THE HILL: N. Rappaport Believes That Expedited Removal Is the Key To Reducing The Immigration Court Backlog

http://thehill.com/opinion/immigration/356211-trumps-fast-tracked-deportations-may-be-only-practical-solution-to

Nolan writes:

“An alien who seeks admission to the United States without valid documents can be sent home without a hearing, and, this does not apply just to aliens at the border. An undocumented alien may be viewed as “seeking admission” even if he has been living here for more than a year.

But for immigration purposes, words mean whatever the Immigration and Nationality Act (INA) says they mean.

Section 235(a)(1) of the INA says that an alien who is in the United States but has not been “admitted” shall be viewed as an applicant for admission for purposes of this Act. And section 101(a)(13) of the INA says that the terms “admission” and “admitted” mean a lawful entry into the United States after an inspection and authorization by an immigration officer.

This makes it possible for DHS to use expedited removal proceedings to deport undocumented aliens who already are in the United States without giving them hearings before an immigration judge, which is necessary now because the immigration court is experiencing a backlog crisis.As of the end of August 2017, the immigrant court’s backlog was 632,261 cases, and the immigration court has only 330 immigration judges. The backlog is getting larger every year because the judges are not even able to keep up with the new cases they receive each year.

. . . .

In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, can be deported without a hearing before an immigration judge, unless he has a credible fear of persecution.

Previous administrations limited these proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

Trump opted to use expedited removal proceedings to the full extent authorized by law. In his Executive Order, “Border Security and Immigration Enforcement Improvements,” he orders the DHS Secretary to use the proceedings for the aliens designated in section 235(b)(1)(A)(iii)(II)of the INA, i.e., aliens who are in the United States but were not lawfully admitted and cannot establish that they have been here continuously for two years.

If an alien wants an asylum hearing before an immigration judge, he has to establish to the satisfaction of an asylum officer that he has a credible fear of persecution. If the asylum officer is not persuaded, the alien can request an abbreviated review by an immigration judge, which usually is held within 24 hours.

Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years. I would prefer replacing the immigration officers with immigration judges for proceedings involving aliens who are already in the United States.

Expedited removal proceedings are not used for unaccompanied alien children.

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) exempts certain unaccompanied alien children (UAC) from expedited removal proceedings.

Trump has asked Congress to amend the TVRPA to restrict the unaccompanied alien children protections. In the meantime, steps are being taken to deter parents from bringing their children here illegally.

ICE will be putting the parents of UACs in removal proceedings if they are undocumented aliens too, and if a smuggler was paid, they might be prosecuted for human trafficking.

Immigrant advocates still have time to work with Trump on immigration reform legislation, but once Trump has implemented an expanded expedited removal proceedings program, he is not going to be inclined to stop it. And it could start soon. He recently issued a Request for Information to identify multiple possible detention sites for holding criminal aliens and other immigration violators.”

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

I have no doubt that the Trump Administration will attempt to “max out’ the use of expedited removal. Interestingly, however, although the Executive Order referenced by Nolan was issued at the beginning of the Administration, the regulatory changes necessary to expand the use of expedited removal have not yet been published in the Federal Register. A change of this nature is likely to require full notice and comment, which will take some time. If the Administration tries to avoid the notice and comment process, that will be likely to give advocates a valid ground for challenging the revised regulation under the Administrative Procedures Act.

I also doubt that expedited removal can successfully address the current Immigration Court backlog, which is, after all, largely the result of incompetent management, poor enforcement choices, and “ADR” by politicos at the DOJ, including particularly in this Administration. Without removing the political influence over the Immigration Courts and placing them in an independent structure that can be professionally administered in an unbiased manner, no “docket reform” is likely to succeed..

Second, nearly all of the 10-11 million individuals currently in the U.S. without documentation have been here more than two years and can prove it. Indeed, the vast majority of the 630,000+ cases pending in Immigration Court have probably been on the docket for more than two years!

Third, like Nolan, I believe that “Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years.” Individuals living in the United States are entitled to constitutional due process under Supreme Court decisions. A fair hearing before an impartial adjudicator normally is a minimum requirement for due process. A DHS Immigration Officer is not an impartial judicial or quasi-judicial adjudicator.

The situations in which the Federal Courts have permitted DHS Immigration Officers to enter final removal orders against individuals who are “in the United States” (as opposed to at the border, in fact or “functionally”) are fairly limited. One is the situation of an individual who was never admitted as a Lawful Permanent Resident and who committed an aggravated felony. This doesn’t apply to most individuals in the U.S. without documentation.

As Nolan points out, the Federal Courts have also approved “expedited removal” under the current regulations which limit applicability to those who have been here fewer than 14 days and are apprehended within 100 miles of the border — in other words, those who have very minimal connection with the U.S. and have not established any type of “de facto” residence here. In making those limited (but still probably wrong from a constitutional standpoint) decisions some courts have indicated that they would have reservations about reaching the same result in the case of someone who had actually been here for a considerable period of time and had established a residence in the United States.

For example, in Castro v. DHS, 835 F.3d 433 (3rd Cir. 2016), cert. denied, a case upholding expedited removal under the current regulations, the court states:

Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.

Here’s a link to the full Castro opinion and my previous blog on the decision:

http://wp.me/p8eeJm-IG

I predict that, as in other areas, by “pushing the envelope” on the expedited removal statute, the Trump Administration will eventually force the Federal Courts, including the Supreme Court, to find it unconstitutional at least in some applications.

The Administration would be smarter to go about Immigration Court docket reduction by limiting new enforcement actions to recent arrivals and those who have engaged in activities that endanger the public health and safety, similar to what the Obama Administration did. This should be combined with a realistic legalization proposal and return to a robust use of prosecutorial discretion (“PD”) that would remove many of the older, nonprioty cases from the docket.

Eliminating rights, “fudging” due process, and pretending like judicial and quasi-judicial resources are infinitely expandable will not solve the problem in the long run. It’s time for some “smart” immigration enforcement and action to reform the Immigration Courts into an independent court system. But, I’d ever accuse the Trump Administration of being “smart,” particularly in the area of immigration policy.

PWS

10-19-17

BIA’S BOGUS BLATHER BLOWS BY BASICS IN TRYING TO “GET TO NO!” — Appellate Immigration Judges Invade IJ’s Authority To Reverse Favorable Credibility Determination — ALIMBAEV v. ATTORNEY GENERAL — When Will Article III Judges Stop Ducking The Glaring Constitutional Due Process Problems With The Current U.S. Immigration Court Structure?

http://www2.ca3.uscourts.gov/opinarch/164313p.pdf

Alimbaev v. Attorney General, 3rd Cir., 09-25-17, published

Before: JORDAN and KRAUSE, Circuit Judges,

and STEARNS, District Judge.*

* The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation.

OPINION BY: Judge Krause

KEY QUOTE:

“This disconcerting case, before our Court for the second time, has a lengthy procedural history marked by conflict between the Board of Immigrations Appeals (BIA) and the Immigration Judge (IJ) and fueled by troubling allegations that Petitioner, an Uzbek national, relished watching violent terroristic videos, while apparently harboring anti-American sympathies. The issue on appeal, however, is whether the BIA correctly applied the clear error standard of review, as required, when reviewing the IJ’s factfinding in this case—an inquiry that highlights the role of faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations. Because we conclude that the BIA misapplied the clear error standard when reversing the IJ’s finding that Petitioner’s testimony was credible, we will grant the petition for review of the BIA’s removal order, vacate the denial of Petitioner’s applications for adjustment of status, withholding of removal, and protection under the Convention Against Torture (CAT), and remand once more to the BIA.”

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Read the entire, rather lengthy, decision at the above link.

While the Third Circuit Judges were obviously unhappy with the performance of the BIA Panel here, I’ll bet decisions like this don’t hurt the Appellate Immigration Judges involved wth their boss, Jeff Sessions. Running over the regulations, Due Process, fairness, impartiality, and objectivity in the name of getting perceived “bad guys” out of the country is probably what “Old Gonzo” expects and even demands from his wholly owned judiciary.

There is a massive gap in expectations here. The Third Circuit speaks of “faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity.” But a U.S. Immigration Court System (including the BIA) headed by the “Immigration Enforcer in Chief,” could not possibly achieve “impartiality, fairness, and objectivity” either in appearance or in practice.

Sessions exudes anti-immigrant enforcement zeal, xenophobia, White Nationalism, and disregard for the rule of law as it is commonly understood on a daily basis. He also regularly misinterprets statistics to paint a false picture of an “alien crime wave” and positively gloried in the chance to publicly disrespect and threaten to remove Dreamers.

How could these very clear messages that Sessions despises both legal and undocumented immigrants of all types, considers them bad for America, and would like them gone and restricted in the future, possibly not get down to to the mere civil servants who work for him? Do you think that Sessions is really going to defend an Immigration Court and/or a BIA that publicly and regularly stands up for the Due Process rights of foreign nationals and their rights to favorable consideration under many provisions of the immigration law? That doesn’t fit with his “restrictionist myth” that all undocumented immigrants are “law breakers” who deserve to be “punished” by removal from the United States.

Look how Trump heaps disrespect on Article III Judges who don’t go along with his illegal programs. How do you think he’s going to react if one of Jeff Sessions’s wholly owned judges stands up to one of the Administration’s gonzo legal positions or illegal policies? And, neither Immigration Judges nor Appellate Immigration Judges have the protections of life tenure. Do you seriously think that Jeff Sessions is really going to stand up for the right of one of his judges to “Just Say No” to Trump. In any event, Sessions has the the totally inappropriate and legally questionable authority to reverse any Immigration Court decision he doesn’t like anyway. That robs the whole system of any semblance of fairness, impartiality, and objectivity.

So, the Third Circuit Judges are tiptoeing around the real problem here. You can’t possibly have “impartiality, fairness, and objectivity” from an Immigration Court run by Jeff Sessions, a man who throughout his long career has demonstrated none of those characteristics. At some point, the Third Circuit Judges and their Article III colleagues elsewhere are going to have to face up to the glaring constitutional due process problems with the current U.S. Immigration Court structure. The question is when?

PWS

09-27-17

MUST SEE TV FROM PBS: Judge Dana Leigh Marks Explains The Dire Backlogs In U.S. Immigration Courts & Why They Are Becoming Worse Every Day!

http://www.pbs.org/newshour/bb/dire-immigration-court-backlog-affects-lives/

Click the above link to see John Yang of PBS interview United States Immigration Judge Dana Leigh Marks of the U.S. Immigration Court in San Francisco, speaking in her capacity as President of the National Association of Immigration Judges (“NAIJ”).

FULL DISCLOSURE: I am a “retiree member” of the NAIJ.

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

As this interview shows, this problem has been building steadily under the past three Administrations. However, the “gonzo enforcement” policies of the Trump Administration, combined with “ADR” (“Aimless Docket Reschuffling”) caused by poorly planned, and in many cases unneeded, details of Immigration Judges from backlogged “home dockets” to obscure detention centers along the Southern Border in response to Trump’s Executive Orders on enforcement, made worse by constant threats to mindlessly throw DACA individuals and TPS holders into the already overwhelmed system have greatly and unnecessarily aggravated an already bad situation.

Judge Marks points out that nearly 40% of the current U.S. Immigration Judiciary, including all of the most experienced judges, are eligible or nearly eligible to retire. That would mean a whopping 140 new Immigration Judge hires in a short period of time in addition to filling the current approximately 50 vacancies and any other positions that might become available. That adds up to approximately 200 new judicial vacancies, not counting any additional positions that Congress might provide.

No Administration has been able to competently hire that many new judges using a proper merit selection process. Indeed, the last Administration, using a system that could hardly be viewed as ”merit based,” took an astounding average of nearly two years to fill a vacancy on the U.S. Immigration Court! That’s amazing considering that these are administrative judges who do not require Senate confirmation.

The total unsuitability of the U.S. Justice Department to be administering the U.S. Immigration Courts has been demonstrated not only in terns of misuse of the courts for politicized law enforcement objectives, but also in terms of poor planning and stunningly incompetent judicial administration.

We need an independent Article I U.S. Immigration Court, and we need it now!

PWS

09-20-17

U.S. IMMIGRATION COURTS: Judge Lawrence O. “Burmanator” Burman (SOLELY In His NAIJ Officer Capacity) Gives Rare Peek Inside U.S. Immigration Courts’ Disaster Zone From A Sitting Trial Judge Who “Tells It Like It Is!”

Judge Burman appeared at a panel discussion at the Center for Immigration Studies (“CIS”). CIS Executive Director Mark Krikorian; Hon. Andrew Arthur, former U.S. Immigration Judge and CIS Resident Fellow; and former DOJ Civil Rights Division Official Hans von Spakovsky, currently Senior Legal Fellow at the Heritage Foundation were also on the panel entitled “Immigration Court Backlog Causes and Solutions” held at the National Press Club on Aug. 24, 2017. Here’s a complete transcript furnished by CIS (with thanks to Nolan Rappaport who forwarded it to me).

Here’s the “meat” of Judge Burman’s remarks:

“First, the disclaimer, which is important so I don’t get fired. I’m speaking for the National Association of Immigration Judges, of which I am an elected officer. My opinions expressed will be my own opinions, informed by many discussions with our members in all parts of the country. I am not speaking on behalf of the Department of Justice, the Executive Office for Immigration Review, the chief judge, or anybody else in the government. That’s important.

What is the NAIJ, the National Association of Immigration Judges? We’re a strictly nonpartisan organization whose focus is fairness, due process, transparency for the public, and judicial independence. We’re opposed to interference by parties of both administrations with the proper and efficient administration of justice. We’ve had just as much trouble with Republican administrations as Democratic administrations.

It’s been my experience that the people at the top really don’t understand what we do, and consequently the decisions they make are not helpful. For example, the – well, let me backtrack a little bit and talk about our organization.

Immigration judges are the – are the basic trial judges that hear the cases. Above us is the Board of Immigration Appeals, who function as if they were an appellate court. We, since 1996, have been clearly designated as judges by Congress. We are in the statute. We have prescribed jurisdiction and powers. Congress even gave us contempt authority to be able to enforce our decisions. Unfortunately, no administration has seen fit to actually give us the contempt authority. They’ve never done the regulations. But it’s in the statute.

The Board of Immigration Appeals is not in the statute. It has no legal existence, really. It’s essentially an emanation of the attorney general’s limitless discretion over immigration law. The members of the Board of – Board of Immigration Appeals are – in some cases they’ve got some experience. Generally, they don’t have very much. They’re a combination of people who are well-respected in other parts of the Department of Justice and deserve a well-paid position. Very often they’re staff attorneys who have basically moved up to become board members, skipping the immigration judge process. Very few immigration judges have ever been made board members, and none of them were made board members because they had been immigration judges. If they were, it was largely a coincidence.

The administration of the Executive Office for Immigration Review in which we and the BIA are housed is basically an administrative agency. We are judges, but we don’t have a court. We operate in an administrative agency that’s a lot closer to the Department of Motor Vehicles than it is to a district court or even a bankruptcy court, an Article I type court.

Our supervisors – I’m not sure why judges need supervisors, but our supervisors are called assistant chief immigration judges. Some of them have some experience. Some of them have no experience not only as judges, but really as attorneys. They were staff attorneys working in the bowels of EOIR, and gradually became temporary board members, and then permanent board members.

Interestingly, when a Court of Appeals panel is short a judge, they bring up a district judge. EOIR used to do that, by bringing up an immigration judge to fill out a panel at the board. They don’t do that anymore. They appoint their staff attorneys as temporary board members, a fact that is very shocking when we tell it to federal judges. They can’t imagine that a panel would be one member short and they’d put their law clerk on the panel, but that’s what goes on.

The top three judges until recently – the chief judge and the two primary deputies – had no courtroom experience that I’m aware of. Two of them have gone on. Unfortunately, one of them has gone on to be a BIA member. The other retired.

Our direct supervisors are the assistant chief immigration judges. Some are in headquarters, and they generally have very little experience. Others are in the field, and they do have some experience – although, for example, the last two ACIJs – assistant chief immigration judges – who were appointed became judges in 2016. So they don’t have vast experience. Well, they may be fine people with other forms of experience, but this agency is not run by experienced judges, and I think it’s important to understand that.

There’s a severe misallocation of resources within EOIR. I think Congress probably has given us plenty of money, but we misuse it. In the past administration, the number of senior executive service – SES – officials has doubled. Maybe they needed some more administrative depth, although I doubt it. The assistant chief immigration judges are proliferating. I think there’s 22 of them now. These are people who may do some cases. Some of them do no cases. They generally don’t really move the ball when it comes to adjudicating cases. Somehow, the federal courts are able to function without all of these intermediaries and supervisory judges, and I think that we would function better without them as well.

To give you a few examples – I could give you thousands of examples, and if you want to stick around I’ll be happy to talk about it. Art was talking about the juvenile surge. I think it was approximately 50,000 juveniles came across the border. To appear to be tough, I guess, they were prioritized. The official line is, you know, we’re going to give them their asylum hearings immediately. I’m not sure what kind of asylum case that a 6-year-old might have, but we would hear the case and do it quickly, and then discourage people from coming to our country. But, in fact, what’s actually happened is the juvenile docket is basically a meet-and-greet. The judges are not – first of all, I’m not allowed to be a juvenile judge. The juvenile judges are carefully selected for people who get along well with children, I guess. (Laughter.) Really, what they do is they just – they see the kids periodically, and in the meantime the children are filing their asylum cases with the asylum office, where they’re applying for special immigrant juvenile status, various things. But judge time is being wasted on that.

Another example is the current surge. I have a really busy docket. Art was talking about cases being scheduled in 2021. The backlog for me is infinite. I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020. So they’re just piling up in the ether somewhere.

As busy as I am, they send me to the border, but these border details are politically oriented. First of all, we probably could be doing them by tele-video. But assuming that they want to do them in person, you would think that they would only send the number of judges that are really needed. But, in fact, on my last detail of 10 business days, two-week detail, two days I had no cases scheduled at all. And back home having two cases off the docket, which almost never happens – or two days off the docket, which almost never happens, would be useful because I could work on motions and decisions. But when I’m in Jena, Louisiana, I can’t really work on my regular stuff. So I’m just reading email and hanging out there.

The reason for that is because there’s been no attempt to comply with the attorney general’s request that we rush judges to the border with, at the same time, making sure that there’s enough work or not to send more judges than is really necessary to do the work. I assume the people that run our agency just want to make the attorney general happy, and they send as many judges to the border as possible.

One particularly bizarre example was in San Antonio. The San Antonio judges were doing a detail to one of the outlying detention facilities by tele-video. But they wanted to rush judges to the border, so they assigned a bunch of judges in the country that had their own dockets to take over that docket by tele-video on one week’s notice. Well, one week’s notice meant that the judges in San Antonio couldn’t reset cases. You’ve got to give at least 10 days’ notice of a hearing by regulation. So we had judges taken away from their regular dockets to do that; judges who normally would have done that who already were on the border – San Antonio is pretty closer to the border – didn’t have anything to do.

Now, those may be extreme cases, but this happens all too much, and it’s because of political interference. And like I say, it’s got nothing to do with party. We’ve had the same problem with Democratic and Republican administrations. It comes from political decisions animating the process and people who don’t really understand what they’re managing, just attempting to placate the guy on the top. So that’s basically what’s been happening.

Am I over my 10 minutes here?

MR. KRIKORIAN: Yeah. Well, I mean, you’re right at it. If you’ve got a couple more minutes, that’s fine.

JUDGE BURMAN: Well, let me just go over some possible suggestions.

Let judges be judges – immigration judges that control their own courts and their own dockets. We should be able to supervise our own law clerks and our own legal assistants, which currently we don’t. And the contempt authority we were given in 1996 should eventually – should finally get some regulations to implement it.

EOIR’s overhead needs to be reduced. There’s too many positions at headquarters and too few positions in the field. When EOIR was originally set up, the idea was that each judge would need three legal assistants to docket the cases and find the files and make copies and all that. At one point last year we were down to less than one legal assistant per judge in Arlington, where I am, and in Los Angeles it was even worse. When you do that, the judge is looking for files, the judge is making copies, the judge doesn’t have the evidence that’s been filed. There’s nothing more annoying than to start a hearing and to find that evidence was filed that I don’t have. The case has to be continued. I have to have a chance to find the evidence and review it.

It would be nice if our management were more experienced than they are, or at least have some more courtroom experience.

We need an electronic filing system like all the other courts have. Fortunately, that’s one thing that Acting Director McHenry has said is his top priority, and I think that he will take care of that.

The BIA is a problem. The BIA doesn’t have the kind of expertise that the federal courts would defer to. Consequently, I think a lot of the bad appellate law that Art was referring to is caused by the fact that the BIA really doesn’t have any respect in the federal court system. They’re not immigration experts. They want their Chevron deference, but they are not getting it. They’re not getting it from the Court of Appeals. They’re not getting it from the Supreme Court, either.

The BIA also remands way too many cases. When we make a decision, we send it up to the BIA. We don’t really care what they do. They could affirm us. They could reverse us. We don’t want to see it back. We’ve got too much stuff to see them back. And this happens all the time. If they remand the case, they don’t ever have to take credit for the decision that they make. I assume that’s why they’re doing it, to try to make us do it.

We need a proper judicial disciplinary system. Starting in 2006, which is where the backlog problem began, the attorney general first of all subjected us to annual appraisals, evaluations, which previously OPM had waived due to our judicial function. So that’s a waste of time. Judges were punished for the – for things that are not punishment. Judges were punished because a Court of Appeals would say that you made a mistake or he was rude or – it’s just crazy. Judges were punished or could be punished for granting – for not granting continuances. No judge was ever punished for granting a continuance. So it’s no surprise that, as I pointed out, continuances have been granted at a much greater level – in fact, too great a level. But when in doubt, we continue now because if we don’t do that we’re subject to punishment, and nobody really wants that.

And finally, the ultimate solution, I think, is an Article I court like the bankruptcy court – a specialized court, could be in the judicial branch, could be in the executive branch – to give us independence, to ensure that we have judges and appellate judges who are appointed in a transparent way, being vetted by the private bar, the government, and anybody else.

And I’m way over my 10 minutes, so I’ll be – I’ll be sure to babble on later if you want me to. Thank you.”

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Judge Arthur’s kind opening words about the late Juan Osuna were a nice touch. One of Juan’s great strengths as person, executive, judge, and teacher was his ability to maintain good friendships with and respect from folks with an assortment of ideas on immigration.

Judge Burman’s “no BS” insights are as timely as they are unusual. That’s because U.S. Immigration Judges are not encouraged to speak publicly and forthrightly about their jobs.

The Supervisory Judge and the EOIR Ethics Office must approve all public appearances by U.S. Immigration Judges including teaching and pro bono training. A precondition for receiving permission is that the judge adhere to the DOJ/EOIR “party line” and not say anything critical about the agency or colleagues. In other words, telling the truth is discouraged.

As a result, most Immigration Judges don’t bother to interact with the public except in their courtrooms. A small percentage of sitting judges do almost all of the outreach and public education for the Immigration Courts.

While EOIR Senior Executives and Supervisors often appear at “high profile events” or will agree to limited press interviews, they all too often have little if any grasp of what happens at the “retail level” in the Immigration Courts. Even when they do, they often appear to feel that their job security depends on making things sound much better than they really are or that progress is being made where actually regression is taking place.

In reality, the system functioned better in the 1990s than it does two decades later. Due Process protection for individuals — the sole mission of EOIR — has actually regressed in recent years as quality and fairness have taken a back seat to churning numbers, carrying out political priorities, not rocking the boat, and going along to get along. Such things are typical within government agency bureaucracies, but atypical among well-functioning court systems.

I once appeared on a panel with a U.S. District Judge. After hearing my elaborate, global disclaimer, he chuckled. Then he pointedly told the audience words to the effect of “I’m here as a judge because you asked me, and I wanted to come. I didn’t tell the Chief Judge I was coming, and I wouldn’t dream of asking his or anyone else’s permission to speak my mind.”

I hope that everyone picked up Judge Burman’s point that “Aimless Docket Reshuffling” or “ADR” is still in full swing at EOIR. Cases are shuffled, moved around, taken off docket, and then restored to the docket to conceal that the backlog in Arlington goes out beyond the artificial “2020 limit” that Judge Burman has been instructed to use for “public consumption.” But there are other cases out there aimlessly “floating around the ether.” And, based on my experience, I’m relatively certain that many courts are worse than Arlington.

Judge Burman also makes another great “inside baseball” point — too many unnecessary remands from the BIA. Up until the very ill-advised “Ashcroft Reforms” the BIA exercised de novo factfinding authority. This meant that when the BIA disagreed with the Immigration Judge’s disposition, on any ground, they could simply decide the case and enter a final administrative order for the winning party.

After Ashcroft stripped the BIA of factfinding authority, nearly every case where the BIA disagrees with the lower court decision must be returned to the Immigration Court for further proceedings. Given the overloaded docket and lack of e-filing capability within EOIR, such routine remands can often take many months or even years. Sometimes, the file gets lost in the shuffle until one or both parties inquire about it.

The Immigration Courts are also burdened with useless administrative remands to check fingerprints in open court following BIA review. This function should be performed solely by DHS, whose Counsel can notify the Immigration Court in rare cases where the prints disclose previously unknown facts. In 13 years as an Immigration Judge, I had about 3 or 4 cases (out of thousands) where such “post hoc” prints checks revealed previously unknown material information. I would would have reopened any such case. So, the existing procedures are unnecessary and incredibly wasteful of limited judicial docket time.

I agree completely with Judge Burman that the deterioration of the Immigration Courts spans Administrations of both parties. Not surprisingly, I also agree with him that the only real solution to the Courts’ woes is an independent Article I Court. Sooner, rather than later!

PWS

09-03-17

HON. JEFFREY CHASE ON WHY WE NEED AN ARTICLE I IMMIGRATION COURT!

https://www.jeffreyschase.com/blog/2017/8/17/the-need-for-an-independent-immigration-court

Jeffrey writes:

“On August 8, the Department of Justice issued a highly unusual press release that inadvertently illustrated the need for an independent Article I immigration court. Titled “Return to Rule of Law Under Trump Administration Marked by Increase in Key Immigration Statistics,” the release proudly cited a 30 percent increase in the number of people ordered deported by immigration judges since the present administration took office (which of course corresponded with a marked decrease in the number of individuals granted relief and allowed to remain legally in the country). The press release was posted on the public website of the Executive Office for Immigration Review, the agency which includes both the immigration courts and the Board of Immigration Appeals.

On his blog immigrationcourtside.com, former BIA chairman Paul Schmidt drew some apt analogies, imagining what the reaction would be if the Supreme Court were to proudly announce that in support of Donald Trump’s deregulaton initiative, it had struck down 30 percent more regulations since he took office? Or if a circuit court released a self-congratulatory statement that in support of the president’s war on drugs, it issued 30 percent more convictions and 40 percent longer sentences for drug crimes than under the previous administration? Such statements would be unthinkable, and would trigger a strong backlash. But not so for the August 8 announcement. Fortunately, EOIR itself did not sink to issuing such a statement. Unfortunately, EOIR felt the need to post the release in a prominent place on its website (either because it was instructed to do so, or was afraid not to).

The National Association of Immigration Judges (the immigration judges’ union) has for years made a strong argument for the creation of an independent Article I immigration court. The 334 immigration judges are the only judges among the Department of Justice’s 112,000 total employees. The concept of the judges’ independence and political neutrality never really took within DOJ. When both the former INS and EOIR were housed within Justice (prior to the former being moved to the Department of Homeland Security after the reorganization that followed the 9/11 tragedy), INS higher-ups would make complaints about immigration judges known to the Deputy Attorney General’s office, which oversaw EOIR’s director, a process that would be highly improper in other courts. When 1996 legislation provided immigration judges with contempt power over attorneys appearing in their courts, INS managed to indefinitely block implementing DOJ regulations because the agency did not wish to afford immigration judges such authority over their fellow DOJ attorneys within INS; as a result, the judges still lack such contempt power 21 years later.

. . . .

It is a cornerstone of our justice system that judges not only be impartial, but that they also avoid the appearance of impartiality. 28 U.S.C. § 455(a) requires federal judges to recuse themselves in any proceeding in which their impartiality might reasonably be questioned. How can the impartiality of an immigration judge not be questioned when the agency that employs him or her releases statements celebrating the increase in the percentage of cases in which deportations are ordered as a “return to the rule of law?”

The partisan pronouncement raises questions not only as to the independence of the judges in their decision making. It also casts a cloud over hiring and policy decisions by EOIR’s management. In hiring new judges and Board members, will EOIR’s higher-ups feel pressured to choose candidates likely to have higher deportation rates? Are they likely to implement policies aimed at increasing fairness or expediency? As an example, let’s use what Paul Schmidt aptly refers to as “aimless docket reshuffling,” in which immigration judges are detailed away from their home courts to hear cases elsewhere. Of course, this means that the individuals scheduled for hearing in the home court (who have likely been waiting two years for their hearing) need to have their cases adjourned due to the judge’s absence. I have no information as to what factors go into making these detailing decisions. But hypothetically, if EOIR’s managers feel pressure to produce more deportations, might they consider shifting judges in high-volume courts in large cities such as New York or Los Angeles, where the respondents are likely to be represented by counsel, have adequate time to prepare and gather evidence, and have access to call witnesses (including experts), to instead hear cases of detained, recently-arrived respondents in remote areas where they have less access to counsel, community support, evidence, or witnesses? In which of those two scenarios might the judge “accomplish” more deportations in the same amount of time?

There is some irony in the use of the term “rule of law” in the Aug. 8 press release, because rules of law take a great deal of time to develop properly. In a 2013 article titled “Let Judges Be Judges,” , Hon. Dana Leigh Marks, the president of the National Association of Immigration Judges, stated that allowing “immigration judges to consider the individual circumstances unique to each case” in an independent Article I court setting “would create a fine-tuned tool…instead of the blunt instrument that now exists.” A “fine-tuned tool” is needed, as many of the claims presently being heard involve very complex legal issues. Many cases involve those fleeing an epic humanitarian crisis in Central America. Case law continues to develop, as leading asylum attorneys and scholars have spent years crafting nuanced theories to clarify the nexus between the serious harm suffered or feared and one of the five protected grounds required for a grant of asylum. In other claims from countries such as Albania or the former Soviet republics, highly detailed testimony from country condition experts is required to educate judges as to specific dangers not mentioned in the generalized State Department country reports. This type of painstaking development of the record cannot be accomplished under conditions termed in a 2009 report of the Appleseed Foundation as “assembly line injustice.”

In summary, a Department of Justice which chooses to publicly celebrate accelerated hearings resulting in orders of deportation as a positive development cannot oversee an immigration court system which aspires to provide “due process and fair treatment for all parties involved.”

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

Head over to Jeffrey’s great blog at the above link for the complete story.

Jeff Sessions seldom, if ever, has a kind word to say about migrants of any type. He has been the enthusiastic “point man” for the President’s xenophobic, White Nationalist immigration enforcement program. He has promoted and repeated false narratives about immigrants and crime. The idea of him running the U.S. Immigration Court system charged with proving fair hearings to migrants is preposterous on it’s face.

And, it’s not just Sessions. All Attorneys General have the actual or apparent conflict of interest described by Jeffrey Chase. Sessions is just one of the most outrageous examples to date. If an Immigration Judge made the type of statement set forth in the DOJ press release, he or she would undoubtedly be charged with ethical violations. And, let’s not forget that under the bizarre structure of the U.S. Immigration Courts, the Attorney General has authority to “certify” any individual case to him or her self and substitute his decision for that of the Immigration Judge and the BIA.

PWS

08-16-17

NAIJ PRESIDENT JUDGE DANA LEIGH MARKS DETAILS MELTDOWN IN U.S. IMMIGRATION COURTS — CALLS ON CONGRESS FOR URGENT ACTION ON ARTICLE I IMMIGRATION COURT!

https://www.naij-usa.org/images/uploads/publications/NAIJ_-_Snapshot_CRISIS_FACING_OUR_IMMIGRATIONJune_2017.pdf

Judge Marks writes:

“SNAPSHOT OF THE CRISIS FACING OUR IMMIGRATION COURTS TODAY SALIENT FACTS AND URGENT NEEDS

June 2017

As America wrestles with unprecedented challenges to our immigration system, we are once again at a delicate juncture where we must avoid repeating the mistakes of our past. The most overlooked and often forgotten piece of the complicated immigration puzzle facing the nation is our immigration court system. Action is needed NOW to protect these unique courts from politicization and dysfunction. They are often the only face of American justice that non-citizens experience, and our values must be embodied by them. What is needed is an efficient, fair system that assures independent and timely decisions which protect the public from those who may be dangerous to our communities, and allows noncitizens who qualify (because of close family connections, employment here, or persecution in their home country) to stay here.

RECALCITRANT CASE BACKLOGS

As of the end of April, 2017, the Immigration Court backlog stood at 585,930.i The caseload of the Immigration Court has more than doubled since 2010. ii

LENGTHY DELAYS

The average number of days a case was pending on the Immigration Court docket until decision was 670 days as of April 30, 2017, although 9 states (in order of descending magnitude: Colorado, Illinois, Ohio, New Jersey, Texas, Michigan, Nebraska, Arizona and California) exceeded that average.iii The longest wait time is in Colorado, which is 1,002 days.iv

SURGING CASELOAD ON THE HORIZON

In 2014, an unprecedented influx of unaccompanied minors at our nation’s southwest border was labeled a humanitarian crisis, prompting the Senate to nearly double the available funding for care and resettlement of child migrants.v Those cases remain on our dockets and are not easily resolved: of the 229,357 pending juvenile cases as of April 30, 2017, 42% had no legal representation.vi It is inevitable that this influx caused dramatic increases in our dockets and will impact our system for years to come.vii Since January of 2017, our courts have been experiencing another significant increase in new cases resulting from the initiatives announced by President Trump and DHS.viii Many observers agree this is overwhelming an already strained system.ix During the first three months following these announcements, immigration arrests increased 38% over the same period one year earlier.x

FAILURE TO MEET PREDICTABLE STAFFING NEEDS IN A TIMELY FASHION

The inability of the Immigration Courts to meet these surges in caseload is due, in large part, to the chronic lack of sufficient court staff. As long ago as 2006, after a comprehensive review of the Immigration Courts by Attorney General Gonzales, it was determined that a judge corps of 230 Immigration Judges was inadequate for the caseload at that time (approximately 168,853 pending cases) and should be increased to 270.xi Despite this finding, there were less than 235 active field Immigration Judges at the beginning of FY 2015.xii To make matters much worse, 39% of all Immigration Judges are currently eligible to retire.xiii Even with a recent renewed emphasis on hiring, the current number of Immigration Judges nationwide stands at approximately 318 today (298 who are actually in field courts), well below authorized hiring levels of 384.xiv One expert observer recommends adding at least 150 immigration judges to the corps based on its meticulous analysis of past caseload needs.xv The American Bar Association, Administrative Conference of the United States and two expert roundtables convened by Georgetown University’s Institute for the Study of International Migration have all called for dramatically increased resources to staff up our courts.xvi

INADEQUATE SPACE, FACILITIES AND EQUIPMENT

As caseloads explode, the Immigration Courts find themselves in desperate need of additional physical space and facilities to conduct hearings, to accommodate both staff and the voluminous legal filings. Modernized equipment and electronic filing initiatives are needed immediately in order to respond.xvii The current courtrooms are too small to accommodate the large numbers of families now appearing before our courts, raising serious concerns regarding public safety and security. In addition, we don’t have enough courtrooms or courtrooms in the appropriate places to address the caseload.

FAILURE TO PROVIDE ESSENTIAL TOOLS FOR ADJUDICATIONS

Despite express congressional authorization of contempt power for Immigration Judges in 1996, the Department of Justice still has not promulgated implementing regulations. Without authority to impose civil monetary sanctions for attorney misconduct, Immigration Judges lack an important tool in controlling court proceedings over which they preside.

DEEPENING DISCONNECT IN FUNDING BETWEEN DHS AND THE IMMIGRATION COURTS

In the past decade, budgets for components in the Department of Homeland Security (Customs and Border Patrol and Immigration and Customs Enforcement) rose approximately 300% compared to 70% for the Executive Office of Immigration Review.xviii In the meantime, while grappling with this meteoric rise in our dockets, budget bills fail to “right-size” this funding ratio and properly provide for the predictable needs of our courts. xix

CHRONIC SCARCITY OF RESOURCES CRIPPLES DAILY OPERATIONS OF THE COURT

A catastrophic hardware failure on April 12, 2014 took the docketing system off-line for five weeks, impacting the public hotline, digital audio recording and access to the electronic docketing database.xx We fear occurrences like this are just the tip of the iceberg as our chronically resource-starved system continues to face the unprecedented challenges of aging technology, surging caseloads and potential retirements.xxi We remain behind the curve, lacking state-of-the art-technology, e-filing and a reliable corps of skilled interpreters. Cases are cancelled on a regular basis because of the language services contractor’s inability to provide interpreters and serious due process concerns are implicated as the quality of interpreters which are provided has diminished.

JUDGES PUSHED TO THE BRINK

More than five years ago, Immigration Judges reported stress and burnout at higher levels than prison wardens or doctors at busy hospitals.xxii After continuing to struggle in an environment of decreased resources and skyrocketing caseloads for so long, morale is at an all-time low and stress at an all-time high. An unprecedented number of retirements is looming.

SOLUTION

While it cannot be denied that additional resources are desperately needed immediately, resources alone cannot solve the persistent problems facing our Immigration Courts. Structural reform can no longer be put on the back burner. Since the 1981 Select Commission on Immigration, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced.xxiii In the intervening years, a strong consensus has formed supporting this structural change. xxiv For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now “[m]ost immigration judges and attorneys agree the long term solution to the problem is to restructure the immigration court system….” xxv

The time has come to undertake structural reform of the Immigration Courts. It is apparent that until far-reaching changes are made, the problems which have plagued our tribunals for decades will persist. For years NAIJ has advocated establishment of an Article I court. We cannot expect a different outcome unless we change our approach to the persistent problems facing our court system. Acting now will be cost effective and will improve the speed, efficiency and fairness of the process we afford to the public we serve. Our tribunals are often the only face of American justice these individuals experience, and it must properly reflect the principles upon which our country was founded. Action is needed now on this urgent priority for the Immigration Courts. It is time to stop the cycle of overlooking this important component of the immigration enforcement system – it will be a positive step for immigration enforcement and due process.

For additional information, visit our website at www.naij-usa-org or contact:

Dana Leigh Marks, President
National Association of Immigration Judges
100 Montgomery Street, Suite 800
San Francisco, CA 94104
415-705-0140
Dana.Marks@usdoj.gov and danamarks@pobox.com

i Transactional Records Access Clearinghouse (TRAC), Syracuse University, Backlog of Pending Cases in Immigration Courts as ofDecember2016,http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php; TRAC,SyracuseUniversity, Average Time Pending Cases Have Been Waiting in Immigration Courts as of April 2017, http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php/.

ii Id. and Human Rights First, Reducing the Immigration Court Backlog and Delays, http://www.humanrightsfirst.org/sites/default/files/HRF-Backgrounder-Immigration-Courts.pdf

iii

Supra note i.

Supra note i.
See Presidential Memorandum For the Heads of Executive Departments and Agencies, June 2, 2014,

http://www.whitehouse.gov/the-press-office/2014/06/02/presidential-memorandum-response-influx-unaccompanied-alien-

children-acr and David Rogers, Senate Democrats Double Funding for Child Migrants, POLITICO, June 10, 2014,http://www.politico.com/story/2014/06/child-migrants-immigration-senate-democrats-107665.html

vi TRAC, http://trac.syr.edu/phptools/immigration/juvenile/

vii PBS News Hour, Last year’s child migrant crisis is this year’s immigration court backlog, http://www.pbs.org/newshour/wp-content/uploads/2015/06/Last-years-child-migrant-crisis-is-this-years-immigration-court- backlog.mp3, June 18, 2015

viii Increase in US Immigration Enforcement Likely to Mean Jump in Deportations, VOA, February 3, 2017, https://www.voanews.come/a/increased-us-immigration-enforcement-to-mean-jump-in-deportations/3705604.html

ix Priscilla Alvarez, Trump’s Immigration Crackdown Is Overwhelming a Strained System, THE ATLANTIC, April 21, 2017, https://www.theatlantic.com/politics/archive/2014/04/trump-immigration-court-ice/523557

x Caitlin Dickerson, Immigration Arrests Rise Sharply as a Trump Mandate is Carried Out, THE NEW YORK TIMES, May 17, 2017, https://www.nytimes.com/2017/05/17/us/immigration-enforcement-ice-arrests.html?_r=0

xi See Press Release, Dep’t of Justice, Attorney General Alberto R. Gonzales Outlines Reforms for Immigration Courts and Board of Immigration Appeals (Aug. 9, 2006), available at http://www.justice.gov/opa/pr/2006/August/06_ag_520.html , and TRAC, Improving the Immigration Courts: Efforts to Hire More Judges Fall Short, http://trac.syr.edu/immigration/reports/189/ .

xii Approximately 20 Immigration Judges are now serving in exclusively or primarily managerial positions with little or no pending caseload. See EOIR Immigration Court Listings, http://www.justice.gov/eoir/sibpages/ICadr.htm. Moreover, it is extremely difficult to precisely calculate the number of IJs at any given point due to the rapid rate of retirements. See Homeland Security Newswire, U.S. Govt. the Largest Employer of Undocumented Immigrants, May 30, 2014, http:www.homelandsecuritynewswire.com/dr20140530-u-s-govt-the-largest-employer-of-undocumented-immigrants

xiii GAO, Immigration Courts – Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, GAO-17-438 (June, 2017).

xiv Supra note xiv; https://www.justice.gov/eoir/eoir-immigration-court-listing
xv See, supra, Human Rights First, Reducing the Immigration Court Backlog and Delays,

Click to access HRF-Backgrounder-Immigration-Courts.pdf

xvi American Bar Association, Reforming the Immigration Court System (2010), Administrative Conference of the United States (ACUS), “Immigration Removal Adjudication, Committee on Adjudication, Proposed Recommendation,” June 14 – 14, 2012; Georgetown University, Institute for the Study of International Migration, Refugee, Asylum and Other Humanitarian Policies: Challenges for Reform, report on expert’s roundtable held on October 29, 2014, available at https://isim.georgetown.edu/sites/isim/files/files/upload/Asylum%20%26%20Refugee%20Meeting%20Report.pdf

xvii Supra note xiv.
xviii See, Marc R. Rosenblum and Doris Meissner, The Deportation Dilemma, Reconciling Tough and Humane Enforcement,

MIGRATION POLICY INSTITUTE, April, 2014, http://www.migrationpolicy.org/research/deportation-dilemma-reconciling-tough- humane-enforcement

xix Erica Werner, Spending Leaves Out Immigration Courts, ASSOCIATED PRESS, Sept. 18, 2014, http://hosted.ap.org/dynamic/stories/U/US_CONGRESS_IMMIGRATION_OVERLOAD?SITE=AP&SECTION=HOME&TEMPLATE- DEFAULT&CTIME=2014-08-18-16-57-40

xx Elizabeth Summers, Weeks-Long Computer Crash Sends U.S. Immigration Courts Back to Pencils and Paper, PBS NEWSHOUR, May 23, 2014, http://www.pbs.org/newshour/updates/weeks-long-computer-crash-sends-u-s-immigration-courts-back- pencils-paper/.

xxi Laura Wides-Munoz, Nearly Half Of Immigration Judges Eligible For Retirement Next Year, Huffington Post, Dec. 22, 2013, available at http://www.huffingtonpost.com/2013/12/22/immigration- judges_n_4489446.html?utm_hp_ref=fb&src=sp&comm_ref&comm_crv.

xxii Stuart L. Lustig et al., Inside the Judges’ Chambers: Narrative Responses from the National Association of Immigration Judges Stress and Burnout Survey, 23 GEO. IMMIGR. L.J. 57 (2009).

xxiii COMM’N ON IMMIGRATION & REFUGEE POLICY, U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST: FINAL REPORT AND RECOMMENDATIONS OF THE SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY WITH SUPPLEMENTAL VIEWS BY THE COMMISSIONERS (1981).

xxiv Prestigious legal organizations such as the American Bar Association, Federal Bar Association, and American Judicature Society wholeheartedly endorse this reform. While not as certain as to the exact form of change desired, reorganization has also been endorsed by the American Immigration Lawyers Association, and increased independence by the National Association of Women Judges.

xxv Supra, note ii.”

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

PROGRAM NOTE:

I am a retired member of the National Association of Immigration Judges (“NAIJ”).

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.”

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

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

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

KATHERINE M. REILLY NAMED ACTING DEPUTY DIRECTOR OF EOIR — Also, My “Mini-History” Of EOIR Directors

Here’s the official DOJ press release:

FOR IMMEDIATE RELEASE

Monday, July 3, 2017

Executive Office for Immigration Review Announces New Acting Deputy Director

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katherine H. Reilly as the agency’s Acting Deputy Director. Ms. Reilly has served as Chief Counsel of the Employee and Labor Relations Unit within EOIR’s Office of General Counsel since December 2013.

“Katherine’s varied and impressive legal experience makes her well-suited for assuming the position of Acting Deputy Director at EOIR, especially during this important time when we are mobilizing all of our resources to combat a growing caseload,” said Acting Director James McHenry. “The skills she has acquired as a manager and through her work in employee and labor relations are critical for the agency, both to meet its current challenges and to establish effective policies and procedures for the future.”

In her new capacity as Acting Deputy Director, Ms. Reilly will supervise EOIR’s components and will be responsible for assisting in leading the agency in formulating and administering policies and strategies which enhance EOIR’s effectiveness in fulfilling its core mission of adjudicating cases fairly, expeditiously, and uniformly

Katherine H. Reilly joined EOIR in December 2013 as Chief Counsel of the Employee and Labor Relations Unit within the Office of General Counsel. Prior to her tenure with EOIR, she was the Director of Legal Services for the U.S. Postal Service Office of Inspector General, managing that agency’s employee relations team, civil litigation section, and contracting division. Ms. Reilly also served as a Special Assistant U.S. Attorney for criminal prosecutions in the Northern District of Texas. She began her career with the Federal Trade Commission as an antitrust attorney and also worked for a law firm, advising corporate clients on antitrust and commercial litigation. Ms. Reilly received her Bachelor of Arts and Juris Doctor degrees from the University of Texas at Austin and earned a Master of Laws degree from the University of Melbourne, Australia. Ms. Reilly is a member of the District of Columbia and Virginia bars.

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

Congratulations, good luck and best wishes to Acting Deputy Director Reilly.

And, here’s my “Mini-History of EOIR Directors:”

EOIR MINI-HISTORY: DIRECTORS AND DEPUTY-DIRECTORS

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired) & Adjunct Professor of Law, Georgetown Law

When EOIR was created within the DOJ in 1983, it merged the previously “stand-alone” Board of Immigration Appeals (“BIA”) with the Immigration Judges, who were previously part of the “Legacy” Immigration and Naturalization Service “INS”). David Milhollan, who was then the Chairman of the BIA also (somewhat reluctantly) became EOIR’s first Director, while retaining his position as Chair, thereby effectively merging the positions of Director and Chair.

Upon Milhollan’s retirement, in 1995 the positions were separated to increase the decisional independence of the BIA. For awhile, Jack Perkins, then Chief Administrative Hearing Officer, served as Acting Director. Attorney General Janet Reno named long-time DOJ Senior Executive Anthony C “Tony” Moscato, who had most recently served as the Director of the Executive Office for U.S. Attorneys, the second Director. I was appointed to the now separate position of BIA Chair. Moscato and I had significant roles in the 1983 creation of EOIR.

Moscato, noting the growth of EOIR’s functions, recommended the creation of the position of EOIR Deputy Director. Attorney General Janet Reno appointed Kevin D. Rooney as the first Deputy Director. Rooney had served as the Assistant Attorney General for Administration during several Administrations and was in private practice at the time of his appointment.

Eventually, Moscato sought and received appointment as a BIA Member. (Thereby going from my “immediate supervisor” to my “direct subordinate,” although these terms make little sense in the EOIR context because neither the Director nor the Chairman has authority to direct the decision-making of Board Members). Rooney succeeded Moscato as the third Director. Then EOIR General Counsel Peg Philbin became the Deputy Director.

Philbin served as Acting Director while Rooney was the Acting Commissioner of the INS for a few months during the Bush Administration (uh, talk about conflicts and perceptions, but that really wasn’t a strong point for the Bush II Administration either), but she eventually left EOIR to become a Senior Executive at the State Department. Then Board Member Kevin Ohlson replaced her as Deputy Director. Upon Rooney’s retirement, Deputy Director Ohlson succeeded him as the fourth Director. Ohlson had also held a number of Senior Executive positions within the DOJ prior to his brief stint as a Board Member.

When Eric Holder became Attorney General, Ohlson left EOIR to become his Chief of Staff. After some time, during which Judge Thomas Snow served as Acting Director, Juan P. Osuna, then a Deputy Assistant Attorney General in the Civil Division, became the fifth Director. Osuna had also been BIA Chair, BIA Vice Chair, and a Board Member. Ana M. Kocur, then a BIA staff supervisor, was selected to be Osuna’s Deputy.

Upon the departure of Osuna and Kocur in May 2017, both the top executive positions in EOIR became vacant. Interestingly, while two former BIA Chairs, Milhollan and Osuna, became Directors, EOIR has never had a Director who had served as a U.S. Immigration Judge at the trial level of the system, although the Immigration Judge program is by far the largest “adjudicating component” of EOIR.

Also, no former Immigration Judge has ever held the Deputy Director position. However, as noted above, one current Immigration Judge, Judge Thomas Snow, held the position of Acting Director during the interim between Ohlson’s departure and Osuna’s appointment. Snow, a former top executive in the DOJ’s Criminal Division before his appointment to the bench, was well regarded and well liked by the sitting Immigration Judges. Reportedly, he was offered the position on a permanent basis, but turned it down to return to the Arlington Immigration Court bench where he remains (thus having “outlasted” Osuna).

The Director is an unusual position in that as a non-judicial official, he or she is specifically excluded from having any substantive role in EOIR’s sole function: quasi-judicial adjudication. In a future, better-functioning, independent U.S. Immigration Court system, the Chief Appellate Judge (now BIA Chair) would resume the formal role as administrative head of the judicial system, along the lines of the relationship between the Chief Justice and the rest of the Article III Judiciary. The “Director” position would become the “Executive Director of the Administrative Office” subordinate to the Chief Appellate Judge.

With the elimination of the inherently political role of the DOJ in the U.S. Immigration Court system, there no longer would be a need to for the largely fictional perception that the “Director” serves as a “buffer” between the “adjudicating components” and the political and litigation officials at the DOJ. The current problems of the U.S. Immigration Court well illustrate the insurmountable difficulties of attempting to run one of the nation’s largest and most important court systems as an “agency” of a political department. Even if the DOJ had the will to allow the Immigration Courts to function independently, it lacks the competence and expertise in court administration to successfully support such a system.

The only real question is when will Congress finally face reality and create a truly independent and properly functioning U.S. Immigration court system?

PWS

07-06-17

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