"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
U.S. IMMIGRATION JUDGE LEE O’CONNOR EXPOSES MASSIVE DHS ILLEGALITY & FRAUD IN IMPLEMENTATION OF SO-CALLED MIGRANT PROTECTION PROTOCOLS (“LET ‘EM DIE IN MEXICO”) – “Indeed, the vast majority of respondents subjected to the MPP program involve cases where DHS has compelled -without authorization of law – aliens who were present within the United States and were not arriving aliens to return to Mexico to await their removal proceeding. It appears that over 90 percent of the MPP cases involve aliens were not properly subject to INA § 235(b)(2)(C). The court finds that termination is the appropriate action.”
Here’s key language from Judge O’Connor’s decision:
Respondents appeared for a hearing on September 9, 2019, with counsel and were granted a continuance for attorney preparation. The court reset the case to September 17, 2019. Respondents moved to terminate removal proceedings on the ground that they are not arriving aliens and were therefore not properly subjected to the MPP program. The court concludes thatDHS has not proven its fundamental allegation that respondents are arriving aliens and that DHS has not acted properly in subjecting aliens who were apprehended within the United States to the MPP program. Indeed, the vast majority of respondents subjected to the MPP program involve cases where DHS has compelled -without authorization of law – aliens who were present within the United States and were not arriving aliens to return to Mexico to await their removal proceeding. It appears that over 90 percent of the MPP cases involve aliens were not properly subject to INA § 235(b)(2)(C). The court finds that termination is the appropriate action.
So this is the “legacy” of “Powerful Woman” Kirstjen Nielsen and her successor “Big Mac With Lies:” Massive violations of legal and human rights of asylum seekers!
And, don’t forget the complicit Article III Judges of the 9th Circuitin Innovation Law Lab v. McAleenanwhose mindless “green-lighting” of this abusive and clearly illegal program is responsible for daily mockeries of the very U.S. laws they were sworn to uphold as well as continuing human misery.
It also shows:
The great potential of an independent Article I U.S. Immigration Court to stop DHS abuses in their tracks, at an early point in time (this would also save time and public money now being squandered on various illegal, ill-advised, and always inhumane “enforcement schemes and gimmicks”);
The potential of an independent Immigration Courtwith a true merit selection system for judges;
The value of effective representation of asylum seekers (which is either impeded or actively blocked by DHS and EOIR these days);
The corruption of leadership at DHS and DOJ and the lawyers representing them in court in defending the indefensible;
The dangers of abuses in a system run by a prejudiced Executive with no meaningful oversight and outside the public eye;
That while some Article III Judges have gone “belly up” in the face of massive illegality and abuses of our system, others like Judge O’Connor, even without the benefit of life tenure, have courageously continued to stand tall for Due Processand the legal rights of migrants to fair treatment under the law.
The current immigration system and those administering it in an unlawful and unconstitutional manner is a national disgrace! Something to remember when Kelly, Nielsen, “Big Mac With Lies,” and other senior officials of DHS and DOJ try to “reinvent” themselves in the private sector and disguise or disavow their truly disgusting record of subservience to Trump and the massive human rights violations for which they are morally responsible.
Due Process Forever; “Malicious Incompetence” Never!
On August 16, 2019, the Executive Office for Immigration Review issued a memo limiting the types of cases that an immigration judge may place on a status docket while a noncitizen is waiting for some event to occur that will impact the removal proceedings. The policy may make it more difficult for some respondents to seek immigration relief while in removal proceedings, especially relief before U.S. Citizenship and Immigration Services. This practice advisory provides background on status dockets, describes the new policy, and provides tips for practitioners with clients whose cases are currently on a status docket or who would otherwise have pursued status docket placement but may now be found ineligible for status docket placement.
action to avoid increasing the Board’s backlog—it is critically important to make certain that all appeals are processed in a timely manner.
The Board Chairman is required to establish a case management system to manage the Board’s caseload. 8 C.F.R. 1003.1(e). The Chairman, under the supervision of the Director, is responsible for the success of the case management system. Id. The Director is further authorized, inter alia, “to ensure the efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases; to direct that the adjudication of certain cases be deferred; to regulate the assignment of adjudicators to cases; and otherwise to manage the docket of matters to be decided by the Board.” 8 C.F.R. § 1003.0(b)(1)(ii).
Although the Board has implemented a case management system pursuant to regulation, that system does not fully provide for clear internal deadlines for all phases of the pre-adjudicatory process.1 Similarly, although the regulations evince a clear directive for prompt processing and disposition by the Board, they do not provide specific deadlines for case processing prior to completion of the appellate record. Moreover, as the Department of Justice Office of the Inspector General has previously noted, the regulatory deadlines for the adjudication of appeals exclude a significant amount of pre-adjudicatory processing time, skewing the Board’s reported achievements of its goals for appeals and impeding the effective management of the appeals process. U.S. Dep’t of Justice, Office of the Inspector General, Management of Immigration Cases and Appeals by the Executive Office for Immigration Review (Oct. 2012), https://oig.justice.gov/reports/2012/e1301.pdf.
To ensure the success of the Board’s case management system and to
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network
better manage the appeals process so that cases are adjudicated promptly, it is appropriate to clearly state EOIR’s expectations regarding the timely processing of appeals. 2 To that end, it is important to have clear deadlines for the movement of cases throughout the entire appellate process, and not just for the adjudication at the end of the process. Accordingly, EOIR now issues the following guidance regarding the case management system for appellate adjudications by the Board.3
Case Processing
All case appeals are referred to the screening panel for review, and appeals subject to summary dismissal “should be promptly dismissed.” 8 C.F.R. § 1003.1(e)(1). To ensure prompt initial
1 The pre-adjudicatory process includes, inter alia, screening of notices of appeal, requesting Records of Proceedings (ROPs), ordering transcripts, serving a briefing schedule, and assigning a case for merits review once the record is complete.
2 Although the importance of timely adjudication applies to all types of appeals at the Board, the specific provisions of this PM do not apply to the processing of appeals of decisions involving administrative fines and penalties, decisions on visa petitions, decisions on the exercise of discretion by the Department of Homeland Security pursuant to INA § 212(d)(3), and decisions in practitioner discipline proceedings.
3 For timeframes that are not currently being met, EOIR understands that Board leadership recently changed and that it may take time to adjust Board practices. Nevertheless, the agency is also cognizant that the Board recently hired six new permanent Board members and is also hiring additional support staff. Consequently, EOIR expects that the Board will address inefficiencies in its appellate processing as soon as possible.
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screening, all cases should be referred to the screening panel within 14 days of the filing of the notice of appeal to determine whether the appeal is subject to summary dismissal. Appeals subject to summary dismissal, particularly appeals subject to summary dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(G) for being untimely filed, should be dismissed within 30 days of referral to the screening panel.
In any case that has not been summarily dismissed, the Board “shall arrange for the prompt completion of the record of proceedings and transcript, and the issuance of a briefing schedule.” 8 C.F.R. § 1003.1(e)(3). Thus, to ensure prompt completion of the record for case appeals that have not been summarily dismissed, the Board should order the ROP4 if it was not previously ordered and, if appropriate, request a transcript within 14 days of referral to the screening panel.5 If a case does not require the preparation of a transcript and is not subject to summary dismissal, the Board should set and serve a briefing schedule within 14 days of referral to the screening panel. If a case requires neither the preparation of a transcript nor the service of a briefing schedule—e.g. a motion to reopen filed directly with the Board—the Board should forward the case for merits review within three days of the receipt of the ROP.
Every appeal that requires a transcript should be sent to a vendor for transcription within 14 days of referral to the screening panel. The only exceptions are situations in which there is no vendor with available capacity or if there is no available funding for further transcription.6
Upon receipt of the transcript, the Board should set and serve a briefing schedule within three days if the immigration judge’s decision was rendered in writing. If the immigration judge’s decision was rendered orally, the Board should provide the transcript of the oral decision to the immigration judge within three days of receipt of the transcript. The immigration judge “shall review the transcript and approve the decision within 14 days of receipt, or within seven days after the immigration judge returns to his or her duty station if the immigration judge was on leave or detailed to another location.” 8 C.F.R. § 1003.5(a). The Board should then set and serve a briefing schedule within three days of the immigration judge’s review and approval.
4 It is crucial that immigration courts promptly comply with requests for the ROP by the Board, and the Board may remand a case for recovery of the record if an immigration court does not forward the ROP promptly. The Board should decide whether such a remand is appropriate within 21 days of an immigration court’s failure to forward the ROP following the Board’s request. Such a remand will not be counted against an immigration judge for purposes of evaluating that judge’s performance. The Chairman shall promptly notify the Chief Immigration Judge and the Director of any immigration court that has not complied with a request for the ROP within 21 days of that request.
5 Unless the ROP contains cassette tapes requiring transcription, ordering the ROP and requesting transcription should occur concurrently within 14 days of referral to the screening panel. Transcripts are not normally prepared for the following types of appeals: bond determinations; denials of motions to reopen (including motions to reopen in absentia proceedings); denials of motions to reconsider; and interlocutory appeals. Board of Immigration Appeals Practice Manual, § 4.2(f)(ii).
6 The Chairman is directed to immediately notify the Director and the Assistant Director for the Office of Administration in any situation in which it appears that funding for transcription of all cases relative to vendor capacity is insufficient to meet the goals of this PM. Similarly, the Chairman is directed to notify the Director and the Assistant Director for the Office of Administration of any additional resource needs in order to meet the goals of this PM.
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“In the interest of fairness and the efficient use of administrative resources, extension requests [of briefing schedules] are not favored.” Board of Immigration Appeals Practice Manual, § 4.7(c)(i). Because extension requests are not favored, they should not be granted as a matter of course, and there is no automatic entitlement to an extension of the briefing schedule by either party. Extension requests filed the same day as a brief is due are particularly disfavored and should be granted only in the most compelling of circumstances.
The case should be forwarded for merits review within three days after the expiration of the briefing schedule or the filing of briefs by both parties, whichever occurs earlier. A single Board member may summarily dismiss an appeal after completion of the record. 8 C.F.R. § 1003.1(e)(3). An appeal subject to summary dismissal because a party indicated that it would file a brief and failed to do so, 8 C.F.R. § 1003.1(d)(2)(i)(E), should be dismissed within 21 days of expiration of the briefing schedule.
The single Board member should determine the appeal on the merits as provided in paragraph 8 C.F.R. § 1003.1(e)(4) or (e)(5), unless the Board member determines that the case is appropriate for review and decision by a three-member panel under the standards of 8 C.F.R. § 1003.1(e)(6). The single Board member should determine whether the case should be referred to a three-member panel within 14 days of referral of the case for merits review, and the Board should assign the case to a three-member panel within three days of the single Board member’s determination.7 If a case is assigned to a three-member panel, a decision must be made within 180 days of assignment. 8 C.F.R. § 1003.1(e)(8)(i). If a case is not assigned to a three-member panel, the single Board member shall adjudicate the appeal within 90 days of completion of the record on appeal. Id.
The Chairman may grant an extension of the 90 and 180-day deadlines of up to 60 days in exigent circumstances. 8 C.F.R. § 1003.1(e)(8)(ii).8 “In rare circumstances,” the Chairman may hold a case or cases and suspend the 90 and 180-day deadlines to await an impending decision by the Supreme Court, a U.S. Court of Appeals, or an en banc Board decision or to await impending Department regulatory amendments. 8 C.F.R. § 1003.1(e)(8)(iii).9 The Chairman shall provide a monthly report of all cases in which an extension was granted due to exigent circumstances and all cases being held pursuant to 8 C.F.R. § 1003.1(e)(8)(iii).
Any appeal not adjudicated within the regulatory time frames shall be handled in accordance with 8 C.F.R. § 1003.1(e)(8)(ii). The Chairman shall provide a monthly report of all cases which have exceeded these time frames.
Overall, absent an exception or unique circumstance provided for by regulation or this PM, no appeal assigned to a single Board member should remain pending for longer than 230 days after
7 A single Board member retains the ability to later decide that a case should be assigned to a three-member panel if circumstances arise that were unknown at the time of the initial determination that such assignment was not warranted.
8 Additionally, the 90 and 180-day deadlines do not apply to cases in which the Board holds an adjudication of the appeal while awaiting the results of identity, law enforcement, or security investigations or examinations. 8 C.F.R. §§ 1003.1(d)(6) and (e)(8)(i).
9 As a matter of policy, the Chairman may also defer adjudication of appeals under 8 C.F.R. § 1003.1(a)(2)(i)(C) to await an impending decision by the Attorney General.
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filing of the notice to appeal, and no appeal assigned to a three-member panel should remain pending for longer than 335 days after filing the notice of appeal. The Chairman shall track the progress of appellate adjudications and shall provide a monthly report of all cases which exceed those parameters.
Finally, EOIR does not have a policy restricting or prohibiting the use of summary dismissals of appeals, nor does it have a policy restricting or prohibiting the use of affirmances without opinion. Any appeals amenable to those procedures should be adjudicated consistent with the regulatory requirements for them, 8 C.F.R. §§ 1003.1(d)(2) and (e)(4), and this PM.
III. Interlocutory Appeals
The regulations do not expressly address interlocutory appeals. “The Board does not normally entertain interlocutory appeals and generally limits interlocutory appeals to instances involving either important jurisdictional questions regarding the administration of the immigration laws or recurring questions in the handling of cases by Immigration Judges.” Board of Immigration Appeals Practice Manual, § 4.14(c).
The Board does not normally issue briefing schedules for interlocutory appeals, nor do most interlocutory appeals require transcription. Board of Immigration Appeals Practice Manual, §§ 4.2(f)(ii), 4.14(e). Consequently, interlocutory appeals are not subject to the same processes as typical case appeals on the merits. Nevertheless, it is the policy of EOIR to adjudicate interlocutory appeals promptly and efficiently.
To that end, interlocutory appeals should be reviewed by the screening panel within 14 days of filing. The screening panel should then either decide the interlocutory appeal within 30 days of filing or forward it for merits review.
Assignment and Performance
Regulations authorize the Chairman to designate a screening panel and other merits panels as appropriate. It is the policy of EOIR that panel assignments shall occur no less frequently than the beginning of each fiscal year.
Finally, “[t]he Chairman shall notify the Director of EOIR and the Attorney General if a Board member consistently fails to meet the assigned deadlines for the disposition of appeals, or otherwise fails to adhere to the standards of the case management system. The Chairman shall also prepare a report assessing the timeliness of the disposition of cases by each Board member on an annual basis.” 8 C.F.R. § 1003.1(e)(8)(v). Notification pursuant to this regulation should occur no later than 30 days after the Chairman determines that a Board member has failed to meet these standards. The Chairman shall prepare the annual report required by this regulation at the conclusion of each fiscal year.
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V . Conclusion
In December 2017, Attorney General Sessions provided a list of principles to which EOIR is expected to adhere, including the principle that “[t]he timely and efficient conclusion of cases serves the national interest.” Memorandum to the Executive Office for Immigration Review, Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest (Dec. 6, 2017), https://www.justice.gov/eoir/file/1041196/download. That principle applies to cases at the Board no less than it applies to cases in immigration courts, and EOIR remains committed to ensuring that all immigration cases at both the immigration court and appellate levels are adjudicated efficiently and fairly consistent with due process.
Responsibility for the Board’s case management system and the duty to ensure the efficient disposition of pending cases fall on the Chairman, and Board members themselves are ultimately responsible for the adjudication of individual cases. Accordingly, nothing in this PM is intended to require—or should be construed as requiring—a change in the conditions of employment of any bargaining unit employees at the Board.
The Board maintains a goal developed under the Government Performance and Results Act (GPRA) of completing 90% of detained appeals within 150 days of filing. The instant PM does not alter that goal, and in all cases, it remains EOIR policy that the Board “shall issue a decision on the merits as soon as practicable, with a priority for cases or custody appeals involving detained aliens.” 8 C.F.R. § 1003.1(e)(8).
This PM supersedes any prior guidance issued by EOIR regarding the timely processing of cases on appeal.
This PM is not intended to, does not, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Further, nothing in this PM should be construed as mandating a particular outcome in any specific case.
Please contact your supervisor if you have any questions. _____________
WASHINGTON, DC – Today, the American Immigration Lawyers Association (AILA) reviewed and analyzed the recent policy memo impacting the workings of the Board of Immigration Appeals (BIA) which serves as the appellate arm of the immigration courts within the Department of Justice (DOJ).
Jeremy McKinney, Second Vice President of AILA noted, “This memo offers significant areas of concern. An earlier rule issued in August describing the reorganization of the Executive Office for Immigration Review (EOIR) at DOJ delegates authority from the Attorney General to the EOIR director to adjudicate cases ‘that cannot be completed in a timely fashion.’ As a political appointee and not an immigration judge, the director should not have that power. This memo goes even further and pressures BIA members to speed up adjudications without care for due process. Frankly, this latest memo only underscores the need for an independent immigration court to get these proceedings out from under the thumb of the nation’s prosecutor.”
Benjamin Johnson, AILA Executive Director stated, “The purported reasoning behind this memo is that BIA adjudication rates have stalled. What did they expect the appellate situation would look like when immigration enforcement was ramped up and targeted people with longstanding ties to their communities and potential equities in immigration cases? It was inevitable that the appeals caseload would increase. This memo actually urges BIA adjudicators to dismiss appeals, before a transcript of the original hearing is even reviewed. The result of this policy change will be even more federal court litigation as people seek to get their fair day in court. Everything about this system is incongruent with an independent decision-making body.”
It just keeps getting worse and worse, as Congress and the Article IIIs shirk their duties to intervene and enforce Due Process in our broken and “maliciously incompetently” managed Immigration “Courts.”
As one “Roundtable” member noted, in an amazing public ripoff, the Administration is raising the appeal fees by nearly 1000% so abused immigrants subjected to the EOIR “Kangaroo Court” will now “pay more for less justice!”
But, all is not lost! NDPA Lt. General and Roundtable stalwart Judge Lory D. Rosenberg has put out a timely format (below) for filling out a Notice of Appeal (“NOA”) that will be “McHenryproof” and will also highlight to the Article III Courts of Appeals the stunning denial of Due Process and encouragement of sloppy work, “worst practices,” and corner cutting at EOIR. Let’s see whether being flooded with inferior, biased work product by the BIAwill finally spur the Article IIIs to take some long overdue corrective action (as they did during the due process disaster at EOIR that followed the “Ashcroft Purge” at the BIA).
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)
Dear NAIJ Members,
On Friday, September 27, 2019, the National Press Club (NPC) convened a Headliners “Newsmaker” Press Conference entitled “Immigration Courts in Crisis.” Moderated by NPC President and award-winning AP Washington Investigations Editor journalist Alison Fitzgerald Kodjak, the panel presentation explored sweeping and controversial changes in the nation’s Immigration Courts. The presentations were led by NAIJ President Ashley Tabaddor, followed by the ABA President Judy Perry Martinez, and the American Immigration Lawyers Association (AILA) Second Vice President Jeremy McKinney. The trio expressed broad consensus around key concerns undermining the independent decision making authority of Immigration Judges and compromising the integrity of the court.
Judge Tabaddor honed in on the specifics of how the decisional independence of judges and the independence of the court is under attack by the Department of Justice through their actions ranging from the imposition of unrealistic and unreasonable quotas and deadlines to the recent announced DOJ regulation, effective immediately, which collapsed into a single individual the role of the chief policy director with the role of the chief appellate judge. The EOIR Director was previously prohibited from engaging in any judicial role over cases because of the political nature of the position, but has now been given authority to interfere in individual cases, direct the result of cases, and to sit as an appellate judge over immigration judge decisions. Judge Tabaddor also reported on Friday’s filing of two unfair labor practice petitions against the Department of Justice with the Federal Labor Relations Authority. The ULPs stem from the Agency’s efforts to decertify the Association under the guise of reclassifying the Immigration Judges as managers and policy-makers and its subsequent personal attacks on the Association leadership from the podium of the Department of Justice.
ABA President Perry Martinez (Judy) was a powerful voice on a number of important issues ranging from support for fair proceedings and the rule of law to the importance of effective representation for individuals in removal proceedings.
Finally, AILA Vice President McKinney (Jeremy) reported on the impact of the “tent” courts that have been shrouded in secrecy with wholly inadequate operational logistics related to attorney access. He said, “DHS not only has complete control over access to these facilities, but DHS also has complete control over attorney/client representation when migrants are on the U.S. side of the border.” He explained that the program creates insurmountable hurdles to attorney representation, and as a result, as of the end of June, only 1.2% of asylum seekers had been able to obtain counsel.
The three speakers were aligned in the NAIJ’s call for a lasting solution to these and other problems plaguing the Immigration Court system — legislative action to restructure the courts in a manner offering independence from the Department of Justice, and the creation of an independent Article I Immigration Court.
Several national and local news outlets, including the Wall Street Journal, the New York Times, CNN, and others, were present and have reported on the event. To watch the press conference, see:
If you have any questions or comments, or if you would like to have copies of the ULPs or Judge Tabaddor’s remarks, please feel free to reach out to Judge Tabaddor directly atashleytabaddor@gmail.com.
Every day, the Trump Administration is further reducing the Immigration Courts to “Kangaroo Courts” while Congress and the Article IIIs shirk their respective duties to protect Due Process!
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
The Immigration Court’s active backlog of cases just passed the million case mark. The latest case-by-case court records through the end of August 2019 show the court’s active case backlog was 1,007,155. If the additional 322,535 cases which the court says are pending but have not been placed on the active caseload rolls are added, then the backlog now tops 1.3 million.
During the first eleven months of FY 2019, court records reveal a total of 384,977 new cases reached the court. If the pace of filings continues through the final month of this fiscal year, FY 2019 will also mark a new filing record.
While much in the news, new cases where individuals have been required to “Remain in Mexico” during their court processing currently make up just under 10 percent (9.9%) of these new filings. These MPP cases comprise an even smaller share – only 3.3 percent — of the court’s active backlog.
As of the end of August, a total of 38,291 MPP cases had reached the court, of which 33,564 were still pending.
For the full report – including links to online query tools where readers can drill into countless additional details covering all 4.5 million court filings since FY 2001, the recent MPP component of these filings, and the court’s over 1 million active case backlog – go to:
Additional free web query tools which track Immigration Court proceedings have also been updated through August 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:
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:
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The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to http://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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The futility of throwing more money into this badly broken system has become obvious. Without an independent, Article I U.S. Immigration Court, run by judges who direct the activities of the administrators rather than being run by politicos, there simply will not be any semblance of competent professional management of this system, certainly not under this Administration.
The Administration stubbornly refuses to take the necessary step of responsibly exercising “prosecutorial discretion” to reduce the backlog to a manageable size without “gimmicks.”
It’s equally obvious that Congress needs to enact some type of realistic legalization program that will remove cases of individuals with a period of productive residency and their families from the “active” docket and forestall the further mess that would be created by the absolute insanity of the “Gonzo plan” of restoring properly “administratively closed” cases to the active dockets.
The system is calling out for help. Unfortunately, those cries are being ignored by both Congress and the Article III Courts who are the only ones currently capable of fixing the system.
WASHINGTON — The nation’s immigration judges lost a key leader this week, the latest in a string of departures at the top of the system amid a backlog of cases and a migrant crisis at the southwestern border.
The official, David Neal, said that he would retire from his position as head of the judges’ appeals board effective Saturday. “With a heavy heart, I have decided to retire from government service,” Mr. Neal wrote in a letter sent to the board Thursday and obtained by The New York Times.
He gave no reason for his abrupt departure and asked his colleagues to “keep true to your commitment to fairness and justice.”
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No replacement has been announced, and a Justice Department spokesman declined to comment, citing a policy to not do so on personnel matters.
Mr. Neal’s decision follows a shake-up at the Executive Office for Immigration Review, the court system that adjudicates the country’s immigration cases, including asylum cases. It is part of the Justice Department, not the judicial branch.
Three of its senior career officials — MaryBeth T. Keller, the chief immigration judge; Jean King, the general counsel; and Katherine H. Reilly, the deputy director — all left their roles this summer. Ms. King stayed at the immigration office in a different post.
Mr. Neal’s departure also comes amid the backdrop of the Trump administration’s efforts to curb both illegal and legal immigration, which have taxed the immigration courts, the criminal courts and border patrols along the nation’s southwestern border and prompted long-running discontent among immigration judges that they are being used to expedite deportations.
As Mr. Trump has sought to suppress immigration and cut down on the number of people who claim asylum in the United States, he has notched two wins at the Supreme Court.
On Wednesday, justices said in an unsigned order that amid an ongoing legal battle, the administration could bar most Central American migrants from seeking asylum in the United States if they passed through another country and were not denied asylum there. That decision will allow the administration to effectively bar migration across the southwestern border by Hondurans, Salvadorans, Guatemalans and others who must travel through other countries to get to the United States.
And in July, the Supreme Court said that the Trump administration could use $2.5 billion in Pentagon money to build a barrier along the border with Mexico, which would help Mr. Trump fulfill a campaign promise to build a wall on the border to stop immigration.
Amid these hard-line policies, a vocal group of immigration judges — part of the larger total of about 400 judges and appeals judges — have been at loggerheads with the Trump administration for more than a year.
Leaders of the judges’ union have pushed back against the imposition of quotas that they have said would expedite deportations at the expense of due process. Under former Attorney General Jeff Sessions, they accused the Justice Department of trying to turn the immigration courts into a deportation machine.
Mr. Sessions treated the judges “like immigration officers, not judges,” said Paul Schmidt, a former judge in the immigration courts.
Some judges have also bristled at a recent Justice Department decision that handed over the power to rule on appeals cases to the director of the office, a political appointee. The judges saw the move as an attempt to undermine their authority.
That decision also directly impacted Mr. Neal, demoting him “in practice,” by transferring his authority to decide appeals cases to the director of the office, said Ashley Tabbador, the president of the union that represents immigration judges.
“This regulation upends the entire system created to decide these cases,” Ms. Tabbador said. Should the new system run into problems, “the chairman would have been held accountable. I would have quit, too, if I were in David’s position.”
Though they are part of the Justice Department, many immigration judges view themselves as independent arbiters of the law and believe they must act within the confines of existing immigration statutes.
They have long deliberated over whether they should be part of the Justice Department — a debate that has intensified under President Trump.
Last month, tensions increased when a daily briefing that is distributed to federal immigration judges contained a link to a blog post that included an anti-Semitic reference and came from a website that regularly publishes white nationalists.
After the episode, the immigration review office said that it would stop sending the daily briefing and would not renew its contract with the service that provided it.
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The farce taking place as the Trump DOJ politicos “remake” the Immigration Courts into a tool of DHS enforcement and repression of Due Process and fundamental fairness will go down as one of the darkest and most disturbing episodes in American legal history.
The inability or unwillingness of the other two branches of Government, Congress and the Article III Judiciary, to intervene and fulfill their Constitutional duties of protecting Due Process, fundamental fairness, equal protection, First Amendment rights of union members, and separation of powers show a catastrophic failure of American institutions that are charged with protecting and advancing all of our rights.
In the end, nobody including Trump’s tone-deaf supporters and enablers, will escape the adverse consequences of giving in to White Nationalist authoritarianism.
The NAIJ has been particularly effective at arguing how such actions support the need for an independent Article I immigration court, outside of the control of the executive branch. The idea has been endorsed by numerous law groups, including the American Bar Association and the Federal Bar Association, and is now a common talking point among members of Congress. The move to decertify the NAIJ is clearly an effort to end such efforts.
A statement issued by Reps. Jerrold Nadler, D-N.Y., and Zoe Lofgren, D-Calif., chairs of the House Judiciary Committee and its Subcommittee on Immigration and Citizenship, recognized the decertification petition as “blatant retaliation for this opposition and an obvious attempt to shield immigration court operations from public view.”
The congressional leaders continued that “the Administration’s attempt to silence immigration judges by engaging in frivolous union busting tactics underscores why we need an immigration court system that is separate and independent from the Executive Branch. In the coming months, the Judiciary Committee will hold hearings to explore the current state of the U.S. immigration court system and develop a foundation for legislation to create an independent immigration court.”
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Go on over to Jeff’s blog a the link to read the complete article, which originally appeared on Law360.
Under Trump, the Department of “Justice” clearly has become part of the problem rather than part of the solution. Under a future honest Administration, the DOJ is in need of a complete housecleaning and reorganization. We need some legislative safeguards to insure that the DOJ promotes, rather than undermines, the “rule of law.”
Of course, the problem starts — but doesn’t end — with corrupt leadership from folks like Jeff “Gonzo Apocalypto” Sessions and Bill “Trump’s Toady” Barr. But, it also takes some “go along to get along” amoral so-called “career bureaucrats” at DOJ to carry out these invidious policies.
Obviously, the need for an independent Article I U.S. Immigration court becomes more clear and pressing every day that the current farce operating within the DOJ is allowed to continue!
A string of directives from President Donald Trump’s Justice Department that have reduced the authority of immigration judges and limited their control of their courtrooms has given new urgency to calls for a complete overhaul of the immigration courts.
Those courts now exist within the Justice Department and answer to the attorney general. Proposals for Congress to exercise its constitutional powers and create separate, independent immigration courts have long been dismissed as costly pipe dreams. But under Trump, judges and others in the court system say they are facing an unprecedented effort to restrain due process and politicize the courts with the president’s hard line on immigrants and demands for deportations.
“It’s time for the Department of Justice and the immigration courts to get a divorce,” said Jeremy McKinney, an attorney who is a vice-president of the American Immigration Lawyers Association.
In a letter in July, the immigration lawyers joined the American Bar Association, the Federal Bar Association and the immigration judges’ union to call on Congress to “establish an independent court system that can guarantee a fair day in court.” The idea is percolating in the Democratic presidential contests, with three candidates—Julián Castro, Beto O’Rourke and Sen. Elizabeth Warren—presenting specific plans. Another candidate, Sen. Kirsten Gillibrand, drafted a bill last year to make the change.
The chairman of the House Judiciary Committee, Rep. Jerrold Nadler, a Democrat from New York, said he will hold hearings on the proposals this fall. There is little chance such a plan would have traction in the Republican-controlled Senate.
Under the proposals, the immigration courts would become a stand-alone agency that would not be run or controlled by outside officials, with the goal of insulating judges from political pressure by any administration.
Department of Justice officials say they are working on a fast track to modernize courts that have been relegated to institutional backwaters. They oppose any plan to separate the courts, saying it would create a bureaucratic and legal morass that would do little to resolve massive backlogs and other chronic problems.
The costs and logistical hurdles “would be monumental and would likely delay pending cases even further,” said Kathryn Mattingly, a Justice Department spokeswoman. The proposals present “significant shortcomings, without any countervailing positive equities,” she said.
But several judges, including three who spoke anonymously because they are not authorized to make public statements, said the Trump administration has pushed the courts too far. The latest salvo emerged from a thicket of legal language in a rule issued Monday by the Justice Department. In a major change, it gives the official in charge of running the courts, who is not a sitting judge, the last word in appeals of some immigration cases. It also gave that official—the director of the Executive Office for Immigration Review, the formal name of the immigration court agency—expanded power to set broadly-defined “policy” for the courts.
The judges’ union reacted with alarm. Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said the rule “removes any semblance of an independent, non-political court system.”
The judges’ association was already reeling after receiving what amounted to a declaration of war on Aug. 9, when the Justice Department filed a decertification petition that would bar judges, who are department employees, from being represented by the union.
Former Attorney General Jeff Sessions used his authority extensively, eliminating judges’ ability to close deportation cases and narrowing the path to asylum for migrant families from Central America fleeing domestic abuse, gang violence and cutthroat cartels. In a recent decision, Attorney General William Barr went further to deny families asylum, overruling long-standing opinions by judges.
Late last year the current director of the courts, James McHenry, under pressure from the White House, ordered judges in 10 busy courts to give priority to cases of families seeking asylum, pushing those cases to the front of their dockets while postponing others. Many judges are frustrated with the “rocket dockets,” finding that they deny many immigrants time to prepare for hearings while unreasonably delaying other cases, further stretching out backlogs.
In recent months McHenry, citing budget constraints, began to limit the availability of language interpreters for initial hearings, where judges see immigrants who speak many different languages. Translators have been replaced with videos providing boilerplate explanations of an immigrant’s rights. Judges said the videos are befuddling to immigrants in their first encounter with the court, and take away time for judges to address each person individually.
What really antagonized many judges was the imposition of quotas for finishing cases, tied to their performance reviews. Since last October, judges must complete at least 700 cases a year, with less than 15 percent of decisions being sent back to them by appeals courts. Time limits were set for many other decisions.
To remind judges of their standing, Justice officials designed a speedometer that sits on judges’ computer screens, with green marking numbers of decisions that meet the metrics and stoplight red indicating where they are lagging.
“So you sit down and you see that dashboard staring at you, updated every day, and you have 50 motions on your desk to decide whether to continue a case,” said Denise Noonan Slavin, who retired as an immigration judge in March after 24 years on the bench. The metrics, she said, inevitably discourage judges from granting more time for cases, even if an immigrant presents a valid argument.
“If judges get into that red, they can lose their job,” Slavin said.
Last October the Justice Department initiated performance metrics for immigration judges (referred to as IJs), setting benchmarks that they must complete at least 700 cases a year and finish other decisions within certain time limits. Speedometers sit on judges’ computer screens, with green showing they are on track with their cases and red signaling they are far behind. U.S. DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Most proposals to reconfigure the courts would have Congress act under Article One of the Constitution. The courts would become a separate agency governed by judges, but would remain within the executive branch. There is no appetite for the vast costs and litigation it would take to move the courts to the federal judiciary.
Reformers cite the example of the tax court, which Congress set up in 1969 to have independent judges deciding federal tax disputes, taking them out of the grip of the Internal Revenue Service. Similarly, Judy Perry Martinez, president of the American Bar Association, said in an interview that the immigration courts cannot be fully impartial while they are subordinate to the attorney general, the nation’s top prosecutor.
The Federal Bar Association, which has written a model bill for the transformation, insists it would not be as daunting as it sounds. The bill is drafted “with the idea of simply lifting the courts,” and their budget, out of the Justice Department, said Elizabeth Stevens, chair of the organization’s immigration law section. Under this plan, the courts would remain in existing facilities and current judges would continue to serve for four years before being re-appointed by Senate-confirmed appeals judges to serve in the new system.
Proponents have a harder time explaining how the transition would avoid even more of a bureaucratic sinkhole than existing courts, where the backlog stands at more than 930,000 cases. But Slavin said independent judges would take back their ability to manage cases efficiently, which she said micromanagement under Trump had eroded.
Advocates have few illusions that Trump and a Congress locked in immigration feuds will address their complaints soon. But they want to get the issue on the election year agenda, contending that Democrats and some judicial conservatives among Republicans could vote for an eventual bill.
The Justice Department can be expected to resist. But McKinney, from the lawyers association, said that with the sense of siege in the courts, “Suddenly something that was a dream or a theory is becoming something that could become a reality.”
Julia Preston covered immigration for The New York Times for 10 years, until 2016. She was a member of The Times staff that won the 1998 Pulitzer Prize for reporting on international affairs, for its series that profiled the corrosive effects of drug corruption in Mexico. She is a 1997 recipient of the Maria Moors Cabot Prize for distinguished coverage of Latin America and a 1994 winner of the Robert F. Kennedy Award for Humanitarian Journalism.
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Lost in the shuffle: With all the money poured down the drain on mindless schemes to DENY DUE PROCESS rather than enhance it, after 19 years of “study and development,” EOIR IS STILL WITHOUT A FUNCTIONAL E-FILING SYSTEM!
Plenty of money for absurd “Judicial Dashboards;” none for even minimally competent court administration. And, how about the reduction in essential interpreter services mentioned in Julia’s article? Talk about “malicious incompetence” in action!
Unfortunately, however, the Fourth Circuit’s ruling in Zuniga Romero v. Barr currently only applies in the Baltimore, Arlington, and Charlotte Immigration Courts. This leaves the rest of the country in the type of mass confusion and uncertainty that the Trump Administration strives to create.
It’s past time for the Article III Courts to do their duty, put this patently unconstitutional mess out of its misery, and appoint a “Special Master” to restore at least some semblance of Due Process, fundamental fairness, impartiality, quasi-judicial independence, and competent court management to this system pending Congressional reforms to comply with the Constitution.
Most important: judicial intervention might save some human lives that will otherwise be lost as a result of the “malicious incompetence” with which the Trump Administration regularly has abused the “captive” U.S. Immigration Courts.
“GONZO APOCALYPTO” SLAMMED: UNANIMOUS PANEL OF 4TH CIR. REJECTS MATTER OF CASTO-TUM — Exposes Irrationality Of Biased, Unqualified Restrictionist Former AG — “ADR” Outed— “Although one of its purported concerns is efficient and timely administration of immigration proceedings, it would in fact serve to lengthen and delay many of these proceedings by: (1) depriving IJs and the BIA of flexible docketing measures sometimes required for adjudication of an immigration proceeding, as illustrated by Avetisyan, and (2) leading to the reopening of over 330,000 cases upon the motion of either party, straining the burden on immigration courts that Castro-Tum purports to alleviate.”
ZUNIGA ROMERO V. BARR, NO. 18-1850, 4th Cir., 08-29-19, published
PANEL: AGEE, FLOYD, and THACKER, Circuit Judges.
OPINION BY: Judge Agee
KEY QUOTE:
In the absence of Auer deference, the weight given to a BIA decision “hinges on the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade”—that is, whether the interpretation should be afforded Skidmore deference. Zavaleta–Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) (internal quotation marks omitted). And here, a court reviewing Castro-Tum for Skidmore deference would not be persuaded to adopt the agency’s own interpretation of its regulation for substantially the same reasons it is not entitled to Auer deference: because it represents a stark departure, without notice, from long-used practice and thereby cannot be deemed consistent with earlier and later pronouncements. As a result, it lacks the “power to persuade.” Id.; see also Kisor, 139 S. Ct. at 2427 (Gorsuch, J., concurring) (contending that an agency interpretation of a regulation should as an initial matter be “entitled only to a weight proportional to ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade’” (quoting Skidmore, 323 U.S. at 140)). Put another way, even under the view set forth by Justice Gorsuch in Kisor, the Attorney General’s interpretation would amount to a failure of proof because the evidence—that is, Castro- Tum—comes too late in the game.
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In sum, the result is that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer upon IJs and the BIA the general authority to administratively close cases such that the BIA’s decision should be vacated and remanded.
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A huge victory for the “New Due Process Army.” The “Roundtable of Former Immigration Judges” actually filed an amicus brief before Sessions in Castro-Tum raising many of the points found determinative by the Fourth Circuit. Our brief was, of course, ignored by “Gonzo,” who undoubtedly had already drafted his decision along the lines dictated to him by some restrictionist interest group.
Finally, an Article III Court “gets” how the DOJ under the Trump Administration is promoting “Aimless Docket Reshuffling” (“ADR”) in an attempt to build the backlog, destroy the system, blame the victims (respondents and their, largely pro bono, attorneys), and dishonestly call upon GOP Legislators to mount a pernicious attack on constitutional Due Process by statute!
The idea that adding 330,000 cases to the already backlogged Immigration Courts was legally required or a good policy idea clearly is a piece of White Nationalist restrictionist propaganda promoted by corrupt public officials like Miller, Sessions, and Barr.
With the Democrats in control of the House, there is no way that Congress will eliminate “Administrative Closing” by statute. And, while the DOJ under the sycophantic Barr might try to change the regulation, this decision makes it very clear that there is no rational basis for doing so. Therefore, any future regulation change is likely to be tied up in litigation in the Article III Courts for years, adding to the confusion and ADR, as well as threatening to immobilize the Article III Courts.
Unless the Article III Courts want their dockets to be totally swamped with immigration appeals, the answer is to end this unconstitutional system administered by an Attorney General clearly unfit to act in a quasi-judicial capacity and place the Immigration Courts under a court-appointed independent “Special Master” to insure fairness, impartiality, and other aspects of Due Process until Congress fixes the glaring Constitutional defect by creating an independent U.S. Immigration Court outside of the DOJ.
BREAKING: STATEMENT BY IMMIGRATION JUDGES UNION ON MAJOR CHANGE ANNOUNCED TO IMMIGRATION COURTS
Statement by the Hon. Ashley Tabaddor, Pres. of the National Association of Immigration Law Judges
In an unprecedented attempt at agency overreach to dismantle the Immigration Court, the Department of Justice, Executive Office for Immigration Review (EOIR) today published a new interim rule, effective next Monday, which takes steps to dismantle the Immigration Court system. DOJ’s action ends any transparency and assurance of independent decision making over individual cases.
By collapsing the policymaking role with the adjudication role into a single individual, the Director of EOIR, an unconfirmed political appointee, the Immigration Court system has effectively been dismantled,” said Ashley Tabaddor, President of the National Association of Immigration Judges.
The new rule is a wolf in sheep’s clothing. While couched in bureaucratic language, the impact of this regulation is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators. The creation of a mini-Attorney General in the EOIR’s Director, who
is a political appointee, not confirmed by the Senate and currently not empowered to
adjudicate cases, will in effect abolish the separation of functions where the Attorney General’s duties as a law enforcement agent are distinct and separate from his adjudicatory duties. The unprecedented creation of an Office of Policy within EOIR under the Director’s authority, designed to formulate, coordinate, and implement the executive branch’s immigration law enforcement policies
combined with the Director’s new direct adjudicatory role over individual cases, removes any semblance of an independent, non-political court system which ensures due process rather than political expediency.
Furthermore, this bold-faced power-grab undermines oversight by the public through the established notice and comment procedure.
The National Association of Immigration Judges received notice of this action only today when the press was advised. We are currently studying the regulation carefully to provide a more detailed analysis in the days ahead.
Will Congress and the Article IIIs stand up to this grotesque abuse and prevent the DOJ from destroying democracy. Or, will impotent legislators and “go along to get along” Article III Judges continue to look the other way as a system driven by racist authoritarianism eats us up!
Hon. Thomas Lister Retired Jackson County (WI) Circuit JudgeMe
A CONCEPTUAL PROPOSAL FOR AN AUXILIARY IMMIGRATION JUDICIARY
By
Paul Wickham Schmidt, Retired U.S. Immigraton Judge and Former Chair, U.S. Board Of Immigration Appeals
&
Thomas Lister, Retired Wisconsin Circuit Judge
Drawing on our judicial expertise gained over decades of working in both Federal and State judicial system, we respectfully set forth a concept for those working in the legislative, political, legal, and judicial systems to use and further develop to promote better, fairer, and more efficient judicial decision-making and to make better use of existing and future judicial resources both in and outside the U.S. Immigration Court system.
To save time, and since neither of us purports to be a legislative draftsperson, instead of submitting a “draft bill,” or the “outline” of such a bill, we advance an idea and the conceptual and practical justifications for it for your consideration and future use in drafting actual legislation.
No knowledgeable individual thinks the current dysfunctional U.S. Immigration Court system can continue without imploding. Just feeding more new, permanent Immigration Judges into an unfair and broken system actually is making things worse as well as outrageously wasting our taxpayer money at a time when deficits are skyrocketing.
All too many newly hired Immigration Judges appear to be neither the best qualified to be judges nor, even if qualified on paper, properly trained in how to deliver “full due process with efficiency” under the immigration laws and in strict compliance with the Due Process Clause of our Constitution.
On the other hand, many retired judges from other Federal and State systems have proven expertise and track records that would allow a competent judicial administrator (there are, to our knowledge, NONE of these currently in DOJ or EOIR) to determine if they are suitable for emergency service and how they could best be trained to effectively and efficiently use their skills as “Auxiliary Immigration Judges” to augment the current and future Immigration Judiciary.
Moreover, since most retired Federal and State judges already have adequate pensions or other means of support, asking them to volunteer to serve on the basis of limited compensation, or even just reimbursement for out of pocket expenses, would not be unreasonable.
We are offering this idea as a way in which those of us with lifetime legal and judicial expertise can use it to improve the delivery of justice in America; it is not intended as a means of enriching or offering alternative full-time employment to current retired judges, from any system.
To name just a few areas of “low hanging fruit,” we believe that:
• Most bonds;
• Initial “Master Calendars” (arraignments);
• Master Calendar scheduling for Individual Hearings;
• Motions Calendars;
• “Status” Calendars;
• Stipulated Final Order and Withdrawal Calendars;
• Individual Hearings on Cancellation of Removal for long-time lawful and unlawful residents;
• Uncontested Adjustments of Status and other types of equitable waivers; and
• Voluntary Departure as the sole application cases
have elements in common with most other types of judicial work.
Using Auxiliary Judges for such cases would allow those judges, from any Federal or State system, with sound work records, that is, those with impeccable reputations for fairness, professionalism, judicial efficiency, and impartiality, to handle these types of immigration adjudications with a modest amount of additional training and in close consultation and cooperation with the sitting Immigration Judges in a particular location.
In this respect, our emphasis would always be on aiding existing, sitting U.S. Immigration Judges, in cooperation with them and at their request, in the ways those sitting judges deem most helpful, fair, and effective.
It would never be on fulfilling inappropriate and unethical “production quotas,” numerical goals, or pandering to interests who want to use the judicial system to fulfill political or law enforcement objectives inconsistent with Due Process, fundamental fairness, or sound judicial administration.
We do not propose that “Auxiliary Judges” ever work directly for or under the supervision of non-judicial political officials as is now, disturbingly, the case in our Immigration Court System. Indeed, the current unwarranted attack on the independence and professionalism of Immigration Judges by unqualified political officials seeking to “decertify” the Immigration Judges’ professional association, the National Association of Immigration Judges, is a prime example of the type of counterproductive activity in which “Auxiliary Judges” should never be allowed to participate, in any way.
By contrast with the types of more straightforward judicial work described above as potential “low hanging fruit,” Asylum Cases, Withholding of Removal Cases, and applications for protection under the Convention Against Torture involve complex legal and factual issues. These are matters that should NOT be delegated to retired judges from other fields.
Indeed, one huge advantage of our proposal is that it would allow existing and future Immigration Judges to spend adequate time (a contested fair hearing on any of these aforementioned protection matters would take a well-trained judge 3-4 hours, minimum) on these types of cases and to receive more and better training on how to fairly and timely adjudicate, consistent with Constitutional Due Process, claims for protection under these laws and International Conventions.
Of course, there would be some administrative costs involved with training and maintaining a list of those willing to serve as “Auxiliary Immigration Judges.” But, they pale in relation to the costs of continuing to throw new permanent positions into a badly broken and dysfunctional system.
Indeed, some, such as the ABA Commission on Immigration, have observed that additional Immigration Judge hiring under current conditions has demonstrably been a waste of taxpayer money that has actually made the system worse and further impaired the delivery of Due Process to those vulnerable individuals whose lives depend on fair, professional, and efficient administration of Due Process and fundamental fairness in our Immigration Courts.
Sadly, we surmise that significant amounts of the “assembly line (in)justice” currently being encouraged and delivered to represented individuals in today’s Immigration Courts will eventually have to be re-adjudicated by orders of the Article III reviewing courts because of legal and/or factual errors. The only reason we don’t include unrepresented individuals in our equation is that these, unfortunately, are often “railroaded” out of our country without realistic access to the Article III Courts.
As lawyers with a combined 90 years of experience working in State and Federal justice systems, as prosecutors, judges, private litigators, educators, and government officials, at both the national and local level, we cannot in good conscience watch the continued deterioration of justice in the Immigration Courts while constructive ideas for improvements and efficiency and fairness are ignored or left unaddressed.
The concept of using retired State and Federal Judges outside the Immigration System to do certain types of cases to augment justice and relieve the incredible stress on full time Immigration Judges, in times of emergency or workload surges, without all the problems inherent in the current hiring of permanent judges by the DOJ, easily could be incorporated into one of the “Independent Article I Immigration Court” bills being advocated and advanced by groups such as the ABA, FBA, AILA, and the National Association of Immigration Judges (“NAIJ”).
The current system is dying before our eyes. We need to “pull out all the stops,” consider “every potential concept,” and utilize “positive professional creativity” (the antithesis of the negative energy devoted to cruel and counterproductive “gimmicks” and outright illegal actions) designed to enhance, rather than denigrate, Due Process, fundamental fairness, and judicial efficiency without sacrificing quality.
It is in that spirit that we respectfully request those involved in legislative reform of our Immigration Court system to consider incorporating our concept of an “Auxiliary Immigration Judiciary” into overall legislative proposals for positive reform of the Immigration Courts now being advanced by all of the leading voices in the field.
Amid these atrocities, many people in the United States are asking how they can help. For those who want to contribute, there is a simple way that doesn’t require donating money, living in a border town, or speaking Spanish: volunteering as a court observer.
Court observers attend asylum hearings to shed light on the immigration court system, which is among the least transparent institutions of the justice system. Qualifications are minimal—one needs only a valid government photo ID and the ability to observe in silence and take legible notes, since recording devices aren’t allowed. Volunteers can plug into different programs to share their observations, as well as discuss the process with family and friends or post their findings on social media. Collectively, this information can be used to highlight judges or courts that are particularly unfriendly to asylum seekers. It can also empower advocates pushing for systemic reform of the 50 immigration courts in 29 states, Puerto Rico, and the Northern Mariana Islands deciding the fate of every asylum seeker, many of whom are forced to return to the place they just barely escaped from.
“The immigration court system has been so insulated from public view,” Michele Garnett McKenzie, deputy director of The Advocates for Human Rights, an organization that has been running a court observation program since 2017, told Rewire.News.“It’s small, it’s under the radar, and it lulls us to thinking that there are a set of rules and if the rules are followed, justice will be done.”
Reports, however, are surfacing of judges who haven’t granted a single asylum out of 200 cases. Asylum seekers who are deported are sent back to a place where they might be tortured or killed.
Ariel Prado, who organizes the volunteer-based court watch program in Atlanta, Georgia, for Innovation Law Lab, hasn’t encountered a judge who has denied 100 percent of asylum cases. “But there are judges in Atlanta with a denial rate in the high 90s,” Prado told Rewire.News.
These high denial rates don’t tell us the full story, Prado noted. “You might think [the judges] have a different understanding of the law or they have a constrained understanding of what asylum is or they apply the law differently,” Prado said. “In [immigration court], it’s a much more human level than that. You see women who describe sexual abuse, repeated rape over the span of the year, being in captivity, being forcefully drugged … and you watch mostly male judges almost doze off through the testimony and totally trivialize [the woman’s] experience in their summary.”
Other advocates echo similar frustrations. Emem Maurus is an immigration attorney for Al Otro Lado, a bi-national nonprofit serving asylum seekers who seek to migrate to the United States, in Tijuana, Mexico. The organization recently launched a court observation program to collect information and bring transparency to Migrant Protection Protocols. Without accountability, Maurus told Rewire.News, “it’s a black hole in terms of what’s happening” to asylum seekers. Maurus described a judge who asked an asylum seeker to designate the country of his removal in case his asylum was denied. “The man said, I can’t go back to Honduras,” said Maurus. The judge then asked the government lawyer for a recommendation. “[The government lawyer] very glumly said, ‘Honduras.’ And the judge said, ‘OK, Honduras,’” added Maurus.
Although Maurus finds these incidents difficult to observe, they believe it’s crucial to document “the human cost of [the collective policies] that Trump [has] enacted.”
Under the “Remain in Mexico” policy, asylum seekers are forced to wait in Mexico for their case to be heard, and when they eventually appear for court, most are unrepresented. Lack of representation can be detrimental to an asylum case.
As part of her court observation for Al Otro Lado, volunteer Sarah Gibb Millspaugh records whether asylum seekers appear with a lawyer and if they try to obtain council. Although the San Diego immigration court provides asylum seekers with a list of legal aid, only 5 percent of people she observed had legal representation. “When you’re living in shelters, [it is difficult] to find a lawyer across the border that will connect with you in Mexico,” Millspaugh told Rewire.News. “The list they had posted in the court were all in San Diego and not in Tijuana.”
Compounding the issue, many U.S.-based immigration law firms don’t answer phone calls from Mexico, according to Maurus. And there are other obstacles. In several immigration courts, interpreters communicate through video as they aren’t present. “So if the judge talks to the prosecutor, it doesn’t get interpreted for the asylum seeker,” said McKenzie. “The interpreters only translate questions addressed to the asylum seekers.” Given such circumstances and the lack of adequate representation, it is highly unlikely for asylum seekers to receive a fair trial.
Millspaugh found the immigration judges she observed to be compassionate. Even so, like other advocates, she thinks the law is unjust. “Some of the most emotional points were that [the judge] said we’ll review [the] case at the next hearing in September.” This meant the asylum seekers would have to live in Mexico shelters for another two-and-a-half months or on the streets of one of the most dangerous cities in the world, with no money or means to protect themselves. “A woman said a man had followed her twice, [while she was in Mexico awaiting her court hearing], [trying] to take her daughter,” Millspaugh added. “Her daughter was about three.” A man and his son who had been threatened in Mexico asked the judge if she could hold the hearing any sooner. Due to a backlog in cases, the judge was able to expedite the case by only two weeks.
Millspaugh observed another judge who asked asylum seekers to not bring their children to their court hearing. Afterwards, Millspaugh wrote the judge a letter stating that given the unstable and unsafe conditions in Mexico, asylum seekers have no choice but to bring their children to the court. “I wouldn’t leave my child in Mexico. I would bring my child,” said Millspaugh.
The advocates Rewire.Newsspoke to encouraged people of all backgrounds to volunteer as court observers. Given the background and different experiences of volunteers, McKenzie believes they can observe court hearings from different angles. “[We have] an amazing array of retired people who go [into the immigration courts] with 40 years of professional experience as a psychologist or a child protection worker,” she said.
Prado, who is helping develop an Immigration Court Watch browser-based app, believes who controls the narrative is important. “It’s all [up to] the community to investigate where the truth lies. Court observation is the core of truth finding and it’s meant to be a national project.”
Scheduled to launch in mid-August, the app uses standardized forms to document immigration judges’ conduct, the hearing outcome, and other factors. “That way we can compare the immigration judge conduct and hearing outcomes by more than just [what the government and the Department of Justice] is willing to share,” said Prado. The forms are uploaded onto the app, which will read responses, ask follow-up questions, and store the information in a centralized location.
“Court observation makes sure what happens [to asylum seekers] isn’t completely shrouded and opaque,” Prado said. There are times, however, that immigration judges determine a hearing should be closed to the public in order to protect the asylum seeker from having to share sensitive details in front of an audience. Other times a judge would rather not be scrutinized or might be concerned the observers will be disruptive. Prado noted it would be ill-advised for observers to challenge the judge. Instead they should document they were ordered to leave the immigration court along with any reasons the judge provides.
McKenzie believes court observation could help the justice system become accountable and even change the behavior of the judges. “The system is designed to operate for the benefit of the system and not the public,” McKenzie said. “Without public engagement there is no sunshine, no transparency. Transparency and accountability are fundamental to protecting the human rights of the people.”
When Millspaugh shared her experience as a volunteer court observer with friends, they were concerned that it is difficult to witness such heartbreaking proceedings. But Millspaugh is undeterred, as she feels contributing to stopping human rights violations is empowering. “There is something that’s very life-giving … about actually engaging in the system. When we know what’s happening and we’re not connecting with it, there is a helpless despair we can feel. We can do something. Even if we [don’t] stop it, we are mitigating the horrors that are inflicted.”
As this article aptly points out, every concerned American can take part in supporting the many traumatized individuals being sentenced to injustice in our disgracefully broken U.S. Immigration Courts. You don’t have to be a lawyer or a journalist. These “courts that function more like star chambers” have been “weaponized” by the Trump Administration against the very individuals they are supposed to be protecting against unlawful Government actions, Executive overreach, and the intentional misconstruction of the laws granting asylum and other immigration benefits.
This article also correctly points out that the so-called “border crisis,” largely created and totally aggravated by this “maliciously incompetent” Administration, has been used to divert attention from the gross violations of legal and human rights and basic morality that the Administration inflicts daily in the “captive” Immigraton Courts as it mocks constitutional Due Process and fundamental fairness.
History will record the intentional misdeeds, lack of human empathy, and the often life-threatening harm being cowardly and unfairly inflicted on those seeking mercy and refuge under our laws.
WASHINGTON, DC — On July 29, 2019, Attorney General (AG) William Barr issued a precedent decision in Matter of L-E-A- and announced that in his view, families cannot be considered a particular social group (and thus grounds for asylum) unless they are recognized by society as such.
AILA Second Vice President Jeremy McKinney stated, “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum. Courts, like the 4th Circuit Court of Appeals in Richmond, Virginia, have voluminous case law directly contradicting the Attorney General’s decision today.
“The impact of AG Barr’s decision, along with the other decisions issued by his immediate predecessors on asylum and the nation’s immigration courts, cannot be overstated. Last summer, the AG issued Matter of A-B- attempting to end the category of persecution – essentially restricting domestic violence victims and other victims of crimes perpetrated by private, non-government actors from their ability to qualify for asylum. Today, the AG’s office further attempts to restrict asylum by targeting a new category of asylum seekers: families. This will cause irreparable harm. We know that these are some of the most vulnerable of asylum seekers as parents flee with their children in order to protect them from persecution. This decision unnecessarily makes asylum harder. Clearly, our nation needs an independent immigration court system separate from the Department of Justice.”
Cowardice is the very definition of when those in power whose job and solemn duty is to protect and vindicate the rights of others, particularly the most vulnerable among us like refugees, instead grossly abuse their power by picking on them, bullying them, and abusing them. Whether or not Barr and the other White Nationalist restrictionists in the Trump Administration are committing actual crimes under U.S. law, they are certainly guilty of “crimes against humanity” in any normal sense of the word.
It is for legal scholars, historians, and moral philosophers to insure that Trump, Pence, Barr, Sessions, “Cooch Cooch,” “Big Mac With Lies,” Miller, Nielsen, Kelly, Homan, Morgan, and others who have enthusiastically supported and enabled this debacle do not escape the negative judgements of history!
Questions are still swirling around the immigration raids that President Donald Trump said he launched over the weekend, but one thing is certain: Many immigrants caught in their net will be sent into a court system already crippled by a vast backlog of ca…
This is a national disaster of gargantuan proportions unfolding in plain sight every day. Yet, somehow it remains largely “below the radar screen.” Nobody except those of us (and a few conscientious reporters, like Julia) who truly understand the relationship of the intentionally broken and thoroughly trashed U.S. Immigration Courts to our overall justice system seems motivated to fix this disgraceful mockery of fundamental fairness and impartial decision-making.
This definitely has the real potential to “crash” the entire U.S. justice system. Under Trump, Barr, and the rest of the sycophants, the backlogs will keep growing exponentially until the Immigration Court system collapses, spewing forth one to two million backlogged cases into the laps of those same smug Article IIIs who are closing their eyes to the miscarriages of justice befalling others on their watch. I guess you can’t hear the tormented screams of the abused way up in the “ivory tower.”
Obviously, as proved over and over again during the past two years, the Trump Administration is without shame, incompetent, and beyond accountability.
However, Members of Congress and the Article III Judges could act tomorrow (yes, there are bills already drafted that nobody is seriously considering, and the multiple Due Process violations of our Constitution infecting every part of this corrupt system are patently obvious, even to my Georgetown Law students, let alone so-called “real” judges) to put an end to this nonsense that is literally killing folks and destroying innocent lives. They should be held fully accountable for their gross dereliction of duty and their mass failure to uphold their oaths of office.
On a cheerier note, here’s my favorite comment about Julia’s article from my good friend, colleage, and fellow blogger, retired Judge Jeffrey S. Chase:
[Retired Judge] Bob Vinikoor and I are quoted.The author, Julia Preston, actually first asked me “Is this Jeffrey Chase, the actor?”She had seen me perform in the play [Waterwell’s NY production of ‘The Courtroom’], and said I had sworn her in as a US citizen in the last scene, which, since she was born in Illinois, was something she had not previously experienced.
Hope your Actor’s Equity Card is in good standing, my friend!
Gabriel Thompson & Leonardo Santamaria in Topic Magazine:
“Your Judge Is Your Destiny”
Agnelis L. Reese has presided over more than 200 hearings during the past five years as an immigration judge. Unique among her peers, she has rejected every single case.
The Supreme Court set forth a generous view of asylum law — even a 10% chance of persecution is enough to qualify — in the 1987 case Cardoza-Fonseca v. INS, discussed in this article. Following the Supreme Court’s directive, the BIA in Matter of Mogharrabi adopted a generous “reasonable person” standard for asylum eligibility, assuring everyone that asylum could be granted “even where persecution is significantly less” than probable.
However, judges like Judge Agnelis Reese have a different idea: treat asylum as a “loophole” and abuse your power over individuals’ lives by looking for bogus ways to deny protection rather than grant it. As pointed out by this article, one of the “best” of these “legal gimmicks” is simply arbitrarily to decide not to believe anyone’s claim or to “nit-pick” memories in a way that would establish Judge Reese and others like her as “inherently not credible” if applied to them. Much like the Trump Administration as a whole.
However, this is about more than just one ill-qualified asylum judge. For 22 years, Judge Reese was allowed to abuse asylum seekers with her one-sided decision making. That spanned two entire Administrations, one of each party, and two partial ones. Yet the BIA, EOIR, the DOJ, and life-tenured Article III Court of Appeals Judges failed to intervene to force Judge Reese, and other like her, to either apply asylum law in the fair, reasonable, and generous manner it was intended or to find other jobs.
There are “other Judge Reeses” out there today screwing the most vulnerable among us with dishonest interpretations of asylum law and facts, particularly in the area of credibility and “nexus” to a “protected ground.” Now, however, instead of being “outliers,” they are the kinds of “shining example” judges who implement the Administration’s White Nationalist false narrative that all asylum seekers from all countries are “gaming the system” and ought to be rejected en masse, without fair and impartial adjudications, in some cases amounting to literately “death sentences” without anything approaching due process.
All this is going on right under the noses of life-tenured Article III Judges who are supposed to be enforcing Due Process and fundamental fairness by insuring that the Immigration Court system provides fair and impartial adjudications (it doesn’t), that the generous criteria set forth in INS v. Cardoza-Fonseca and Matter of Mogharrabi are not just given “lip service” but are actually applied in every case (they aren’t), that credibility determinations are based on the record as a whole and all relevant factors (they aren’t), and that “mixed motive” for acts of persecution is properly considered and applied (it isn’t).
Of course, Congress and to some extent the voters are to blame for the current disgraceful parody of justice in our Immigration Courts. But, careers like that of Judge Reese are proof that the Article III Courts are also failing to live up to their statutory, constitutional, and human obligations and thus have become part of the problem, rather than part of the solution.
I can only hope that some future legal historian will analyze in detail, naming names, the failure of the Article III Courts, up to and including the Supremes, to perform their functions with integrity and thereby to have prevented the legal, constitutional, and human tragedy and mockery of justice taking place every day in our broken Immigration Courts.
Unqualified, yet empowered, judges like Reese are a symptom, rather than the cause of, that broken system.
Just yesterday, four distinguished legal organizations sent a joint letter to Congress calling for the establishment of an independent U.S. Immigration Court in view of the demonstrated catastrophic failure of the current system to provide Due Process to asylum seekers and other migrants:
ABA signs joint letter to Congress on establishing an independent immigration court system
WASHINGTON, D.C., JULY 9, 2019 —The American Bar Association has joined with three other legal organizations to call on Congress to establish a separate immigration court system that is independent of the U.S. Department of Justice.
ABA President Bob Carlson, along with the presidents of the American Immigration Lawyers Association, the Federal Bar Association and the National Association of Immigration Judges, will send a joint letter to Congress on July 11 stating that immigration courts “cannot meet the standards which justice demands” because they are not truly independent. This issue is particularly crucial as immigration courts struggle with crisis-level backlogs of almost 900,000 cases.
Under the current arrangement, immigration courts are part of the U.S. Department of Justice, and the judges in those courts are answerable to the U.S. Attorney General, who is also the nation’s chief prosecutor.
In their joint letter to Congress, the four organizations note that this inherent conflict of interest means that immigration judges are “particularly vulnerable to political pressure and interference.” In addition to the structural issues, the letter said that problems have “resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner.”
The lack of independence in the immigration court system was also addressed in the ABA’s recent updated report, “Reforming the Immigration System.” In the report, the organization urged removing the immigration courts from DOJ to ensure they are given the independence they need to be fair, impartial arbiters.
A telephone media briefing on the letter will be held Thursday, July 11, at 1pm ET/10am PT immediately following submission of the letter to Congress.
Briefing speakers
· Wendy Wayne, Chair, American Bar Association Commission on Immigration
· Jeremy McKinney, Second Vice President, American Immigration Lawyers Association
· Hon. Denise Noonan Slavin, former Immigration Judge and President Emeritus of the National Association of Immigration Judges
· Elizabeth Stevens, Chair, Federal Bar Association Immigration Law Section
· Greg Chen, Director of Government Relations, American Immigration Lawyers Association (Moderator)
Contact twiseman@aila.org to receive dial-in information and the embargoed letter.
BUREAUCRATS IN ROBES: IMMIGRATION “JUDGES” AND THE TRAPPINGS OF “COURTS”
AMIT JAIN*ABSTRACT
As U.S. immigration policy and its human impact gain popular salience, some have questioned whether immigration courts—often the first-line adjudicators of deportation—are “courts” at all in the American adversarial legal tradition. This Article aims to answer this question through a focus on the role of the immigration judge (IJ). Informed by in-depth interviews with twelve former IJs and three former supervisory officials, I argue that immigration courts present with superficial hallmarks of adversarial courts, but increasingly exhibit core features of a tightly hierarchical bureaucracy. Although not all features of an immigration bureaucracy are inherently unde- sirable, masking a bureaucracy with judicial trappings results in a deceptive facade of process that likely limits scrutiny from federal courts and calms public discontent with harsh immigration laws. In light of this phenomenon, enhancing IJ independence through the creation of an Article I immigration court would solve some problems with immigration adjudication but risk papering over others. Instead, achieving a fair system will require both procedural and substantive reforms.
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Read Amit’s full article at the above link.
Yes, I recognize that Amit undercuts my arguments for an immediate halt of this system and change to Article I without waiting for other reforms to “humanize” immigration law and put them more in line with the actual national perception of immigrants (which, as Amit points out, is nowhere near as racist and inhuman as Trump’s White Nationalist restrictionist abomination now being peddled by Trump, Pence, many in the GOP, at DHS, and most disturbingly, at DOJ. For example, most Americans would favor taking care of “Dreamers” now, without all the restrictionist “poison pills” attached). I agree that other practical and humanizing reforms are necessary; but without immediate Immigration Court intervention and reform every other immigration reform becomes meaningless and innocent people will continue to die, be tortured, and be abused “on our watch.”
Immigration Court reform can’t wait! Every day, the statute, our Constitution, international treaties, our national values, and human dignity are being mocked and destroyed by what is happening in our Immigraton Courts under the “Minister of Injustice” Bill Barr and his lawless and spineless sycophants in EOIR Management.
It’s past time for the Article III Courts to stop screwing around, do their Constitutional duty, and put a screeching halt to this abomination and blot on our national conscience. Stop these “Fake Courts” in their tracks!
No more “removal orders” until Congress creates an independent Immigration Court system that passes legal and Constitutional muster and complies with our treaty obligations. And, until that happens, the DOJ should be forbidden from any further meddling in the Immigration Courts. If the Immigration Court System is to continue to operate on an interim basis, it should be under an “Order of Supervision” from Article III Circuit Judges just as was done with Constitutionally deficient and defiant school systems in the South following Brown.
Either that or the Article III Courts should appoint an active or retired Article III Judge as a “Special Master” with authority to insure fair, impartial, and legal operation until Congress corrects these flaws.
Allowing human beings to be “degraded and railroaded” back to life threatening situations, often after having been abused, humiliated, threatened and mistreated by so-called “judges” and their White Nationalist overlords is no laughing matter! It’s a national disgrace, the elimination of which should be our highest national priority!
