Nogales, Sessions said that he would try to streamline the hiring process. But until that happens the Administration has been relocating judges to areas where they’re deemed most necessary. “We have already surged twenty-five immigration judges to detention centers along the border,” Sessions said, as if talking about military troop levels.”

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To state the obvious, a court should be run as an independent court system, not a bureaucratic agency within a highly politicized Executive Department like the DOJ. (If you ever wondered whether the DOJ was politicized, recent events should make it clear that it is.)

And, Jeff, these are judges, not troops; and the individuals are not an “invading army,” just mostly ordinary folks seeking refuge, due process, and fair treatment under our laws and the Constitution. Remember, it’s not an immigration crisis; it’s a crisis involving the steady degradation of due process within the U.S. Immigration Court system.

PWS

06-21-17

Why Is The U.S. Immigration Court So Totally Screwed Up? — Sure, Bad Laws & Inadequate Resources Are Endemic Problems — But, Trying To Run A Due Process Court System As An Agency Of A Political Department Which Is Clueless About Effective Judicial Administration Is The Overriding Reason This System Is “Built To Fail!”

http://immigrationimpact.com/2017/06/08/immigration-courts-backlog/

Tory Johnson writes in Immigration Impact:

“Anyone familiar with the immigration system knows that the immigration courts have an enormous backlog which has persisted—and grown—for more than a decade. As of April 2017, the immigration court backlog topped 585,930 cases, more than double the pending cases in fiscal year (FY) 2006 (212,000).

The immigration court backlog means that many people wait years to have their cases resolved. According to a June 2017 report from the Government Accountability Office (GAO), the average time a case remains pending with the Executive Office for Immigration Review (EOIR)—the office within the Department of Justice that adjudicates immigration cases—has increased. In FY 2006, cases took an average of 198 days to complete; now the average is 650 days.

For years government officials, external stakeholders, and others have attributed the growing backlog to staffing shortages, lack of resources, and changing priorities. GAO’s recent analysis affirms some of these problems, but found that average case completion times increased—from 43 days in FY 2006 to 286 days in FY 2015—even though the number of immigration judges increased by 17 percent in the last decade.

So what’s making cases take longer in immigration court, and contributing to the backlog?

In part, judges are taking more time to complete cases, especially as new hires get up to speed. Respondents to GAO’s investigation most commonly cited a lack of adequate staff as a cause of the backlog, but “immigration judges from five of the six courts [GAO] contacted also stated that they do not have sufficient time to conduct administrative tasks, such as case-related legal research or staying updated on changes to immigration law.”

Indeed, over the 10-year period, judges issued 54 percent more case continuances, or a temporary postponement of case proceedings, on their own volition—due to unplanned leave or insufficient time to complete a hearing, for example. Immigration judges may also grant a continuance to allow respondents time to obtain legal representation— since immigrants do not receive government-provided counsel— which demonstrably shortens the length of a case.

There is concern that the backlog may only worsen under the current administration. In order to carry out President Trump’s directives to ramp up immigration enforcement and deportations, the Justice Department has started relocating immigration judges. But transferring judges—many of whom have been reassigned to detention centers—for the purpose of speeding up immigration cases has alarmed immigration experts, who fear case delays will increase in immigration judges’ usual courts, adding to the backlog.

While the directives were not analyzed in GAO’s review, the report’s focus on systemic issues exacerbating the backlog makes the plans to shuffle judges to new courts all the more concerning.

GAO made 11 recommendations in the following areas that would “better position EOIR to address its case backlog and help improve the agency’s overall effectiveness and efficiency in carrying out its important mission.” The recommendations included implementing better workplace planning and hiring practices; building an electronic filing system with oversight and management mechanisms; video-teleconferencing (VTC) assessments to ensure neutral outcomes; and creating efficient management practices and comprehensive performance measures for all cases.

While some of these issues are being addressed—such as implementing a plan to streamline hiring—GAO found that the efforts EOIR cited do not fully address the concerns outlined in the report. In particular, EOIR is lacking comprehensive technological capabilities, data on VTC hearings, performance assessments, and short- and long-term plans for staffing needs created by the 39 percent of retirement-eligible immigration judges.

The shortcomings further demonstrate the GAO’s conclusion that EOIR is lacking critical management, accountability, and performance evaluation systems. These mechanisms are essential for EOIR and oversight bodies, such as Congress, to accurately assess the immigration courts and ensure that EOIR is achieving its mission, which includes timely adjudication of all cases.

EOIR should take the GAO’s recommendations seriously and work to implement solutions—the fates of hundreds of thousands of people literally depend on it.”

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Sadly, the necessary changes are way beyond the capability of EOIR and the DOJ, particularly in light of current political leadership in the DOJ which seems determined to run the courts into the ground with ill-advised maximum enforcement initiatives and “aimless docket reshuffling.” EOIR has been an agency within the DOJ since 1983. It actually performs measurably worse today than it did in 2000. Expecting a “turnaround” within the DOJ is like expecting the Tooth Fairy to solve this problem.

You can check out my previous blog on the GAO report here:

http://immigrationcourtside.com/2017/06/02/gao-report-recommends-improvements-in-u-s-immigration-court-hiring-technology-data-analysis-oversight/

Note that the GAO discusses independent structures for the U.S. Immigration Court, but does not include a particular recommendation on that point.

But, I have one! We need an independent United States Immigration Court now! Otherwise the Immigration Court’s “due process meltdown” is eventually going to paralyze a large segment of the U.S. justice system. Yes, folks, it’s that bad! Maybe even worse, since DOJ and EOIR are “circling the wagons” to avoid public scrutiny and accountability. Tell your legislative representatives that we need an independent court now!

PWS

06-14-17

NO MERCY, NO JUDGEMENT, NO SANITY — “Deport ‘Em All — Create Universal Fear” (Paraphrased) Says Acting ICE Chief Homan!

http://www.washingtontimes.com/news/2017/jun/13/thomas-homan-ice-chief-says-illegal-immigrants-sho/

Stephen Dinan reports in the Washington Times:

“Illegal immigrants should be living in fear of being deported, the chief of U.S. Immigration and Customs Enforcement said Tuesday, pushing back against a growing sentiment among Democrats on Capitol Hill and activists across the country who have complained about agents enforcing the laws on the books.
Thomas D. Homan, acting director at ICE, said anyone in the country without authorization can be arrested and those who have been ordered deported by judges must be removed if laws are to have meaning.
His comments marked a major shift for an agency that President Obama forbade from enforcing the law when it came to more than 9 million of the country’s estimated 11 million illegal immigrants. Unshackled from Mr. Obama’s strictures, agents have dramatically increased the number of arrests.
Advocacy groups are enraged and demand leniency for “traumatized” immigrants.
Mr. Homan makes no apologies.
“If you’re in this country illegally and you committed a crime by being in this country, you should be uncomfortable, you should look over your shoulder. You need to be worried,” Mr. Homan testified to the House Appropriations Committee. “No population is off the table.”

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

Homan’s definition of “criminal” (the “Trump definition”) is remarkable. It includes folks who have never been convicted of a crime, but might have committed one. So, by this definition, anyone who has ever driven a car while over the legal limit, left assets off of a Federal or State tax return, or tried marijuana in high school or college when it was against the law is a “criminal.” That probably would include the majority of the U.S. population, and even lots of folks who work for Homan. Fortunately for them, they aren’t subject to Homan’s arbitrary removal policies.
Homan’s over-broad use of “criminal” nevertheless excludes a large portion of the undocumented population who entered the U.S. legally on visas or visa waivers and then overstayed. Recent studies estimate that the visa overstays surpassed illegal entrants as a source of undocumented arrivals in 2008 and might amount to as much as 60% of the “new” undocumented population in recent years. Overstaying is not, in and of itself, a “crime.”
Some of the individuals under “final orders” of removal were ordered removed in absentia. Many of these individuals have a right to file a motion to reopen which automatically stays removal and requires immediate attention by an Immigration Judge. In my experience, because of the “haste makes waste” priorities followed by the last few Administrations, many “Notices To Appear” (NTA’s) had incorrect addresses or were otherwise were defectively served. (Keep in mind that the overwhelming majority of NTAs and Notices of Hearing Date are served by regular U.S. Mail, rather than actual personal service.) Consequently, many of these supposed “scofflaws” might not actually have had their day in court and will be entitled to a reopened individual hearing in the future.
Make no mistake about it, what Homan really is advocating is arbitrary enforcement. We can’t remove millions of individuals, but by arbitrarily removing a limited number, even if they are actually benefitting the US, we can spread fear among millions. And, by sowing fear, we can make these individuals afraid to report crime or cooperate with authorities in solving crime.
It’s not really Homan’s fault. His pride in his largely arbitrary use of the enforcement resources at his disposal is just the logical outcome of years of intentional neglect of needed immigration reforms by Congress and successive Administrations. Arbitrary enforcement is what the Trump Administration asked for, and Homan is giving it to them. Big time! Eventually, it’s likely to crash the entire system. And, that will finally force Congress to do what it hates most: legislate.
It also would be wrong to think of Acting Director Homan as a creation of the Trump Administration. He is a career civil servant who is exceptionally good at doing what he is told to do. So good, in fact, that he received a Presidential Rank SES Award from the Obama Administration for “jacking up” removals. Don’t forget that until Trump and his bombast arrived on the scene, President Obama was known as the “Deporter-in-Chief.” Obama made mistakes, but he did temper some of his counterproductive enforcement efforts with at least some amount of mercy, common sense, and the very beginnings of a rational system of enforcement along the lines of almost every other law enforcement agency in America. With Trump, the age of “full gonzo enforcement” has returned.

PWS

06-14-17

NICHOLAS KULISH IN THE NYT: TORTURED IN VENEZUELA, HANDCUFFED BY ICE @ THE MIAMI ASYLUM OFFICE! — DHS Continues To Abuse Legal Authority, Clog Backlogged U.S. Immigration Courts! My Quote: “Why clog an already clogged court docket with a case that looks like a slam dunk?”

https://www.nytimes.com/2017/06/13/us/asylum-torture-venezuela.html

Nicholas reports:

“Marco Coello, then a skinny 18-year-old high school student, was grabbed by plainclothes agents of the Venezuelan security services as he joined a 2014 demonstration against the government in Caracas.

They put a gun to his head. They attacked him with their feet, a golf club, a fire extinguisher. They tortured him with electric shocks. Then Mr. Coello was jailed for several months, and shortly after his release, he fled to the United States.

Human Rights Watch extensively documented his case in a report that year. The State Department included him in its own human rights report on Venezuela in 2015. With such an extensive paper trail of mistreatment in his home country, his lawyer, Elizabeth Blandon, expected a straightforward asylum interview when Mr. Coello appeared at an immigration office this April in Miami.

“I had this very naïve idea that we were going to walk in there and the officer was going to say, ‘It’s an honor to meet you,’” said Ms. Blandon, an immigration law expert in Weston, Fla.

Instead, he was arrested and taken to a detention facility on the edge of the Everglades. He was now a candidate for deportation. “Every time they would move me around, I would fear that they were going to take me to deport me,” said Mr. Coello, now 22.

Mr. Coello’s case drew extensive media coverage in both Miami and Caracas and, eventually, the intervention of Senator Marco Rubio of Florida. The senator helped secure Mr. Coello’s release, though he could still be deported.

The case may have been a sign of just how far the government is willing to go to carry out President Trump’s crackdown on illegal immigration.

“It’s very unusual — almost unprecedented — that ICE would arrest an asylum applicant who is at a U.S.C.I.S. office waiting for their asylum interview,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.”

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

Just because arresting individuals believed to be in the U.S. without authorization is legal doesn’t mean that it’s not stupid or wasteful in many cases. Cases like this belong in the Asylum Office.

In a well-functioning system, Mr. Coello likely would have been granted asylum following his interview. Instead, he’s on an already overcrowded U.S. Immigration Court docket with a merits hearing scheduled for approximately one year from now.

What does the U.S. gain from these types of wasteful enforcement actions? What message are we sending to Mr. Coello and others who will eventually become full members of our society? What kind of messages are we sending to Venezuela and those attempting to escape from some of the world’s most brutal governments?

Read Nicholas’s complete report, which contains more quotations from me and others, at the above link.

PWS

06-13-17

US Immigration Judge Frees Immigrant Activist — Incredulous At DHS’s Position!

http://abcnews.go.com/International/wireStory/immigration-judge-orders-release-los-angeles-woman-47945745

The AP reports:

“A Mexican woman was released from custody Friday while the U.S. government seeks to deport her after a judge rejected arguments she should wear a monitoring device because she was arrested twice while demonstrating in support of people in the country illegally.

Claudia Rueda, 22, plans to apply for Deferred Action for Childhood Arrivals, a program started in 2012 under President Barack Obama that shields immigrants who came to the U.S. as young children from being deported. Her case has drawn attention because she has no criminal record and is an immigration activist.

The immigration judge, Annie S. Garcy, said holding Rueda without bond was “unduly severe” and allowed her to be released on her own recognizance. She noted Ruedas’ academic and other achievements and was incredulous when a government attorney asked that Rueda be required to wear a monitoring device.

“Wow, an ankle bracelet? Really?” said Garcy, who is on temporary assignment from Newark, New Jersey, under an administration effort to give higher priority to cases along the U.S. border with Mexico.

The government attorney, Matthew Hanson, responded that Rueda was arrested twice, once for trespassing and once for disorderly conduct.

Her attorney, Monika Langarica, said those arrests occurred during peaceful demonstrations to support people in the country illegally. She was charged in only one case and it was dismissed.

Rueda, a student at California State University, Los Angeles, was arrested on immigration charges May 18 outside a relative’s Los Angeles home in connection with what the U.S. Border Patrol said was a drug smuggling investigation.

Her mother, Teresa Vidal-Jaime, was arrested on immigration violations in April in connection with the same investigation and later released from custody. Neither Rueda nor her mother was arrested on drug charges.

U.S. Immigration and Customs Enforcement said it would comply with the order to release Rueda and will consider any additional requests by her attorney.”

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

Read the complete report at the link.

Under a rational policy, this respondent should have been released by DHS on recognizance and given time to apply for DACA. No wonder the U.S. Immigration Courts are near collapse when DHS wastes precious judicial time on cases that don’t belong in court in the first place.

I don’t blame the Assistant Chief Counsel, Mr Hanson. He’s probably just following instructions. The most knowledgeable folks in the DHS, their court lawyers, have been stripped of the authority to exercise sensible prosecutorial discretion. Instead, Gen. Kelly has turned line agents loose to do as they please.

In other words, he is presiding over a random enforcement system that wastes taxpayer money, abuses the courts, and harms individuals whose cases shouldn’t be in the enforcement system at all.

REALITY CHECK: According to TRAC, as of April 30, 2017, the Newark Immigration Court, where Judge Garcy normally sits, was setting “merits” cases for September 1, 2020, three plus years from now. Why on earth, then, was Judge Garcy sent to California to hear non-merits (i.e., bond) cases that didn’t even belong in court in the first place? Through a disastrous combination of “gonzo” enforcement policies and stunning incompetence the Trump Administration is destroying a key component of the US justice system. When and where will it end?

PWS

06-11-17

Personalized Immigration History, Anyone? Four Of Us “Old Timers” — Hon. Gus Villageliu, Hon. M. Christopher Grant, Hon. Jeffrey Chase, & I — Have Put Together Some Of Our Recollections Of The Earlier Days Of The Immigration Court Under The “Comments” To My Recent “York Speech!”

Click this link, and go to the “Comments” tab at the bottom. http://wp.me/p8eeJm-WJ

Additional thoughts and comments welcome!

PWS

06-11-17

US IMMIGRATION COURT CHAOS — NEW TRAC STATS PROVE MY CASE: 79 More IJs + ADR** + No Plan + Arbitrary DHS Enforcement = More Backlog — Administration On Track To Top 600,000 Pending Cases By Fall — Due Process Disaster — Some Hearings Being Set For 2022 (That’s Halfway Through The NEXT Administration) !

** ADR = “Aimless Docket Reshuffling”

http://trac.syr.edu/immigration/reports/468/

Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Greetings. During the past 18 months, a total of 79 new judges have been appointed to the Immigration Court. Despite this spurt in hiring, it has not made a dent in the court’s mountainous backlog. Instead, the backlog along with wait times have steadily increased.

As of the end of April 2017, the number of cases waiting for a decision had reached an all-time high of 585,930. Nine courts that account for a quarter of this backlog currently require some individuals to wait for more than four additional years before a hearing is scheduled. The Immigration Court in San Francisco with nearly 42,000 backlogged cases has some cases waiting for more than five additional years – as much as 1,908 days longer – for their July 21, 2022 hearing date.

These extraordinary wait times imply that some individuals are not scheduled to have their day in court until after President Trump’s current four-year term in office has ended. And we are only a little more than 100 days into his four-year term.

How quickly a case can be heard varies by court location, and the priority assigned to the case. Individuals detained by ICE are generally given priority and their cases are heard more quickly. Thus, there is tremendous variation in scheduled wait times from an average of 22 days for the Immigration Court hearing cases in the Cibola County Correctional Center in Minnesota, to 1,820 average days for individuals heard by the Immigration Court sitting in Chicago, Illinois.

These findings are based upon the very latest case-by-case court records – current through the end of April – that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

To see the full report, including the backlog and wait until hearings are scheduled for individual Immigration Court hearing locations, go to:

http://trac.syr.edu/immigration/reports/468/

In addition, many of TRAC’s free query tools – which track new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through April 2017. For an index to the full list of TRAC’s immigration tools go to:

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

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

http://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

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, NY 13244-2100
315-443-3563

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

Wow! The Trump Administration has proved to be incompetent at just about everything except offending allies, paving the way for dirtier air and water, undermining civil rights, busting more vulnerable individuals, most of whom are doing the US no particular harm (actually most are “plusses” for America), and keeping judges, lawyers, and reporters busy.

Can this Congress, even this GOP-controlled version, just stand by and let an incompetent Executive Branch run an important judicial system into the ground? Stay tuned.

Thanks to Nolan Rappaport for alerting me to this report.

PWS

06-11-17

REUTERS: Neither Rhyme Nor Reason Apparent In DHS Decisions to Undo Prosecutorial Discretion

http://www.reuters.com/article/us-usa-immigration-deportations-exclusiv-idUSKBN1902I4

Mica Rosenberg and Reade Levinson report from Reuters:

“In September 2014, Gilberto Velasquez, a 38-year-old house painter from El Salvador, received life-changing news: The U.S. government had decided to shelve its deportation action against him.

The move was part of a policy change initiated by then-President Barack Obama in 2011 to pull back from deporting immigrants who had formed deep ties in the United States and whom the government considered no threat to public safety. Instead, the administration would prioritize illegal immigrants who had committed serious crimes.

Last month, things changed again for the painter, who has lived in the United States illegally since 2005 and has a U.S.-born child. He received news that the government wanted to put his deportation case back on the court calendar, citing another shift in priorities, this time by President Donald Trump.

The Trump administration has moved to reopen the cases of hundreds of illegal immigrants who, like Velasquez, had been given a reprieve from deportation, according to government data and court documents reviewed by Reuters and interviews with immigration lawyers.

Trump signaled in January that he planned to dramatically widen the net of illegal immigrants targeted for deportation, but his administration has not publicized its efforts to reopen immigration cases.

It represents one of the first concrete examples of the crackdown promised by Trump and is likely to stir fears among tens of thousands of illegal immigrants who thought they were safe from deportation.

While cases were reopened during the Obama administration as well, it was generally only if an immigrant had committed a serious crime, immigration attorneys say. The Trump administration has sharply increased the number of cases it is asking the courts to reopen, and its targets appear to include at least some people who have not committed any crimes since their cases were closed.

Between March 1 and May 31, prosecutors moved to reopen 1,329 cases, according to a Reuters’ analysis of data from the Executive Office of Immigration Review, or EOIR. The Obama administration filed 430 similar motions during the same period in 2016.

Jennifer Elzea, a spokeswoman for U.S. Immigration and Customs Enforcement, confirmed the agency was now filing motions with immigration courts to reopen cases where illegal immigrants had “since been arrested for or convicted of a crime.”

It is not possible to tell from the EOIR data how many of the cases the Trump administration is seeking to reopen involve immigrants who committed crimes after their cases were closed.

Attorneys interviewed by Reuters say indeed some of the cases being reopened are because immigrants were arrested for serious crimes, but they are also seeing cases involving people who haven’t committed crimes or who were cited for minor violations, like traffic tickets.

“This is a sea change, said attorney David Leopold, former president of the American Immigration Lawyers Association. “Before, if someone did something after the case was closed out that showed that person was a threat, then it would be reopened. Now they are opening cases just because they want to deport people.”

Elzea said the agency reviews cases, “to see if the basis for prosecutorial discretion is still appropriate.”

POLICY SHIFTS

After Obama announced his shift toward targeting illegal immigrants who had committed serious crimes, prosecutors embraced their new discretion to close cases.

Between January 2012 and Trump’s inauguration on Jan. 20, the government shelved some 81,000 cases, according to Reuters’ data analysis. These so-called “administrative closures” did not extend full legal status to those whose cases were closed, but they did remove the threat of imminent deportation.

Trump signed an executive order overturning the Obama-era policy on Jan. 25. Under the new guidelines, while criminals remain the highest priority for deportation, anyone in the country illegally is a potential target.

In cases reviewed by Reuters, the administration explicitly cited Trump’s executive order in 30 separate motions as a reason to put the immigrant back on the court docket. (For a link to an excerpted document: tmsnrt.rs/2sI6aby)

Since immigration cases aren’t generally public, Reuters was able to review only cases made available by attorneys.

In the 32 reopened cases examined by Reuters:

–22 involved immigrants who, according to their attorneys, had not been in trouble with the law since their cases were closed.

–Two of the cases involved serious crimes committed after their cases were closed: domestic violence and driving under the influence.

–At least six of the cases involved minor infractions, including speeding after having unpaid traffic tickets, or driving without a valid license, according to the attorneys.

In Velasquez’s case, for example, he was cited for driving without a license in Tennessee, where illegal immigrants cannot get licenses, he said.

“I respect the law and just dedicate myself to my work,” he said. “I don’t understand why this is happening.”

Motions to reopen closed cases have been filed in 32 states, with the highest numbers in California, Florida and Virginia, according to Reuters’ review of EOIR data. The bulk of the examples reviewed by Reuters were two dozen motions sent over the span of a couple days by the New Orleans ICE office.

PUMPKIN SEED ARREST

Sally Joyner, an immigration attorney in Memphis, Tennessee said one of her Central American clients, who crossed the border with her children in 2013, was allowed to stay in the United States after the government filed a motion to close her case in December 2015.

Since crossing the border, the woman has not been arrested or had trouble with law enforcement, said Joyner, who asked that her client’s name not be used because of the pending legal action.

Nevertheless, on March 29, ICE filed a two-page motion to reopen the case against the woman and her children. When Joyner queried ICE, an official said the agency had been notified that her client had a criminal history in El Salvador, according to documents seen by Reuters.

The woman had been arrested for selling pumpkin seeds as an unauthorized street vendor. Government documents show U.S. authorities knew about the arrest before her case was closed.

Dana Marks, president of the National Association of Immigration Judges, said that revisiting previously closed matters will add to a record backlog of 580,000 pending immigration cases.

“If we have to go back and review all of those decisions that were already made, it clearly generates more work,” she said. “It’s a judicial do-over.”

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

I remember that during his confirmation hearings in the Senate, Secretary Kelly came across as someone who understood law enforcement priorities and the futility of “enforcement for enforcement’s sake.” But the “hallmarks” of the “Kelly DHS” have been arbitrary and irrational enforcement, lack of transparency, lack of planning, general disregard of humane values, disrespect for migrants, waste of taxpayer dollars, and gross abuse of the U.S. Immigration Court’s docket.

PWS

06-09-17

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