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

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

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

BY BOB CARLSON

MARCH 20

Photo of Bob Carlson by Tom Salyer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

03-03-19

COURTING DISASTER: NEW AILA REPORT SHREDS DOJ’S “BUILT TO FAIL” IMMIGRATION COURT BACKLOG REDUCTION PROGRAM — “Malicious Incompetence” Turns Tragedy To Travesty! — McKinney, Lynch, Creighton, & Schmidt Do Press Conference Exposing Injustice, Waste, Abuse — Listen To Audio Here!

OUR TEAM:

Jeremy McKinney, Attorney, Greensboro, NC, AILA National Treasurer

Laura Lynch, Senior Policy Counsel, AILA,

Emily Creighton, Deputy Legal Director, American Immigration Council

Paul Wickham Schmidt, Retired U.S. Immigration Judge

Read the AILA Report (with original formatting) at the link below:

19021900

FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog February 21, 2019
Contact: Laura Lynch (llynch@aila.org) 1
On December 19, 2018, AILA and the American Immigration Council obtained a partially redacted memorandum through the Freedom of Information Act (FOIA), entitled the Executive Office for Immigration Review’s (EOIR) Strategic Caseload Reduction Plan (hereinafter “EOIR’s plan”). EOIR’s plan, which was approved by the Deputy Attorney General for the Department of Justice (DOJ) on October 31, 2017,2 states that the overarching goal was “to significantly reduce the case backlog by 2020.” 3 In the following months, DOJ and EOIR implemented the plan by rolling out several policy initiatives, including multiple precedent-setting opinions issued by then-Attorney General (AG) Jeff Sessions.
Contrary to EOIR’s stated goals, the administration’s policies have contributed to an increase in the court backlog which exceeded 820,000 cases at the end of 2018.4 This constitutes a 25 percent increase in the backlog since the introduction of EOIR’s plan.5 For example, the October 2017 memorandum reveals that EOIR warned DOJ that the Department of Homeland Security’s (DHS) potential activation of almost 350,000 low priority cases or cases that were not ready to be adjudicated could balloon the backlog.6 Nonetheless, then-AG Sessions ignored these concerns and issued a decision that essentially stripped immigration judges (IJs) of their ability to administratively close cases and compelled IJs to reopen previously closed cases at Immigrations Customs Enforcement’s (ICE) request.7
The policies EOIR implemented as part of this backlog reduction plan have severely undermined the due process and integrity of the immigration court system. EOIR has placed enormous pressure on IJs by setting strict case quotas on and restricting their ability to manage their dockets more efficiently. This approach treats the complex process of judging like an assembly line and makes it more likely that judges will not give asylum seekers and others appearing before the courts enough time to gather evidence to support their claims. People appearing before the courts will also have less time to find legal counsel, which has been shown to be a critical, if not the single most important factor, in determining whether an asylum seeker is able to prove eligibility for legal protection.
The foundational purpose of any court system must be to ensure its decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. Efforts to improve efficiency are also important but cannot be implemented at the expense of these fundamental principles. EOIR’s plan has not only failed to reduce the backlog but has eroded the court’s ability to ensure due process. Furthermore, EOIR’s plan demonstrates the enormous power DOJ exerts over the immigration court system. Until Congress creates an immigration court that is separate and independent from DOJ, those appearing before the court will be confronted with a flawed system that is severely compromised in its ability to ensure fair and consistent adjudications.
I. Background on EOIR’s Inherently Flawed Structure
The U.S. immigration court system suffers from profound structural problems that have severely eroded both its capacity to deliver just and fair decisions in a timely manner and public confidence in the system
AILA Doc. No. 19021900. (Posted 2/21/19)

itself.8 Unlike other judicial bodies, the immigration courts lack independence from the Executive Branch. The immigration courts are administered by EOIR, which is housed within DOJ – the same agency that prosecutes immigration cases at the federal level. This inherent conflict of interest is made worse by the fact that IJs are not classified as judges but as government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the AG, the chief prosecutor in immigration cases. The current administration has taken advantage of the court’s structural flaws, introducing numerous policies — including EOIR’s plan — that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.
II. Policies Identified in EOIR’s Plan
Administrative Closure
Stated Policy Goal: To reduce the case backlog and maximize docket efficiency, EOIR’s plan called for the strengthening of EOIR and DHS interagency cooperation.9 EOIR’s plan advised DOJ that “any burst of case initiation by a DHS component could seriously compromise EOIR’s ability to address its caseload and greatly exacerbate the current state of the backlog.”10
Reality: Despite EOIR’s warning, then-AG Sessions issued a precedent decision in Matter of Castro Tum,11 which contributed to a rise in the case backlog. This decision severely restricts a judge’s ability to schedule and prioritize their cases, otherwise known as “administrative closure” and even compels IJs to reopen previously closed cases at ICE’s request.12
Administrative closure is a procedural tool that IJs and the BIA use to temporarily halt removal proceedings by transferring a case from active to inactive status on a court’s docket. This tool is particularly useful in situations where IJs cannot complete the case until action is taken by USCIS or another DHS component, state courts and other authorities. Prior to the issuance of Matter of Castro Tum, numerous organizations, including the judges themselves, warned DOJ that stripping IJs of the ability to utilize this docket management tool “will result in an enormous increase in our already massive backlog of cases.”13 In fact, an EOIR-commissioned report identified administrative closure as a helpful tool to control the caseload and recommended that EOIR work with DHS to implement a policy to administratively close cases awaiting adjudication in other agencies or courts.14
Nonetheless, the former AG issued Matter of Castro Tum15 sharply curtailing IJs’ ability to administratively close cases. The decision even called for cases that were previously administratively closed cases to be put back on the active immigration court dockets.16 In August 2018, ICE directed its attorneys to file motions to recalendar “all cases that were previously administratively closed…” with limited exceptions—potentially adding a total of 355,835 cases immediately onto the immigration court docket.17 Three months later, ICE had already moved to recalendar 8,000 cases that had previously been administratively closed, contributing to the bloated immigration court case backlog.18 In response, members of Congress sent a letter to DOJ and DHS outlining their concerns about ICE’s plans to recalendar potentially hundreds of thousands of administratively closed cases, further clogging the system and delaying and denying justice to the individuals within it.19
Quotas and Deadlines
Stated Policy Goal: To expedite adjudications, EOIR’s plan calls for the development of caseload
management goals and benchmarks.20
Reality: EOIR imposed unprecedented case completion quotas and deadlines on IJs, that pressure judges to complete cases rapidly at the expense of balanced, well-reasoned judgment.21
2
AILA Doc. No. 19021900. (Posted 2/21/19)

At the time EOIR’s plan was issued, EOIR’s collective bargaining agreement with the National Association of Immigration Judges (NAIJ) prohibited “the use of any type of performance metrics in evaluating an IJ’s performance.”22 Despite opposition from NAIJ,23 DOJ and EOIR imposed case completion quotas and time-based deadlines on IJs, tying their individual performance reviews to the number of cases they complete.24 Among other requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.25 Disturbingly, DOJ unveiled new software, resembling a “speedometer on a car” employed to track the completion of IJs’ cases.26
Sample Image of “IJ Performance Data Dashboard”
(Source: Vice News)27
AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the NAIJ as a “death knell for judicial independence.”28 The purported argument for these policies is that it will speed the process up for the judges. However, applying this kind of blunt instrument will compel judges to rush through decisions and may compromise a respondent’s right to due process and a fair hearing. Given that most respondents do not speak English as their primary language, a strict time frame for completion of cases interferes with a judge’s ability to assure that a person’s right to examine and present evidence is respected.29
These policies also impact asylum seekers, who may need more time to gather evidence that is hard to obtain from their countries of origin, as well as unrepresented individuals, who may need more time to obtain an attorney. The Association of Pro Bono Counsel explained that the imposition of case completion quotas and deadlines “will inevitably reduce our ability to provide pro bono representation to immigrants in need of counsel.”30 Unrepresented people often face hurdles in court that can cause case delays, and scholars have concluded that immigrants with attorneys fare better at every stage of the court process.31 Furthermore, these policies compel IJs to rush through decisions may result in errors which will lead to an increase in appeals and federal litigation, further slowing down the process.
Continuances
Stated Policy Goal: To “streamline current immigration proceedings”32 and “process cases more
efficiently,”33 EOIR’s plan called for changes in the use of continuances in immigration court.34
Reality: The restrictions DOJ and EOIR placed on the use of continuances make it far more difficult for immigrants to obtain counsel and interfere with judges’ ability to use their own discretion in each case.
EOIR and DOJ introduced policies that pressure judges to deny more continuances at the expense of due process. In July 2017, the Chief IJ issued a memorandum which pressures IJs to deny multiple continuances, including continuances to find an attorney or for an attorney to prepare for a case.35 Following this policy change, then-AG Sessions issued the precedential decision, Matter of L-A-B-R- et al., interfering with an IJ’s ability to grant continuance requests and introducing procedural hurdles that will also make it harder for people to request and IJs to grant continuances.36
3
AILA Doc. No. 19021900. (Posted 2/21/19)

These policy changes weaken due process protections and contradict the agency’s plan to “improve existing laws and policies.” Continuances represent a critical docketing management tool for IJs and are a necessary means to ensure that due process is afforded in removal proceedings. The number one reason respondents request continuances is to find counsel, who play a critical role in ensuring respondents receive a fair hearing.37 Continuances are particularly important to recent arrivals, vulnerable populations (such as children), and non-English speakers—all of whom have significant difficulties navigating an incredibly complex immigration system. Furthermore, individuals represented by counsel contribute to more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, explained, “It is our experience, when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”38
Video Teleconferencing (VTC)
Stated Policy Goal: To expand its adjudicatory capacity, EOIR called for pilot VTC “immigration
adjudication centers.”39
Reality: EOIR expanded the use of VTC for substantive hearings undermining the quality of communication and due process.
A 2017 report commissioned by EOIR concluded that court proceedings by VTC should be limited to “procedural matters” because appearances by VTC may lead to “due process issues.”40 Despite these concerns, EOIR expanded use of VTC for substantive hearings. A total of fifteen IJs currently sit in two immigration adjudication centers—four in Falls Church, Virginia, and eleven in Fort Worth, Texas.41 IJs are currently stationed at these “centers” where they adjudicate cases from around the country from a remote setting.42
For years, legal organizations such as AILA and the American Bar Association (ABA) have opposed use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.43 Technological glitches such as weak connections and bad audio can make it difficult to communicate effectively, and 29 percent of EOIR staff reported that VTC caused meaningful delay.44 Additionally, VTC technology does not provide for the ability to transmit nonverbal cues. Such issues can impact an IJs’ assessment of an individual’s credibility and demeanor, which are significant factors in determining appropriate relief.45 Moreover, use of VTC for immigration hearings also limits the ability for attorneys to consult confidentially with their clients. No matter how high-quality or advanced the technology is that is used during a remote hearing, such a substitute is not equivalent to an in-person hearing and presents significant due process concerns.
IJ Hiring
Stated Policy Goal: In order to increase the IJ corps and reduce the amount of time to hire new
IJs, the former AG introduced a new, streamlined IJ hiring process.46
Reality: Following DOJ’s implementation of the streamlined IJ hiring process, DOJ faced allegations of politicized and discriminatory hiring47 that call into question the fundamental fairness of immigration court decisions.
On its face, the agency “achieved” its goal to quickly hire more IJs, reducing the time it takes to onboard new IJs by 74 percent and increasing the number of IJs on the bench from 338 IJs at the end of FY2017 to 414 IJs by the end of 2018.48 What these statistics do not reveal is that the new plan amended hiring processes to provide political appointees with greater influence in the final selection of IJs.49 In addition to procedural changes, DOJ also made substantive changes to IJ hiring requirements, “over-emphasizing litigation experience to the exclusion of other relevant immigration law experience.”50 Both Senate and
4
AILA Doc. No. 19021900. (Posted 2/21/19)

House Democrats requested an investigation with the DOJ Inspector General (IG) to examine allegations that DOJ has targeted candidates and withdrawn or delayed offers for IJ and BIA positions based on their perceived political or ideological views.51 These allegations are particularly troublesome given the influx in the number of IJs resigning and reports that experienced IJs are “being squeezed out of the system for political reasons.”52
Telephonic Interpreters
Stated Policy Goal: EOIR requested additional funding to support additional IJs on staff and to
improve efficiency.53
Reality: EOIR failed to budget for needed in-person interpreters54 resulting in the use of telephonic interpreters for most hearings, which raises concerns about hearing delays and potential communication issues.55
In April of 2017, an EOIR-commissioned report revealed that 31 percent of court staff reported that telephonic interpreters caused a meaningful delay in their ability to proceed with their daily responsibilities.56 With more than 85 percent of respondents in immigration court relying on use of an interpreter, EOIR’s decision to replace in-person interpreters with telephonic interpreters will undoubtedly make court room procedures less efficient.57 In addition, similar to many of the technological concerns cited with use of VTC, communication issues related to use of remote interpreters can jeopardize an immigrant’s right to a fair day in court. For example, it is impossible for telephonic interpreters to catch non-verbal cues that may determine the meaning of the speech.
III. Conclusion
The immigration court system is charged with ensuring that individuals appearing before the court receives a fair hearing and full review of their case consistent with the rule of law and fundamental due process. Instead of employing policies that propel the court toward these goals, the administration’s plan relies on policies that compromise due process. IJs responsible for adjudicating removal cases are being pressured to render decisions at a break-neck pace. By some accounts “morale has never, ever been lower” among IJs and their staff.58 Moreover, since the introduction of EOIR’s plan, the number of cases pending in the immigration courts has increased 25 percent (from 655,932 on 9/31/17 to 821,726 on 12/31/18). This number does not even account for the 35-day partial government shutdown that cancelled approximately 60,000 hearings while DHS continued carrying out enforcement actions.59 Congress must conduct rigorous oversight into the administration’s policies that have eroded the court’s ability to ensure that decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. But oversight is not enough. In order protect and advance America’s core values of fairness and equality, the immigration court must be restructured outside of the control of DOJ, in the form of an independent Article I court.60
900,000 800,000 700,000 600,000 500,000 400,000 300,000 200,000 100,000
0
792,738 821,726
655,932 521,416
460,021 430,095
356,246
PENDING IMMIGRATION CASES
EOIR Pending Cases
5
Pending cases equals removal, deportation, exclusion, asylum-only, and AILA Doc. No. w1it9hh0o2ld1in9g0o0nl.y. (Po
Source: Department of Justice
sted 2/21/19)

1 For more information, contact AILA Senior Policy Counsel Laura Lynch at (202) 507-7627 or llynch@aila.org.
2 *An earlier version of this policy brief, dated February 19, 2019, incorrectly stated that the memo was signed on October 17, 2017. This typo has been corrected. FOIA Response, see pg. 9.
3 On December 5, 2017, EOIR publicly issued a backgrounder for the EOIR Strategic Caseload Reduction Plan. U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
4 U.S. Department of Justice, EOIR Adjudication Statistics, Pending Cases, (Dec. 31, 2018). The over 820,000 cases does not account for the 35-day partial government shutdown that cancelled approximately 60,000 immigration court hearings while at the same time, DHS continued carrying out enforcement actions, Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
5 U.S. Department of Justice, Adjudication Statistics, Pending Cases, Dec. 31, 2018.
6 FOIA Response, see pg. 6.
7 Jason Boyd, The Hill, “8,000 new ways the Trump administration is undermining immigration court independence,” Aug. 19, 2018.
8 ABA Commission on Immigration, Reforming the Immigration System, Proposals to Promote the Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (2010).
9 FOIA Response, see pg. 6. See also U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
10 FOIA Response, see pg. 6.
11 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
12 Id.
13 NAIJ Letter to then-Attorney General Sessions, Jan. 30, 2018.
14 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017, pg. 26, [hereinafter “Booz Allen Report”].
15 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
16 Id.
17 ICE Provides Guidance to OPLA Attorneys on Administrative Closure Following Matter of Castro Tum, June 15, 2018.
18 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
19 Congressional Letter Requesting Information Regarding Initiative to Recalendar Administratively Closed Cases, Sept. 13, 2018.
20 FOIA Response, see pg. 5.
21 Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
22 FOIA Response, see pg. 5.
23 Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
24 FOIA Response, pg. 5. See also Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018. See also Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
25 See Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
26 C-SPAN, Federal Immigration Court System, Sept. 21, 2018. (“[t]his past week or so, they [EOIR] unveiled what’s called the IJ dashboard…this mechanism on your computer every morning that looks like a speedometer on a car… The goal is for you to be green but of course you see all of these reds in front of you and there is a lot of anxiety attached to that.” NAIJ President, Judge A. Ashley Tabaddor).
27 Ani Ucar, Vice News, “Leaked Report Shows the Utter Dysfunction of Baltimore’s Immigration Court,” Oct. 3, 2018.
28 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges (October 2017).
29 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence.
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30 Association of Pro Bono Counsel (APBCo), Letter to Congress IJ Quotas, Oct. 26, 2017.
31 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court (2016).
32 U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017, pg. 2.
33 FOIA Response, pg. 8.
34 FOIA Response, pgs. 7-8.
35 U.S. Department of Justice, Operating Policies and Procedures Memorandum 17-01: Continuances, July 31, 2017. 36 Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018).
37 GAO Report, 17-438, Immigration Courts, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, (June 2017).
38 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
39 FOIA Response, pg. 3.
40 Booz Allen Report, pg. 23.
41 U.S. Department of Justice, EOIR Immigration Court Listings, Feb. 2019.
42 Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
43 AILA Comments on ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Letter to ACUS, Feb. 17, 2012.
44 Booz Allen Report, pg. 23.
45 An EOIR commissioned report suggested limiting use of VTC to procedural matters only because it is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC. Booz Allen Report, pg. 23.
46 FOIA Response, pg. 3.
47 Priscilla Alvarez, The Atlantic, Jeff Sessions is Quietly Transforming the Nation’s Immigration Courts, Oct. 17, 2018.
48 U.S. Department of Justice, EOIR Adjudication Statistic, IJ Hiring, (Jan. 2019).
49 U.S. Department of Justice, EOIR Announces Largest Ever Immigration Judge Investiture, Sept. 28, 2018; Document Obtained via FOIA by Human Rights First, Memorandum for the Attorney General, Immigration Judge Hiring Process, Apr. 4, 2017.
50 Strengthening and Reforming America’s Immigration Court System, Hearing Before Subcommittee on Border Security and Immigration, of the Senate Committee on the Judiciary, 115th Cong. 5 (2018) (A. Ashley Tabaddor, President, NAIJ), See also Questions for the Record.
51 Senate and House Democrats Request IG Investigation of Illegal Hiring Allegations at DOJ, May 8, 2018. Problematic hiring practices are not new for this agency. Over a decade ago, the IG and the Office of Professional Responsibility revealed that then-Attorney General Alberto Gonzales utilized political and ideological considerations in the hiring of IJ and BIA candidates. U.S Department of Justice IG Report, (2008).
52 Hamed Aleaziz, BuzzFeed News, Being an Immigration Judge Was Their Dream. Under Trump, It Became Untenable, Feb. 13, 2019.
53 FOIA Response, pg. 3.
54 NAIJ Letter to Senators, Government Shutdown, Jan. 9, 2019.
55 Id.
56 Booz Allen Report, pg. 25.
57 Laura Abel, Brennan Center For Justice, Language Access in Immigration Courts, (2010).
58 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
59 Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
60 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
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Here’s the link to the audio:

https://www.aila.org/infonet/aila-press-call-on-eoir-memo-obtained-via-foia

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Here’s “simul-coverage” from LA Times star reporter Molly O’Toole:

https://www.latimes.com/politics/la-na-pol-immigration-court-backlog-worsens-20190221-story.html

The Trump administration’s controversial plan to shrink the ballooning backlog of immigration cases by pushing judges to hear more cases has failed, according to the latest data, with the average wait for an immigration hearing now more than two years.

Since October 2017, when the Justice Department approved a plan aimed at reducing the backlog in immigration court, the pending caseload has grown by more than 26%, from 655,932 cases to just shy of 830,000, according to Syracuse University’s Transactional Access Records Clearinghouse, which tracks data from immigration courts.

Even that figure likely understates the backlog because it doesn’t include the impact of the 35-day government shutdown in December and January. Because the system’s roughly 400 immigration judges were furloughed during the shutdown, some 60,000 hearings were canceled. Thousands were rescheduled, adding to the already long wait times.

The administration “has not only failed to reduce the backlog, but has eroded the court’s ability to ensure due process” by pressuring judges to rule “at a breakneck pace” on whether an immigrant should be removed from the United States, the American Immigration Lawyers Assn. — a nonprofit organization of more than 15,000 immigration attorneys and law professors — said in a statement.

When the Justice Department’s Executive Office of Immigration Review, which administers immigration courts, released its plan, officials described it as a “comprehensive strategy for significantly reducing the caseload by 2020,” according to a partially redacted copy of an October 2017 memo obtained by the immigration lawyers group through a Freedom of Information Act request.

“The size of EOIR’s pending caseload will not reverse itself overnight,” the memo said, but by fully implementing the strategy, the office can “realistically expect not only a reversal of the growth of the caseload, but a significant reduction in it.”

Instead, the average wait has grown by a month from January alone, to 746 days — ironically extending the stay of thousands of migrants whom the administration might want to deport from the United States. The Justice Department declined to immediately comment on the growth of the backlog.

The number of pending immigration cases has risen dramatically in recent years, doubling from less than 300,000 in 2011 to 650,000 by December 2017, the end of Trump’s first year in office, according to the Justice Department.

The Trump administration has blamed the ballooning backlog on President Obama’s immigration policies, saying that “policy changes in recent years have slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.”

Administration officials have pointed to Obama’s effort to focus deportation on immigrants with serious criminal records and protecting certain immigrants known as Dreamers who were brought to the U.S. as children as examples of policies that have provided incentives for illegal border crossings.

The administration’s plan to reverse the backlog included a number of controversial steps.

One move restricted the ability of immigration judges to schedule and set priorities for their cases under a process known as “administrative closure.” That change compelled judges to reopen thousands of cases that had been deemed low priority and had been closed. Within three months of the memo, Immigration and Customs Enforcement had moved to reschedule 8,000 cases, prompting concern from lawmakers, according to the immigration lawyers association. Potentially, as many as 350,000 cases ultimately could be added back onto the court dockets.

The administration’s plan also tied immigration judges’ individual performance reviews to the number of cases they complete, calling for them to finish 700 removal cases in the next year.

In contrast to regular courts, immigration judges are not independent; they’re part of the Justice Department. Because of that, the attorney general is both the chief prosecutor in immigration cases and the ultimate boss of the judges, who are classified as government attorneys.

The National Assn. of Immigration Judges, as well as the immigration lawyers association and other groups, have long called for Congress to end what they see as a built-in conflict of interest and create an immigration court separate from the Justice Department.

“As long as we continue to allow the court to be used as a law enforcement tool,” said Ashley Tabaddor, president of the National Assn. of Immigration Judges, “you’re going to get these kinds of backlogs and inefficiencies.”

Any speedup that may have resulted from the imposition of quotas on the judges has been overtaken by the administration’s stepped-up enforcement efforts, which have pushed thousands of new cases into the system.

Stepped-up enforcement without a corresponding increase in judicial resources provides the main reason the backlog has gone up so dramatically, said Stephen Legomsky, Homeland Security’s chief counsel for immigration from 2011 to 2013.

“Immediately upon taking office, President Trump essentially advised Border Patrol agents and ICE officers that they were to begin removal proceedings against anyone they encountered that they suspected of being undocumented, without sufficiently increasing resources for immigration judges,” Legomsky said.

Under previous administrations, “the thinking was, ‘Let’s not spend our limited resources on people who are about to get legal status,’” he said, “Taking that discretion away dramatically increased the caseload.”

Some officials warned that could happen when the effort to curtail the backlog began.

“Any burst of case initiation,” by Homeland Security “could seriously compromise” the Justice Department’s “ability to address its caseload and greatly exacerbate the current state of the backlog,” the acting director of the immigration review office wrote in the October memo to Deputy Atty. Gen. Rod Rosenstein.

The quota effort could also prevent attorneys from providing representation to immigrants, according to the Assn. of Pro Bono Counsel, which represents lawyers who handle cases free of charge for the poor.

Whether immigrants have legal representation makes a huge difference in the outcome of cases: Between October 2000 and November 2018, about 82% of people in immigration court without attorneys were either ordered deported or gave up on their cases and left the country voluntarily, while only 31% of those with lawyers were deported or left.

The administration has succeeded in speeding the hiring of new immigration judges by 74%. The number of immigration judges has grown from 338 when the plan was introduced to 414 by the end of 2018.

Lawmakers have raised concerns that some of those new hires have been politically motivated. In May, House Democrats requested an investigation by the Justice Department Inspector General’s office into allegations that candidates have been chosen or rejected for perceived ideological views.

“The current administration has taken advantage of the court’s structural flaws,” the immigration lawyers association wrote, “introducing numerous policies … that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.”

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My Takeaways:

The DOJ politicos made the already bad situation immeasurably worse;
At no time did any of those supposedly “in charge” seriously consider taking measures that could have promoted Due Process and fundamental fairness in a troubled system whose sole function was to insure and protect these Constitutional requirements;
Sessions was warned about the severe adverse consequences of eliminating “administrative closure” by EOIR, but went ahead with his preconceived “White Nationalist” agenda, based on bias, not law;
Deputy Attorney General Rod Rosenstein, who signed off on this monstrosity, is no “hero” just because he stood up to Trump on the Mueller investigation; he’s just another “go along to get along,” like the rest of the Trump DOJ political appointees (with the possible exception of FBI Director Chris Wray);
No sitting judge, indeed no real “stakeholder,” was consulted about these “designed to fail” measures;
The placement of what purports to be a “court system” dedicated to Due Process within the Justice Department is preposterous;
Congress, which created this parody of justice, and the Article III Courts who have failed to “just say no” to all removal orders produced in this “Due Process Free Zone” must share the blame for allowing this Constitutionally untenable situation to continue;
Once again, the victims of the Trump Administration’s “malicious incompetence” are being punished while the “perpetrators” suffer few, if any, consequences.

PWS

02-21-19

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UPDATE: Molly’s article was the “front page lead” in today’s print edition of the LA Times.

https://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Gotta give the crew at DOJ/EOIR HQ credit for screwing this up so royally that it’s now off the “back pages” and into the headlines where it belongs. You couldn’t buy publicity like this!

First EOIR Director David “No News Is Good News” Milhollan must be rolling over in his grave right now. And his “General Counsel/Chief Flackie,” my friend and former BIA Appellate Judge Gerald S. “No Comment/We Don’t Track That Statistic” Hurwitz must be watching all of this with amusement and bemusement from his retirement perch. Just goes to support the “Milhollan/Hurwitz Doctrine” that “only bad things can happen once they know you exist.”

PWS

02-22-19

U.S. IMMIGRATION COURTS: FEINBLOOM, STEVENS, & SCHMIDT TAKE CASE FOR ARTICLE I IMMIGRATION COURT TO FBA’S 2019 CIVIL RIGHTS ENTOUFFEE IN NEW ORLEANS, LA, FEB. 16, 2019

“Injustice Anywhere is a Threat to Justice Everywhere. . . . Whatever Affects One Directly, Affects All Indirectly.”

Dr. Martin Luther King, Jr.

Letters From the Birmingham Jail

New Orleans– Appearing before the Federal Bar Association’s 2019 Civil Rights Entouffee, Attorney Jeffrey Feinbloom of the FBA Civil Rights Section, FBA Immigration Section Chair Elizabeth “Betty” Stevens, and I made a powerful pitch to assembled Civil Rights Attorneys for their support for an Article I United States Immigration Court.

Our panel emphasized that the current Immigration Courts under the Executive Office for Immigration Review (“EOIR”), U.S. Department of Justice are a “failed system” threatening everyone’s civil rights. Notwithstanding more Immigration Judges, these “courts” have continued to build backlog at an astonishing and accelerating rate, now topping 1.1 million pending cases following the Government shutdown.

Worse yet, they have essentially become a “hostile environment” for migrants, their attorneys, and sometimes the Immigration Judges and court staff themselves. They also are an impediment to realistic, professional immigration enforcement by DHS. Perhaps worst of all, due process of law has become the apparent enemy of DOJ and EOIR, rather than the objective.

The only way out of this mess is the establishment of an independent Article I Immigration Court, administered in a professional and apolitical manner by sitting judges, not politicized bureaucrats in Washington. Section Chair Betty Stevens and other Section members have helped develop a non-partisan bill to create an Article I Court. We urge everyone to ask their Congressional representatives to make Immigration Court reform an urgent national priority.

Schmidt’s Five Points On Why U.S. immigration Courts Are Unlike Any Other Court System in America

Judges are selected, directed, and “supervised” by the Attorney General, the chief prosecutor;
There is no right to appointed counsel, so young children and others without any understanding of the U.S. legal system, often in detention, are forced to “represent themselves” in life or death cases against experienced ICE Counsel;
The chief prosecutor, the Attorney General, can change any individual case result that he doesn’t like, and rewrite immigration law in the DHS’s favor through “certified precedents;”
There is a 1.1 million case backlog, resulting largely from “Aimless Docket Reshuffling” by the DOJ that continues to grow, despite an increase in judges, without any realistic plan for reducing it;
So-called “civil immigration detention” can be used by the Government to limit representation, and for coercion and deterrence of migrants with little or no effective judicial recourse in many cases.

PWS

02-21-19

CALL US CRAZY, BUT . . . . THERE ARE SOLUTIONS TO THE IMMIGRATION COURT BACKLOG PROBLEM THAT WILL ENHANCE FAIRNESS & DUE PROCESS WITHOUT BREAKING THE BANK — It Just Requires Some Imagination, Initiative, & An Unswerving Commitment To Putting Due Process & Fairness First — The “Lister-Schmidt Proposal”

CALL US CRAZY, BUT . . . . THERE ARE SOLUTIONS TO THE IMMIGRATION COURT BACKLOG PROBLEM THAT WILL ENHANCE FAIRNESS & DUE PROCESS WITHOUT BREAKING THE BANK — It Just Requires Some Imagination, Initiative, & An Unswerving Commitment To Putting Due Process & Fairness First — The “Lister-Schmidt Proposal”

The other day I got a call from my good friend and UW Law classmate, retired Wisconsin State Judge Tom Lister. The conversation went something like this:

TOM: Schmidt, I’ve been reading about the backlog in your blog — 1.1 million cases! No way it’s going to be solved just by hiring more judges. But, hey, I’m out here living well in retirement, and I’d be happy to help out. And there are hundreds, perhaps thousands of other retired judges throughout the U.S who probably would be willing to pitch in too.

ME: Yeah, sounds nice Tom, but I doubt there is any money in the EOIR budget for hiring retired judges. They once claimed they would bring back some of my retired colleagues, but the program doesn’t seem to have gone anywhere.

TOM: I don’t need a salary. I’m willing to volunteer! Just pay my incidentals.

ME: Well, then there’s this thing called the Anti-Deficiency Act that prevents agencies like DOJ from accepting free services. It would take some kind of statutory waiver . . . .

By that time, I felt that I was retreating into just the type of bureaucratic “yes-buts” or “passive yeses” that I used to hate during my days as a bureaucrat right up until the present.

But, what if Congress created an independent Immigration Court free of the “bureaucratic no-nos” that plague the DOJ bureaucracy? And what if the system were run by actual sitting judges committed to using “teamwork and innovation” to solve problems, institute “best practices,” and aspire to become “the world’s best tribunals” guaranteeing fairness and Due Process for all?”

Maybe we’d have things like this:

SENIOR JUDICIAL DUE PROCESS BRIGADE

Retired judges of all types would be trained and available to assist the Immigration Courts in dealing with “surges,” retirement waves, changes in the law, and other “emergencies” on a volunteer basis.

DIVISION A: RETIRED IMMIGRATION JUDGES

They could be trained to handle all types of immigration cases on a volunteer “as needed” basis. This would be very similar to the Senior Judge Corps used by other Federal Courts.

DIVISION B: RETIRED JUDGES FROM OUTSIDE THE IMMIGRATION BENCH

They could be trained to handle certain types of Immigration Court adjudications that are primarily fact-findings that would require some basic knowledge of immigration law but not the degree of specialized expertise that might be expected of a permanent Immigration Judge. Like “Division A” they would be volunteers, requiring expense reimbursement only.

Obvious candidates for “Division B Judges:”

Cancellation of Removal all types where basic eligibility is uncontested and the only issues are hardship and discretion;
Bonds where there are no statutory eligibility issues;
Adjustments of Status;
“Voluntary Departure Only” cases;
Master Calendars;
Withdrawals and other stipulated cases;
Status Conferences;
In Absentia dockets.

ASYLUM OFFICER MAGISTRATE BRIGADE

Put the Asylum Officers under the Immigration Courts where they can be used for a wide range of adjudications much like U.S. Magistrate Judges. This would include, but not be limited to, asylum, withholding, and CAT cases. Another obvious candidate would be certain Non-Lawful-Permanent Resident Cancellation of Removal cases.

Since the existing USCIS program would be folded in, the expenses of this conversion would be minimal and the possibilities for improving justice, due process, and efficiency limitless!

This is by no means the full extent of what could be done to improve the delivery of justice and fairness in the U.S. Immigration Courts. But, to let the “creative juices and efficiencies flow,” it will require Congress to move the Immigration Courts out of the DOJ and create an independent court where judges are free to work as a team and with “stakeholders” to solve problems, rather than creating new ones or aggravating existing ones.

PWS

02-14-19

THE ABSURDITY OF TRUMP’S SHUTDOWN & ITS DEVASTATING EFFECT ON OUR ALREADY CRUMBLING IMMIGRATION COURT SYSTEM DETAILED IN OPEN LETTER TO CONGRESS BY NAIJ PRESIDENT, HON. A. ASHLEY TABADDOR

01092019senate

NATIONAL ASSOCIATION OF IMMIGRATION JUDGES
President A. Ashley Tabaddor c/o Immigration Court 606 S. Olive Street, 15th Floor Los Angeles, CA 90014 (213) 534-4491
______________________________________________________________________________________________________ January 9, 2019
Dear Senator,
As has been widely reported, the current government shutdown over U.S. immigration policy has placed an unmanageable burden on our nation’s Immigration Courts. As an Immigration Judge in Los Angeles presently on furlough and as President of the National Association of Immigration Judges (NAIJ), I am acutely aware of the impact of the current government shut down on our Immigration Courts, Immigration Judges and the parties who appear before us.
There is currently a backlog of more than 800,000 pending immigration cases (an increase of 200,000 cases in less than two years, in spite of the largest growth in the number of judges in recent history – from under 300 to over 400 U.S. Immigration Judges). We, as Immigration Judges, are responsible for determining whether claimants can remain in the United States or must be deported or detained.
Because of the crushing backlog of cases, our individual court calendars are booked, morning and afternoon, every day of the week, multiple years in advance. Some days our judges have more than 80 cases on their dockets. Every day that our courts are closed, thousands of cases are cancelled and have to be rescheduled. However, the likely re-scheduling option is – as Washington Post editorial writers suggest – plucked from a New Yorker cartoon: “Never. Does never work for you?” While this is hyperbole, it is not far from the truth. Since it is impossible to predict when these cases can reasonably be rescheduled, it might as well be “never.”
The concept of “never” cannot be accepted and does not work for the United States. It is unacceptable to prevent those who should be deported to remain here indefinitely or to prevent those who are eligible for relief from being granted relief and receive the benefit they deserve. When a hearing is delayed for years as a result of a government shutdown, individuals with pending cases can lose track of witnesses, their qualifying relatives can die or age-out and evidence already presented becomes stale. Those with strong cases, who might receive a legal
1

immigration status, see their cases become weaker. Meanwhile, those with weak cases – who should be deported sooner rather than later – benefit greatly from an indefinite delay.
Judges, as public servants, along with our fellow federal employees and people across the country, are also being asked to carry the burden of a government shut-down. Every Immigration Judge across the country is currently in a “no-pay” status. Those who have been furloughed are anxious about having been prevented from continuing to work and earn their living. The judges who have been deemed as “excepted” are serving the American people without pay and doing so with added unnecessary pressures, including the Department’s recent announcement that most hearings will no longer be accompanied with in-person interpreters, and that the judges’ previous compressed work schedules and administrative time to review cases has been cancelled. On behalf of the NAIJ, I urge you to bring a rapid end to the current shutdown.
The root cause, however, of an increasing backlog of cases, the delays, uncertainty and unfairness in U.S. Immigration Courts is that our Immigration Court and judges are directly accountable to the U.S. Attorney General, the federal government’s lead prosecutor. This underlying structural flaw has led to repeated violations of the basic tenants of our American judicial principles, that of an independent and impartial judge and court. While we are grateful to Congress for the recent allocation of additional funding to our resource starved courts, such as added Immigration Judge teams, history has proven that the issues plaguing our Immigration Courts will not be corrected simply through more funding. The enduring solution, which has been publicly supported by multiple prominent legal organizations and scholars, is to remove the Immigration Court from the Justice Department and afford it with the true independence it needs and deserves. It is long past time to vest U.S. Immigration Judges – like our counterparts in U.S. tax and bankruptcy courts – with full judicial independence under Article 1 of the U.S. Constitution.
We are available at your convenience to discuss these critical issues. Sincerely,
Hon. Ashley Tabaddor
President, National Association of Immigration Judges
2

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Wow! Trump is taking “Aimless Docket Reshuffling” — the REAL primary cause of the unmanageable court backlog — to new heights.

And, Judge Tabaddor isn’t even counting the 300,000 or so already closed cases that EOIR Director McHenry includes in his backlog count (undoubtedly on orders from his DOJ “handlers”)!

Nor does she include more than 300,000 Central Americans and Haitians that the Administration is mindlessly (and perhaps illegally) trying to boot out of their current status. Of course, the vast majority of the TPSers would have strong claims for “Cancellation of Removal.” So, in truth, they are not going anywhere except into the Court’s backlog. Trump will be long gone before the Immigration Courts even get to,the first of those cases!

Running hearings without in person interpreters! That’s almost a prima facie Due Process violation. I can virtually guarantee that it will result in many inadequate or disputed translations, meaning remands by the BIA and the Article IIIs for “redos.” Haste makes waste!

What if we actually invested in a system that “does Due Process right” the first time around? Certainly, it would make the system fairer and more efficient. It wouldn’t cost $5.7 billion either. Indeed some of that money could be spent on providing universal representation for asylum seekers. Or how about a functioning e-filing system which almost all other high volume courts in America also have?

Could it get any dumber than Trump shutting down the Immigration Courts, essential to immigration administration and enforcement, over immigration enforcement? No, it couldn’t!

PWS

01-12-19

EYORE FIDDLES WITH DOCKET AS ROME BURNS – Latest Bureaucratic Gobbledygook From Falls Church Shows Why EOIR Must Be Abolished & Replaced By An Independent Court, Run By Sitting Judges, With Professional, Apolitical Administration!

https://www.justice.gov/eoir/page/file/1112036/download

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So, let’s see what’s really going on here, beneath all of the “Tower bureaucratese.”

Bureaucrats at Falls Church “Headquarters,” who are beholden to DOJ politicos, are setting the local Immigration Court docket priorities to the exclusion of sitting Immigration Judges, Respondents’ Counsel, NGOs and the members of the public who actually use the system;
But one party, the DHS, is effectively being given unilateral authority to establish the Immigration Courts’ “docket priorities;”
DHS also unilaterally decides which cases will be designated as “family units” and therefore “prioritized;”
EOIR notes that the prioritization of certain “aliens with children” cases between 2014 and 2017, also at the behest of DHS, was a MASSIVE failure that actually decreased productivity and significantly accelerated the backlog (what I refer to as “Aimless Docket Reshuffling”);
Nevertheless, EOIR inexplicably decides to “double down” on a known failure just because their “partners” (Sessions’s term) at DHS essentially have ordered them to do so;
Why “Baltimore, but not Arlington;” “San Francisco, but not San Diego,” “Denver, but not Dallas,” etc.?
“EOIR remains committed to the timely completion of all cases consistent with due process” — Really?
- Lead by enforcement guru Jeff Sessions and DHS, the Trump Administration has intentionally “artificially jacked” the “backlog” to over 1.1 million cases;
- If the approximately 350 currently authorized Immigration Judges were all on board and each met their 700 case “quota,” the Immigration Court could complete only about 250,000 cases per year;
- If no additional cases were filed, and none of the judges left, the pending cases wouldn’t be completed until the latter half of 2023;
- But of course, under the Trump Administration’s mismanaged and totally undisciplined enforcement program, new cases will be piled into the system without regard to its capacity and judges will continue to burn out and leave;
- So, effectively, there is no cogent program for getting the backlog under control — ever;
What’s missing from this bureaucratic never-never land is any sense of fairness, competence, or meaningful participation by those most affected by the backlogs and “Aimless Docket Reshuffling” and who possess the most expertise at arranging dockets for fairness and efficiency: sitting Immigration Judges, Respondent’s Counsel, NGOs, and respondents themselves (along, of course, with the ICE Chief Counsel unencumbered by the “DHS Enforcement Wackos“);
Also glaringly absent: any requirement that the DHS justify their requests to prioritize the dockets or exercise any responsible “prosecutorial discretion” to take “lower priority ” cases off the dockets;
A “no-brainer” in a functioning independent court system would be requiring DHS to remove one (or more) “low priority” cases for each case they wish the court to “prioritize” or otherwise move ahead of other, older pending cases.

The rapidly failing and unfair system needs aggressive oversight and monitoring — from Congress (read the House) and the Article III Courts!

Ultimately, it will continue its “death spiral” until both the EOIR bureaucracy and the Administration politicos who abuse it are permanently removed from the equation and an independent court, run by sitting judges with assistance from other court management professionals with meaningful public input is established. A strong, independent, efficient, unbiased U.S. Immigration Court will also help ICE carry out its law enforcement mission in a professional, legal, non-discriminatory, de-politicized, and humane manner, perhaps bringing enough rationality to the system to save that beleaguered agency from its critics.

PWS

11-18-18

DUE PROCESS MOCKED, COURT SYSTEM IN CHAOS! — NAIJ President A. Ashley Tabaddor Speaks Out Against Sessions’s Bias & Politicization Of U.S. Immigration Courts!

https://www.voanews.com/a/immigration-judges-say-new-quotas-undermine-independence/4582640.html

From VOA News:

Immigration Judges Say New Quotas Undermine Independence

WASHINGTON —

The nation’s immigration court judges are anxious and stressed by a quota system implemented by Attorney General Jeff Sessions that pushes them to close 700 cases per year as a way to get rid of an immense backlog, the head of the judges’ union said Friday.

It means judges would have an average of about 2½ hours to complete cases — an impossible ask for complicated asylum matters that can include hundreds of pages of documents and hours of testimony, Judge Ashley Tabaddor said.

“This is an unprecedented act, which compromises the integrity of the court and undermines the decisional independence of immigration judges,” she said in a speech at the National Press Club, in her capacity as head of the union. Tabaddor said the backlog of 750,000 cases was created in part by government bureaucracy and a neglected immigration court system.

“Now, the same backlog is being used as a political tool to advance the current law enforcement policies,” she said.

Signature issue

Curbing immigration is a signature issue for the Trump administration, and the jobs of the nation’s more than 300 immigration judges are in the spotlight.

They decide whether someone has a legal basis to remain in the country while the government tries to deport them, including those seeking asylum. Tabaddor presides in Los Angeles, where she oversees 2,000 cases, including many involving juveniles.

The judges are employees of the Justice Department’s Executive Office for Immigration Review, which is overseen by the attorney general — unlike the criminal and civil justice systems where judges operate independently.

Immigration court judges have repeatedly asked for independence, and Tabaddor brought it up again Friday, calling the current structure a serious design flaw.

A Justice Department spokesman said the union has repeatedly tried to block common-sense reforms that would make the judges’ jobs better, and that the proper home for the courts is where they are right now, under DOJ.

FILE – The Arlington Immigration Court building in Arlington, Virginia. The courtrooms inside are plain, and cases are dispatched quickly, each one settled in five to 10 minutes. (A. Barros/VOA)

Earlier this year, the Justice Department sent a memo to immigration judges telling them they would need to clear at least 700 cases a year in order to receive a “satisfactory” rating on their performance evaluations. Sessions has pushed for faster rulings and issued a directive that prevents judges from administratively closing cases in an effort to decrease the backlog by 50 percent by 2020.

This month, he appointed 44 new judges, the largest class of immigration judges in U.S. history, and has pledged to hire more. He said in a speech to the judges that he wouldn’t apologize for asking them to perform “at a high level, efficiently and effectively.”

Tabaddor wouldn’t say whether the quotas were also putting pressure on judges to deport more people — not just decide cases faster.

“There’s certainly no question they’re under pressure to complete more cases faster,” she said. “I think I would just say listen to the attorney general’s remarks and you can decide what messaging is going to be sent.”

Asylum qualifications

Earlier this summer, Sessions tightened the restrictions on the types of cases that can qualify someone for asylum, making it harder for Central Americans who say they’re fleeing the threat of gangs, drug smugglers or domestic violence to pass even the first hurdle for securing U.S. protection.

Immigration lawyers say that’s meant more asylum seekers failing interviews with U.S. Citizenship and Immigration Services to establish credible fear of harm in their home countries. They also say that immigration judges are overwhelmingly signing off on those recommendations during appeals, effectively ending what could have been a yearslong asylum process almost before it’s begun.

President Donald Trump hasn’t been behind the move to bolster the roster of judges. “We shouldn’t be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice,” he said in a tweet in June, referring to Immigration and Customs Enforcement.

Watch the C-Span replay here:

https://archive.org/details/CSPAN2_20180921_170200_Federal_Immigration_Judge_Discusses_Court_System

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We need an Article I independent US Immigration Court now!

Congress seems to be tied up in knots. Will the Article IIIs step up and begin enforcing the Due Process clause of the Constitution?

The solutions — remand every case for a new hearing in which: 1) Jeff Sessions shall not be involved, and 2) all precedents issued by Jeff Sessions are considered null and void. Jeff Sessions shall, however, be allowed to appear and make arguments as the attorney for DHS.

The Immigration Court System is collapsing. The lives of hundreds of thousands are at risk. We need less talk and more action to enforce Due Process!

Some historical perspective: EOIR once illegally tried to bar Judge Tabaddor from hearing Iranian cases because she attended a reception with other prominent Iranian Americans! Compare that the with the overt, unethical anti-immigrant bias that Jeff Sessions spews out on a regular basis. His bias affects justice for every respondent appearing in Immigration Court.

Is 21st Century America going to permit “political show trials” every day in Immigration Court?

PWS

09-24-18

ABA PRESIDENT BOB CARLSON MAKES STRONG STATEMENT RECOGNIZING ESSENTIAL ROLE OF ATTORNEYS IN IMMIGRATOIN PROCESS, REBUTTING SESSIONS’S FALSE ATTACKS, AND ENDORSING AN ARTICLE I COURT!

Statement of ABA President Bob Carlson
Re: Immigration lawyers and judges

WASHINGTON, Sept. 11, 2018 — The American Bar Association applauds the work of lawyers who help assure fairness and due process in our nation’s immigration courts. During a visit last month to the border in Texas, I was very impressed by their hard work in difficult circumstances. Our Constitution guarantees certain rights to all people in the United States, including men, women and children who come here to escape lawlessness and violence in their home countries.

The ABA strongly supports the independence of immigration judges and immigration courts. These courts should not be subordinate to any executive branch agency, including the Justice Department. Instead, we support the creation of truly independent immigration courts and judges under Article I of the U.S. Constitution. Such an arrangement would remove any perception that politics can play a role in dispensing justice with matters of immigration.

Our American democracy rests upon the rule of law – and the rule of law rests upon the work of impartial, independent judges, as well as knowledgeable, hard-working lawyers, including immigration attorneys who pursue justice, both for the government and for immigrants who seek asylum.

With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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

Thanks to my good friend and colleague Judge Joan Churchill for alerting me to this item. Joan has been doing some great work in behalf of the Article I Immigration Court through the Immigration Committee of the ABA’s National Conference of the Administrative Law Judiciary. I just joined that Committee at her urging, and encourage all of my colleagues — retired and active — to do the same. Let Joan or me know if you would like information on how to join.

PWS

09-17-17

INSIDE EOIR: RESIGNING EMPLOYEE GIVES INSIGHTS INTO WHY EOIR IS FAILING UNDER SESSIONS AND HOW TO FIX IT: “I haven’t heard one single Civil Servant who thinks that the imposition of quotas on the Immigration Judges is a good idea. On the other hand, many Civil Servants—if only they had a meaningful chance to be heard—have excellent ideas that, if implemented, would improve efficiency without violating due process. It’s not too late to prevent being on the wrong side of history.”

Good evening,

As some of you may know, today is my last day at EOIR. I just want to thank everyone at the court for your friendship and a very rewarding and fruitful time, I will certainly miss you.

I’d like to share a few thoughts before bidding farewell.

To the Civil Servants (IJs, AAs, Legal Assistants, Interpreters, Administrators, etc.): I commend you for choosing to serve your country.I have only the greatest respect for each and everyone of you, and there is not a doubt in my mind that your heart is in the right place. I just want to remind you that before being government employees, you are Citizens of the United States of America: the most extraordinary country in world’s history. That as Civil Servants, you don’t work only for the administration in power—as administrations change, but most of you remain, having chosen to dedicate your lives to serve your country.Instead, you work for “the People.” That you have a voice and your opinion matters, this is your country too.So when an administration plans to do something you suspect is wrong or unconstitutional you can, and should, ask questions.You are the backbone of our government, and for some people you are the only face of the government they’ll ever see. Finally, you’re not alone in this. Talk to each other, you’d be surprised to discover how many others share your same concerns. So organize, share thoughts and ideas, because with unity comes strength.

If Civil Servants are so great why are you leaving then, you may ask? Like you, I take pride in the work I do, and I consider serving my country as the highest form of secular calling, and a way to give back to this country that has been so generous to me.At the same time, we are the results of our experiences.I was born and raised in XXXX, a great country in many respects, but also the country that bears an indelible and shameful scar—the birth and spreading of fascism.An ideology that, through its different permutations, almost brought the world as we know it to an end. Sadly, history has taught me that good countries do bad things—sometimes indescribably atrocious things.So I have very little tolerance for authoritarianism, extremism, and unilateral and undemocratic usurpations of Constitutional rights. I believe that DOJ-EOIR’s plan to implement individual annual numerical performance measures—i.e., quotas—on Immigration Judges violates the Due Process clause of the Fifth Amendment of the United States Constitution, and the DOJ’s own mission to “ensure the fair and impartial administration of justice.”This is not the job I signed up for. I strongly believe in the positive value of government, and that the legitimacy of our agency—and any other governmental institution for that matter—is given by “the People’s” belief in its integrity, fairness, and commitment to serve “the People.” But when the government, with its unparalleled might and coercive force, infringes on constitutionally enshrined rights, I only have two choices: (1) to become complicitous in what I believe is a flagrant constitutional violation, or (2) to resign and to hold the government accountable as a private citizen. I choose to resign because I cannot in good conscience continue serving my country within EOIR.[1]

To the Political Appointees: Civil Servants are not part of the problem, they are part of the solution.They are not mercenaries or hired guns paid to merely execute orders, they are United States Citizens and they care about their country as much as you do. So talk to them, engage with them and come up with synergetic plans and solutions. Civil Servants have invaluable insight on what kind of processes and improvements can be implemented because they experience the problems in these processes on a daily basis. And it is also no secret that cooperation and dialogue lead to improved morale. So engaging with Civil Servants is clearly a win-win. Finally, for what it’s worth, I haven’t heard one single Civil Servant who thinks that the imposition of quotas on the Immigration Judges is a good idea. On the other hand, many Civil Servants—if only they had a meaningful chance to be heard—have excellent ideas that, if implemented, would improve efficiency without violating due process.It’s not too late to prevent being on the wrong side of history.[2]

Thank you for your time. I wish you all the best.

[1] Omitted.

[2] Before becoming the United States of America, this land served as refuge for the social outcast, who fled the persecution and the rejection of their native countries in search for survival and a fresh start in life. Their descendants declared independence and founded the United States of America. They too had experienced what an oppressive government does to “the People,” so they created a system of government that included checks and balances—with “separation of powers” paramount among them—to prevent tyranny. A renowned application of separation of powers provides that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” United States v. Carolene Prod. Co., 304 U.S. 144, 153 n. 4 (1938) (emphases added). So while it is probably true that no other country offers trials and judges to immigrants, this is in fact an unmitigated positive, as the greatness of a civilization is measured by how it treats its weakest.This is also what makes America special: the Rule of Law is sovereign upon everyone.

[“REDACTED” VERSION PUBLISHED WITH PERMISSION]

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

Pretty easy to see why Due Process is failing in our Immigration Courts. Short answer: It’s not a priority for the politicos in the DOJ who pull the strings. Actually, Due Process has become an anathema for Sessions and his White Nationalist cabal.

What kind of “court system” would impose arbitrary “performance quotas,” developed by non-judicial officials responding to political pressure over the objections of and without even consulting the Immigration Judges who actually are doing the work? Loss of control over dockets, scheduling, and policies affecting court procedures is a major problem in this system. In the past, it has led to the travesty of “Aimless Docket Reshuffling” (“ADR”).

Now, a blatantly biased, anti-asylum, anti-immigrant, anti Due Process agenda has been added to the totally out of control ADR.

That’s why the key to restoring a functioning Immigration Court System is 1) an independent, Article I Court outside of Executive control; and 2) professional court administration controlled by and responsible to the JUDGES who actually decide the cases, rather than to politicos in Washington.

Like the writer of the above message, I believe that there are lots of good ideas on how to improve the system and restore Due Process within the judiciary that are being suppressed. Additionally, the judges should be working with respondents’ counsel, NGOs, the Article III Courts, Court Administrators, and the DHS Chief Counsel to develop systems that serve everyone’s needs and capabilities.

That would be an essential improvement over the present system which is being run by Sessions and his cronies solely for the benefit of one party: DHS Enforcement. How would YOU like to appear before a judge who essentially is working for the opposing party? Not fair, right? But, that’s exactly what today’s Immigraton Court system is! And, that’s why it’s failing our country.

We need an independent Article I U.S. Immigration Court that operates with Due Process as its one and only mission. Until that happens, all of our Constitutional rights will be in jeopardy. Because, as the writer above perceptively states, “the greatness of a civilization is measured by how it treats its weakest.” Harm to one is harm to all!

Thanks again to the writer of he above message for agreeing to share!

PWS

08-03-18

GOOD NEWS FROM THE U.S. IMMIGRATION COURT IN ARLINGTON, VA BY TAL @ CNN: U.S. IMMIGRATION JUDGE JOHN MILO BRYANT SHOWS CONGRESS, PUBLIC, PRESS HOW IMMIGRATION COURT COULD & SHOULD WORK IF JEFF SESSIONS & THE DOJ WERE REMOVED FROM THE PICTURE & THE JUDGES WERE INDEPENDENT RATHER THAN BEING UNETHICALLY TOLD BY SESSIONS THAT THEY ARE “PARTNERS WITH DHS!”

The Wonderful Tal Kopan of CNN

Judge Roger Harris, Me, Judge Thomas Snow, & Judge John Milo Bryant (“The Non-Conformist”) head out to lunch on my last day at the Arlington Immigration Court, June 30, 2016

http://www.cnn.com/2018/06/28/politics/immigration-court-hearings/index.html

‘Just be a kid, OK?’: Inside children’s immigration hearings

By: Tal Kopan, CNN

As each immigrant child took their seat in his courtroom for their hearing, Judge John M. Bryant started the same way.

“How are you doing today?” he’d ask.

“Muy bien,” most would answer.

In a span of about 45 minutes, Bryant — an immigration judge in Arlington, Virginia — checked in on the cases of 16 immigrants under the age of 20, all with attorneys and some with parents.

The day was known as a “master calendar hearing” — a swift introduction in court and the beginning of court proceedings for immigrants facing deportation.

The children had largely been in the country for some time, each fighting in court for the right to stay.

But though the immigration courts have long dealt with immigrant children, even those barely school age or younger, their turn through the unique, stand-alone immigration courts is getting new attention as the government’s “zero tolerance” border policy has sent thousands more children into the system without their parents.

The hearings were observed by six Democratic members of Congress: Whip Steny Hoyer of Maryland; Rep. Don Beyer, whose Virginia district includes the court; Congressional Hispanic Caucus Chairwoman Rep. Michelle Lujan Grisham of New Mexico; and Reps. Pete Aguilar, Nanette Diaz Barragán and Norma Torres, all of California.

At a news conference afterward, Beyer called the session “One of the best-case scenarios of a master calendar hearing, a sympathetic judge with kids with lawyers.”

The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.

“We know that in vast numbers of cases, there is not proper representation,” Hoyer said, adding that some kids are “not old enough to spell their own names, let alone represent themselves in court.”

In each case, the attorneys described waiting for applications filed with the government, and all were quickly given court dates into 2019 to come back for another check-in. One, a boy named José who had just finished ninth grade, was there for his second check-in and for his full asylum hearing received a court date of May 11, 2021 — likely to be just as he is finishing high school in the US.

The youngest was a 6-year-old boy, Rodolfo, who was there with his attorney and father, though Rodolfo’s case was being heard by itself. As he did with most of the children, Bryant asked Rodolfo if he was in school, translated by an interpreter via headphones provided to every immigrant facing the court.

“Hoy?” Rodolfo asked, confused — “Today?”

Bryant cheerfully prompted Rodolfo about what grade he had finished — kindergarten — and his teacher’s name — Ms. Dani. Bryant said he still remembered his own kindergarten teacher, Ms. Sweeney, from many years prior. “Hasta luego,” Bryant told Rodolfo, giving him a next court date of May 30, 2019.

While all the children in Bryant’s courtroom on this afternoon had attorneys, the Arlington Immigration Court is not typical of the country, where closer to 1-in-3 children are represented in court. Bryant was also generous with the continuances requested by attorneys as they waited to hear from the government on applications for other visas for the children, despite uniform opposition by the government attorney in court.

“Mr. Wagner, your turn,” Bryant joked at one point to the government attorney present, who dutifully recited the government’s opposition to granting continuances solely on the basis of waiting to hear back on a visa application. Bryant than immediately picked a day on his calendar for the immigrant and attorney to return.

One attorney for a 12-year-old girl, Rosemary, who was there with her mother, said they had applied for a Special Immigrant Juvenile visa, which is for minors who have been abused, abandoned or neglected by a parent. Bryant asked the attorney if the application was before a “sweet or sour judge.”

“I think it’s going to be a problem. It may have to be appealed,” the attorney replied.

The judge granted them a court date on February 28 of next year.

“Have a nice summer,” he said to the girl. “Just be a kid, OK?”

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

“The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.” And, with very good reason!

No trace of the Jeff Sessions’s paranoia, xenophobia, bias, child abuse, and de-humanization of migrants here. It’s like one would expect a “real” U.S. Court to be run! Sadly, that’s not what’s happening in the rest of the country. Just ask folks in Charlotte, Atlanta, Stewart, Ga., or Houston how they are treated by Immigration Judges. It’s ugly, abusive, well documented, highly inappropriate, and needs to end!

Even more outrageously, rather than building on and replicating successful judicial models like Arlington, Sessions has actually adopted some of the worst imaginable “judicial” practices, encouraged bias, and has actually endorsed and empowered the actions of some of the most clearly biased and anti-immigrant, anti-asylum Immigraton Judges in the system. It’s a simply unacceptable waste of taxpayer money and abuse of our legal system by someone incapable of fulfilling his oath of office.

Imagine, with judges actually in control, lawyers for the respondents, time to prepare and file applications, empathy, courtesy, knowledge, kindness, concern for fairness, efficiency, and giving ICE’s obstructionist “rote objections” and other dilatory tactics encouraged and enabled by this Administration exactly the short shrift they so richly deserve, the U.S. Immigration Courts could potentially fulfill their original vision of “becoming the world’s best tribunals, guaranteeing fairness and due process for all.”

And, ICE could be once again required to function in the same highly-professional, courteous, collegial, respectful, and helpful manner that they did in Arlington during the last Administration. It’s disgraceful that rudeness and unfairness have become the norm under Trump. Things like that used to get even Government lawyers fired, disbarred, or disciplined. Now they appear to win kudos.

And, having dockets run by experienced judicial professionals like Judge Bryant with the help of professional staff responsible to him and his colleagues would promote fairness, quality, and efficiency over the “Amateur Night at the Bijou” atmosphere created by a biased, politicized, and totally incompetent Department of Justice and carried out by agency bureaucrats who aren’t judges themselves and are not qualified to administer a major court system.

Why not design a system “built for success” rather one that is built for failure and constant crisis? A well-functioning court system where “Due Process and Quality Are Job One” and which serves as a “level playing field” would actually help DHS Enforcement as well as the immigrants whose lives depend upon it. Fairness and Due Process are good for everyone. It’s also what our Constitution requires! Play the game fairly and professionally and let the chips fall where they may, rather than trying to “game the system” to tilt everything toward enforcement.

But, it’s not going to happen until either 1) Congress creates an independent U.S. Immigration Court, or 2) the Article III Courts finally step up to the plate, put an end to this travesty, remove the DOJ from its totally improper and unethical supervisory role, and place the Immigration Courts under a court-appointed “Special Master” to manage them with the goal of Due Process and judicial efficiency until Congress reorganizes them outside of the Executive Branch! Otherwise, the Article IIIs will have to do the job that Sessions won’t let the Immigration Courts perform!

Compare Judge Bryant’s professional performance with the “judicial meat processing plant/Due Process Denial Factory” being operated by U.S. Magistrate Judge Peter Ormsby on the Southern Border as described by Karen Tumulty of the Washington Post in my post from yesterday:

http://immigrationcourtside.com/2018/06/28/karen-tumulty-washpost-assembly-line-justice-is-already-the-norm-in-u-s-district-courts-at-the-border-as-go-along-to-get-along-u-s-magistrate-convicts-bewilder/

Who is the “real” judge here? It doesn’t take a “rocket scientist” to answer that one! Just some judges with the backbone, courage, and integrity not to “go along to get along” with Sessions’s assault on the integrity and independence of our justice system.

PWS

06-30-18

SARA RAMEY @ THE HILL: To Achieve Justice, We Must Get The U.S. Immigration Courts Out Of The Department Of Justice!

http://thehill.com/opinion/immigration/388876-doj-shouldnt-be-in-charge-of-immigration-courts

On April 18 the Senate Committee on the Judiciary held a hearing on strengthening the Immigration Court system. Several organizations, including the American Bar Association and the American Immigration Lawyers Association, recommended that Congress make the immigration courts independent courts under Article I of the Constitution. Congress should do so without delay, especially in light of the attorney general’s May 17 decision in Matter of Castro-Tum eliminating administrative closure.

People on both sides of the political divide agree that the immigration courts are overburdened. The approximately 350 immigration judges who work in about 60 courts around the country are currently tasked with reviewing close to 700,000 cases. The Trump administration has made several, mostly misguided, attempts to fix this backlog. However, as Former Chairman of the BIA Paul Schmidt stated recently ‘‘Nobody… can fix this system while it remains under the control of DOJ.’’

Because the immigration courts, along with the Board of Immigration Appeals, are currently part of the Department of Justice, the attorney general, and others in the executive, not least of all the president, are in charge of agency regulations, case procedures, the hiring and firing of judges, and decision-making.

In recent months the administration has made unprecedented attacks on the judicial independence of immigration judges, including policy changes that are in direct contradiction to the recommendations of an April 2017 Booz Allen Hamilton report commissioned by the Department of Justice.

On March 30 the administration instituted a case completion quota of 700 a year for a “satisfactory” performance rating. This amounts to each Immigration Judge needing to complete on average three cases every working day. For judges who have dockets with a high number of asylum cases, for example, this arbitrary requirement will push them to expedite cases in ways that are extremely dangerous to due process.

As the president of the National Association of Immigration Judges, Judge Tabaddor, testified at the congressional hearing, there has been ‘‘no quota ever, in any court; somehow implicit in [designating a quota] is that judges are not doing enough… [However, w]e should focus on [is] how we can support our judges.’’

Over the last six years I have directly or indirectly litigated over a hundred asylum cases, and in 95 percent of the cases the hearing takes about 3.5 hours, or the equivalent of one working morning or afternoon. This does not include the time a judge needs in camera to review the hundreds of pages of evidence in the record. In reality, a judge who completes one asylum case a day, and not three, is already extremely efficient.

The real problem is not with how hard-working the immigration judges are. As I explained in a 2016 article, part of the problem lies with understaffing. Instead of hiring a reasonable number of judges and law clerks, and otherwise investing in supporting the work of our Immigration Judges, the Administration is eliminating administrative closure and calling for administratively closed cases to be put back on the docket, actions that only serve to raise the number of pending cases.

If, for example, the Department of Justice puts all the administratively closed cases back on the docket, it would increase the court backlog to over 1,000,000. These are cases of crime victims and DACA recipients and others where an immigration judge has already determined that it would not be a good use of judicial resources, or in the public interest, to litigate, usually because the person is eligible for some non-judicial form of immigration relief and has a case pending with USCIS. Re-calendaring these cases would not only unnecessarily increase the work of taxpayer-funded DHS Trial Attorneys but it would add more pressure to the already overworked immigration judges.

The attorney general has also stepped into managing the immigration courts by restricting the use of continuances, which in the fast-paced detention context where my organization works are often necessary in order to have time to obtain crucial pieces of evidence and otherwise prepare for trial.

While the attorney general is the boss and is responsible for the judges’ performance, he should have a little more faith in the good judgement of his immigration judges, who, unlike the attorney general, are looking at the situation-specific issues in the individual case before them.

While the helpfulness of the attorney general’s methods for carrying out his job are questionable at best, the underlying problem remains that, regardless of our political opinion on the administration’s policies, those policies are affecting the judicial independence of our immigration courts and putting due process in jeopardy.

What the attorney general says matters to the immigration judges working under him. In one recent case, the immigration judge cited him as saying there is a lot of fraud in the asylum process as evidence that the asylum seeker was lying. Not only was the attorney general’s statement not based on facts — at least not on facts made publicly available, or that anyone even claimed exist, and which statement runs in stark contrast to my six years of on-the-ground experience — but that statement had nothing to do with the truthfulness of the individual asylum seeker present before the court.

Additionally, as stated by the former president of the National Association of Immigration Judges Dana Marks, there is a ‘‘conflict of interest between the judicial and prosecutorial functions [of the Department of Justice that] creates a significant (and perhaps even fatal) flaw to the immigration court structure.’’

It appears that the administration is looking for specific outcomes in cases with little regard to the merits of the claim. The attorney general has certified an unprecedented number cases to himself for review with the idea that he might change the decision of the Board of Immigration Appeals. This extraordinary power of one political-appointee to overturn the decision of trained immigration judges is fundamentally at odds with judicial independence.

Unfortunately, it appears that not only the review and firing of judges has become political, but their hiring too. Information has surfaced that the Department of Justice is asking candidates questions about their political party affiliation, their position on same-sex relationships, and their opinion on abortion; preparing internal memos on those whose immigration views that do not align with the administration’s policies; slowing down review of applications where there are ideological differences; and withdrawing employment offers or delaying start dates by up to a one and a half years.

Making judicial decisions subject to the political whims of the times, and not dependent on the accurate execution of the law, is a serious risk to the checks-and-balances system underlying our democracy. The need for independent immigration courts has never been clearer.

Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization.

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

As this article shows, inappropriate anti-asylum statements and knowingly false narratives from Jeff Sessions do affect the fairness of results. Yes, there are many courageous judges in the system who continue to treat respondents fairly and grant relief in appropriate cases.

But, numerous reports have established that there are Immigration Judges with anti-asylum and anti-migrant biases similar to Sessions’s. They now feel “empowered” to ignore the law, fairness, and Due Process to deny most applications and remove more migrants.

Moreover, some of the more experienced judges are retirement eligible and therefore largely immune from Sessions’s power because they are immediately eligible to retire. But, as they grow frustrated with the Aimless Docket Reshuffling and growing backlogs created by this Administration’s irresponsible actions and retire, they will be replaced by inexperienced judges. These new judges, in addition to being hand-picked by Sessions, without public input, are subject to removal at will during a two-year “probationary period.” Therefore, new judges are more likely to be influenced by Sessions’s xenophobic, anti-Due-Process views.

Additionally, Sessions is hard at work misusing his “certification” authority to overturn or limit established interpretations and procedures that implement protection and further Due Process and fairness for migrants.

Another important part of Sara’s article — giving lie to the concept that Immigration Judges can complete more than tow “full merits” asylum hearings per day consistent with Due Process.

Over the last six years I have directly or indirectly litigated over a hundred asylum cases, and in 95 percent of the cases the hearing takes about 3.5 hours, or the equivalent of one working morning or afternoon. This does not include the time a judge needs in camera to review the hundreds of pages of evidence in the record. In reality, a judge who completes one asylum case a day, and not three, is already extremely efficient.

Given the tendency of the current Administration not to settle or otherwise reasonably negotiate Immigration Court cases, the number of “full merits” hearings and appeals is likely to increase dramatically, thus adding to the already overwhelming backlog!

Time to end this farce!

PWS

05-24-17

PUBLIC INVITED TO ABA COMMISSION ON IMMIGRATION PANEL ON US IMMIGRATION COURT REFORM: FRIDAY, MAY 4, 2018 9:00 AM – 10:30 AM

final_may_4_program_flyer.authcheckdam

Featured Panelists:

(Ret.) Immigration Judge Paul Schmidt, Adjunct Professor of Law, Georgetown University Law

Center Heidi Altman, Policy Director, National Immigration Justice Center James R. McHenry, Director, Executive Office for Immigration Review Judge Denise Slavin, President Emeritus, National Association of Immigration Judges

James R. McHenry, Director, Executive Office for Immigration Review

Judge Denise Slavin, President Emeritus, National Association of Immigration Judges

Karen Grisez, Special Advisor to the ABA Commission on Immigration; Public Service Counsel, Fried Frank LLP

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

This event is FREE & OPEN TO ALL. I believe there will be a “public comment” opportunity. So, this is your chance to weigh in on the US Immigration Court “Train Wreck” and the Attorney General’s recent actions!🚂🚂🚂🚂🚂🚂🚂🚂🚂

Seating might be limited, and I would expect interest to be high. So, I strongly recommend arriving early!

PWS

04-25-18

ELIZABETH J. (“BETTY”) STEVENS IN “THE FEDERAL LAWYER” (FBA) – Why We Need An Article I Immigration Court Now! — “A close read of the GAO’s report provides a chilling window into a system in chaos.”

http://www.fedbar.org/Publications/The-Federal-Lawyer/Columns/Immigration-Law-Update.aspx?FT=.pdf

Recently, the White House announced that it sought to reduce the current immigration court backlog by requesting appropriations for additional immigration judges and instituting performance metrics for all immigration judges.1 Sen. Claire McCaskill and Reps. Jim Sensenbrenner, Zoe Lofgren, and Trey Gowdy asked the General Accountability Office (GAO) the following questions: 1. What do Executive Office for Immigration Review (EOIR) data indicate about its caseload, including the backlog of cases, and potential contributing factors and effects of the backlog according to stakeholders? 2. How does EOIR manage and oversee immigration court operations, including workforce planning, hiring, and technology utilization? 3. To what extent has EOIR assessed immigration court performance, including analyzing relevant information, such as data on case continuances? 4. What scenarios have been proposed for restructuring EOIR’s immigration court system and what reasons have been offered for or against these proposals?2

A close read of the GAO’s report provides a chilling window into a system in chaos.

. . . .

Moving the immigration courts out of the executive branch
would help alleviate the perception that they are not independent tribunals with DHS and the respondents as equal participants. This would also cure the perception that the immigration courts have become so politicized that decisions change not with the law but with the politics of the current administration. Moreover, due to
the number of immigration judges who are former DHS attorneys and the co-location of some immigration courts with Immigration and Customs Enforcement offices, a broad perception exists that immigration judges and DHS attorneys are working together. This perception leads to significant lapses in perceived due process; for example, individuals don’t appear because they think the system is rigged, don’t appeal a bad decision because they lack resources after the long wait for a merits hearing, or don’t pursue potential relief for which they might be eligible. Plus, such a move would allow DHS the opportunity to appeal the Article I appellate division’s decisions to the circuit courts of appeals—providing those courts with a broader, more balanced view of issues and decisions of the trial-level immigration court.21 EOIR’s FY 2016 Statistics Yearbook indicates that one quarter of the initial cases decided were grants—none of which were ever reviewed by the courts of appeals.22

With a move to an Article I court, both trial level and appellate di- vision judges would have fixed terms of office and tenure protections that would facilitate judicial decisions without fear or favor. (If one believes that current members of the Board of Immigration Appeals are truly independent, one should research the “streamlining” of
the board down to just 11 members.23) Current board members and immigration judges are arguably government attorneys with the same client as DHS attorneys.24 They are subject to case completion goals—with or without express reliance on numerical goals—and may be subject to discipline by the attorney general.25 The currently proposed performance metrics are not new—most have been in place in one form or another since 2002.26

Last but not least, removing the immigration courts from the Department of Justice should speed the courts’ ability to regulate itself. First and foremost, the individual immigration judges would have control over their dockets and not be subject to decisions by headquarters to prioritize case A over case B (and then back again)—or send trial judges off to border courts to handle a few cases when their backlogged dockets have to be re-scheduled.27 The Article I court as a whole would be able to issue rules and regulations without the current byzantine requirements for consultation with a number of different offices and agencies. And, finally, hiring an immigration trial judge would not take two years.28

Other options exist; all have flaws. None of the options will single-handedly fix the backlog. We all have strong opinions about whether our nation’s immigration laws need a complete overhaul or a quick x—and how to go about either or both—but as we look to implement changes in our current immigration system, we must also aspire to lift the immigration courts from “halfway there” not-quite- courts to true Article I courts. 

[Text of Footnotes Omitted]

Elizabeth J. Stevens is
the chair of the Federal
Bar Association’s Immi-
gration Law Section.

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

Read Betty’s highly cogent and incisive full article in The Federal Lawyer at the link! You’ll also be able to get all of Betty’s terrifically informative footnotes.

Betty is not just “any” lawyer. In addition to being the head of the FBA’s highly regarded and very active Immigration Law Section, Betty’s distinguished career in the Department of Justice has touched on all aspects of the Immigration Court practice.

While in law school at George Mason, Betty interned at the Board of Immigration Appeals during my tenure there. When I arrived at the Arlington Immigration Court, Betty was serving as the sole Judicial Law Clerk for all six Immigration Judges.

Betty then began a distinguished career at the Office of Immigration Litigation (“OIL”) where her primary job was to defend the orders of the Board of Immigration Appeals. She had a meteoric rise through the ranks of OIL, culminating in position as a Senior Supervisor and a trainer of newer OIL attorneys.

I well remember Betty shepherding numberous groups from OIL over to the Arlington Court to introduce them to immigration litigation at the “retail level of our justice system.” Since her retirement from Federal Service, Betty has been an energetic, well-informed, and steadfast voice for better legal education of attorneys on both sides practicing immigration law and for Immigration Court and BIA reform.

“Chilling” is exactly the right word to describe the utter chaos in our U.S. Immigration Courts today, as the backlog approaches 700,000 cases with no end in sight. It’s “chilling” to the individual Constitutional rights of all Americans, as well as “chilling” as to the fantastic degree of “malicious incompetence” of the DOJ’s pathetic attempt to administer the Immigration Courts under Jeff Sessions.

Betty is someone who has “looked at life from both sides now!” When Betty Stevens says the system is broken and “in chaos,” you’d better believe it’s true! Thanks again Betty for all you do! It’s an honor and a privilege to work with you on the “Due Process Team.”

PWS

04-01-18

AILA URGES CONGRESS TO CREATE INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT TO REPLACE CURRENT DUE PROCESS TRAVESTY! – “In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.”

RESOLUTION ON IMMIGRATION COURT REFORM AILA Board of Governors Winter 2018

PROPONENT: AILA Executive Committee and AILA EOIR Liaison Committee

Introduction:

Our immigration court system does not meet the standards which justice demands. Chronic and systemic 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. As a component of the Department of Justice (DOJ), EOIR has been particularly vulnerable to political pressure. Immigration judges, who are currently appointed by the Attorney General and are DOJ employees, have struggled to maintain independence in their decision making. In certain jurisdictions, the immigration court practices and adjudications have fallen far below constitutional norms. Years of disproportionately low court funding levels – as compared to other components of the immigration system such as ICE and CBP – have contributed to an ever-growing backlog of cases that is now well over 600,000.

Despite the well-documented history of structural flaws within the current immigration court system, DOJ and EOIR have failed to propose any viable plan to address these concerns. In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.

RESOLUTION: The Board hereby reaffirms and clarifies its position on immigration court reform as follows:

In its current state, the immigration court system requires a complete structural overhaul to address several fundamental problems. AILA recommends that Congress create an independent immigration court system in the form of an Article I court, modeled after the U.S. Bankruptcy Court. Such an entity would protect and advance America’s core values of fairness and equality by safeguarding the independence and impartiality of the immigration court system.

Below is an outline of the basic features that should be included in the Article I court.

Independent System: Congress should establish an immigration court system under Article I of the Constitution, with both trial and appellate divisions, to adjudicate immigration cases.

This structural overhaul advances the immigration court’s status as a neutral arbiter, ensuring the independent functioning of the immigration judiciary.

Appellate Review:

AILA recommends that the new Article I court system provide trial level immigration courts and appellate level review, with further review to the U.S. Circuit Courts of Appeals and the U.S. Supreme Court. To prevent overburdening Article III courts, it is necessary to include an appellate court within the Article I court system.

Judicial Appointment Process:

AILA recommends the appointment of trial-level and appellate-level judges for a fixed term of no less than 10 years, with the possibility of reappointment. These judges would be appointed by the U.S. Court of Appeals for the federal circuit in which the immigration court resides. The traditional Article I judicial appointment process, which relies on Presidential appointment with Senate confirmation, would be unworkable for the immigration court system and could easily create a backlog in judicial vacancies. The U.S. Bankruptcy Court system, which uses a different appointment process than other Article I courts, is a better model for the immigration court system, due to the comparable size and the volume of cases. Like the U.S. Bankruptcy Court System, which has 352 judges, the immigration court currently has over 300 judges. Traditional Article I courts have far fewer judges than that of the U.S. Bankruptcy Court System. Therefore, AILA recommends a judicial appointment system that closely resembles that of the U.S. Bankruptcy Court.

Hiring Criteria for Judges:

Trial and appellate judges that are selected should be highly qualified, and well-trained, and should represent diverse backgrounds. In addition to ensuring racial ethnic, gender, gender identity, sexual orientation, disability, religious, and geographic diversity, AILA advocates for a recruitment and selection process that is designed to ensure that the overall corps of immigration judges is balanced between individuals with a nongovernment, private sector background, and individuals from the public sector. We believe this balance best promotes the development of the law in the nation’s interest.

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Read the complete report here:

AILA Resolution Passed 2.3.2018

The proposal that U.S. Immigration Judges be appointed by the U.S. Courts of Appeals for renewable 10 year terms is particularly salutary. The current process needs to be professionalized and de-politicized. The U.S. Courts of Appeals are the “primary professional consumers” of the work product of the U.S. Immigration Judges. The U.S. Bankruptcy Court Appointment System recommended by AILA has earned high praise for producing a fair, impartial, merit-based, apolitical judiciary.

The current ridiculous selection and appointment process within the DOJ has two stunning deficiencies.

First, it has become an “insider-only” judiciary. Over the past three Administrations nearly 90% of the newly appointed U.S. Immigration Judges have been from government backgrounds, primarily DHS/ICE prosecutors. Outside expertise, including that gained from representing individuals in Immigration Court, clinical teaching, and working for NGOs and pro bono groups has been systematically excluded from the Immigration Court judiciary, giving it a built-in “one-sided” appearance.

Remarkably, the situation at the appellate level, the Board of Immigration Appeals (“BIA”) has been even worse! No Appellate Immigration Judge/Board Member has been appointed from “outside Government” since 2000, and both of those have long since been removed or otherwise moved on.

Indeed, even sitting (as opposed to “administrative”) U.S. Immigration Judges are seldom appointed or even interviewed for BIA vacancies. There is only one current Appellate Immigration Judge who was appointed directly from the trial court, and that individual had only a modest (approximately three years) amount of trial experience. Thus, a number of sources of what would logically be the most expert and experienced appellate judicial candidates have been systematically excluded from the appointment process at the DOJ.

Second, while the results produced are highly problematic, the DOJ hiring process for U.S. Immigration Judges has been amazingly glacial! According to the Government Accountability Office (“GAO”) the Immigration Judge appointment process during the last Administration took an average of two years! That’s longer than the Senate confirmation process for Article III Judges!

Much of the delay has reportedly been attributed to the slowness of the “background check process.” Come on man! Background checks are significant, but are essentially ministerial functions that can be speeded up at the will of the Attorney General.

It’s not like Eric Holder, Loretta Lynch, or Jeff Sessions were willing to wait two years for background clearance for their other high-level appointees in the DOJ. No, it’s simply a matter of screwed up priorities and incompetence at the highest levels of the DOJ. And, let’s not forget that most of the appointees are already working for the DHS or the DOJ. So they currently have high-level background clearances that merely have to be “updated.”

It should be “child’s play” — a “no-brainer.” When Anthony C. “Tony” Moscato was the Director and Janet Reno was the Attorney General, background checks often were completed for Immigration Judges and BIA Members in less than 60 days. And, if Tony really needed someone on board immediately, he picked up the phone, called “downtown,” and it happened. Immediately! Competence and priorities!

Our oldest son Wick has been private bar member of the U.S. Magistrate Judge Recommendation Committee for the Eastern District of Wisconsin. Their process was much more open, timely, and merit-focused than the current DOJ hiring process (whatever that might actually be) and fairly considered candidates from both inside and outside government.

Also, the slowness of the background check process unfairly prejudices “outside applicants.” Sure, it’s annoying for a “Government insider” to have to wait for clearance. But, his or her job and paycheck continue without problem during the process.

On the other hand, “outside applicants” have to make “business decisions,” — whether to take on additional employees or accept new clients; whether to commit to another year of teaching; whether to accept promotions, etc — that can be “deal breakers” as the process creeps along without much useful feedback from EOIR.

Attorney General Sessions has claimed that he has a “secret process” for expediting appointments. But, so far, except for a “brief flurry” of appointments that were reportedly “already in the pipeline” under Lynch, there hasn’t been much noticeable change in the timelines. Additionally, the process is often delayed because DOJ and EOIR have not planned adequately, and therefore have not acquired adequate space and equipment for new judges to actually start hearing cases.

Government bureaucrats love acronyms (so do I, in case you hadn’t noticed)! There is only one acronym that can adequately capture the current sorry state of administration of the U.S Immigration Courts under DOJ and EOIR administration: “FUBAR!”

And that’s without even getting to the all-out assault on Due Process for vulnerable respondents in the U.S. Immigration Courts being carried out by Jeff Sessions and his minions. According to my information, DOJ/EOIR “management” is pushing Immigration Judges to render twenty-minute “oral decisions;” complete “quotas” of 4-5 cases a day to get “satisfactory” ratings; and not include bond cases, administrative closure, Change of Venue, Credible Fear Reviews, or Motion to Reopen rulings in completions.

Since it takes an experienced Immigration Judge 3-4 hours to do a good job on a “fully contested” asylum decision with oral decision, that’s a “designed to fail” proposal that will undoubtedly lead to cutting of corners, numerous denials of Due Process, and remands from the U.s. courts of Appeals. But despite some disingenuous “rote references” to Due Process, it’s not even an afterthought in Sessions’s plan to turn Immigration Court into “Just Another Whistle Stop on The Deportation Railroad.”

As I say, “Bad ideas never die; they have a life of their own within the bureaucracy.” That’s why we need to get Immigration Courts out of the bureaucracy!

This Congress, which “can barely even tie its own shoes,” so to speak, isn’t likely to get around to creating an Article I Immigration Court. But, every day that the current mal-administered and unfair system remains within the DOJ is a Due Process and fairness disaster. That’s something that even Congress should be concerned about!

Thanks to Attorney (and former Immigraton Judge) Sue Roy of New Jersey for sending me the AILA Resolution.

PWS

02-07-18

GONZO’S WORLD: THE HILL: Professor Lindsay Muir Harris — Using REAL Data & Facts — Rips Apart Sessions’s “Ignorant” (& TOTALLY INAPPROPRIATE) Anti-Asylum Speech To EOIR!

http://thehill.com/opinion/immigration/355734-sessions-fundamentally-misses-the-mark-on-the-asylum-system

Lindsay writes:

“Attorney General Jeff Sessions delivered remarks to the Executive Office of Immigration Review (EOIR) on Oct. 12, arguing that the U.S. asylum system is overburdened with fraud and abuse. Sessions misrepresented the system, relying on virtually no data to reach his, frankly, ignorant conclusions.

. . . .

Fifth, Sessions suggests that because some individuals who pass credible fear interviews fail to apply for asylum, they are fraudulently seeking asylum. This fails to recognize that individuals who pass a credible fear interview have been released with very little orientation as to what to expect next.

For example, asylum law requires that an official application be filed in immigration court within one year of the asylum seeker’s last entry into the United States. U.S. officials, however, fail to tell individuals who pass a credible fear interview about this deadline.

Having just articulated in detail, to a U.S. official, why they are afraid to return to their home country, many asylum seekers believe they have “applied” for asylum, and some even believe they have been granted upon release.

Several groups filed suit against DHS last June based on the lack of notice of the one year filing deadline given to asylum seekers and also the impossibility of filing because the immigration courts are so backlogged that an applicant often cannot file in open court within a year.

Sessions also neglects to mention that asylum seekers face a crisis in legal representation. According to a national study of cases from 2007-2012, only 37 percent of immigrants were represented in immigration court. Representation can make all the difference. Without representation, asylum seekers lack an understanding of what is happening in their case and may be too fearful to appear without an attorney. Their number one priority, remember, is to avoid being sent back to a place where they face persecution and/or torture or death.

Finally, the asylum process itself is complicated and the I-589 form to apply is only available in English. This is overwhelming for a pro se applicant who lacks the ability to read and write in English.

Attorney General Sessions’ remarks should not be surprising, certainly not to any who are familiar with his anti-immigrant track record. It remains disappointing, however, that the nation’s top law enforcement official should politicize and attempt to skew our vision of the asylum-seeking process. As a nation founded by immigrants fleeing religious persecution, it is profoundly disturbing that the current Attorney General sees fit to an attack on asylum seekers and to undermine America’s history of compassionate protection of refugees.

Professor Lindsay M. Harris is co-director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.”

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Go on over to The Hill at the above link and read the rest of Lindsay’s article (containing her points 1-4, which I omitted in this excerpt).

I can confirm that those who have passed the “credible fear” process often mistakenly believe that they “applied for asylum” before the Asylum Office. I also found that few unrepresented respondents understood the difference between required reporting to the DHS Detention Office and reporting to Immigration Court.

Moreover, given the “haste makes waste” procedures applied to recent border arrivals, the addresses reported to EOIR by DHS or entered into the EOIR system were often inaccurate. Sometimes, I could tell they were inaccurate just from my own knowledge of the spelling and location of various streets and jurisdictions in Northern Virginia. Another time, one of the Arlington Immigration court’s “eagle eyed” Court Clerks spotted that a number of supposed “in absentias” charged to Arlington were really located in the state of “PA” rather than “VA” which had incorrectly been entered into our system. No wonder these were coming back as “undeliverable!”

Therefore, I would consider Sessions’s claim of a high “no show” rate to be largely bogus until proven otherwise. My experience was that recently arrived women, children, and families from the Northern Triangle appeared well over 90% of the time if they 1) actually understood the reporting requirements, and 2) actually got the Notice of Hearing. Those who were able to obtain lawyers appeared nearly 100% of the time.

This strongly suggests to me that if Sessions really wanted to address problems in Immigration Court he would ditch the knowingly false anti-asylum narratives and instead concentrate on: 1) insuring that everyone who “clears” the credible fear process has his or her Immigration Court hearing scheduled in a location and a manner that gives them the maximum possible access to pro bono legal representation; 2) insuring that appropriate explanations and warnings regarding failure to appear are given in English and Spanish, and 3) a “quality control initiative” with respect to entering addresses at both DHS and EOIR and serving Notices to Appear.

Jeff Sessions also acted totally inappropriately in delivering this highly biased, enforcement-oriented, political address to the EOIR. Although housed within the DOJ, EOIR’s only functions are quasi-judicial — fairly adjudicating cases. In the words of the Third Circuit Court of Appeals in a recent case the function of the Immigration Judiciary is “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.” Alimbaev v. Att’y Gen. of U.S., 872 F.3d 188, 190 (3rd Cir. 2017).

Consequently, the only appropriate remarks for an Attorney General to make to EOIR and the Immigration Judiciary would be to acknowledge the difficulty of their judicial jobs; thank them for their service; encourage them to continue to render fair, impartial, objective, scholarly, and timely decisions; and explain how he plans to support them by providing more resources for them to do their important jobs. That’s it!!

What is totally inappropriate and probably unethical is for the Attorney General to deliver a “pep talk” to judges spouting the “party line” of one of the parties in interest (the DHS), setting forth inaccurate and unsupported statements of the law, and demeaning the other party to the judicial proceedings — the immigrant respondents and their attorneys.

Although I personally question their ultimate constitutionality under the Due Process Clause, the Attorney General does have two established channels for conveying his views on the law to the EOIR: 1) by incorporating them in regulations issued by the DOJ after public notice and comment; and 2) by “certifying” BIA decisions to himself and thereby establishing his own case precedents which the BIA and Immigration Judges must follow.

Troublesome as these two procedures might be, they do have some glaring differences from “AG speeches and memos.” First, public parties have a right to participate in both the regulatory and the precedent adjudication process, thus insuring that views opposed to those being advanced by the DHS and the Attorney General must be considered and addressed. Second, in both cases, private parties may challenge the results in the independent Article III Courts if they are dissatisfied with the Attorney General’s interpretations. By contrast, the “opposing views” to Session’s anti-asylum screed did not receive “equal time and access” to the judicial audience.

Sessions’s recent disingenuous speech to EOIR was a highly inappropriate effort to improperly influence and bias supposedly impartial quasi-judicial officials by setting forth a “party line” and not very subtilely implying that those who might disagree with him could soon find themselves “out of favor.” That is particularly true when the speech was combined with outrageous discussions of how “performance evaluations” for judges could be revised to contain numerical performance quotes which have little or nothing to do with fairness and due process.

Jeff Sessions quite obviously does not see the U.S. Immigration Courts as an independent judiciary charged with delivering fair and impartial justice to immigrants consistent with the Due Process clause of our Constitution. Rather, he sees Immigration Judges and BIA Appellate Judges as “adjuncts” to DHS enforcement — there primarily to insure that those apprehended by DHS agents or who turn themselves in to the DHS to apply for statutory relief are quickly and unceremoniously removed from the U.S. with the mere veneer, but not the substance, of Due Process.

Due process will not be realized in the U.S. Immigration Courts until they are removed from the DOJ and established as a truly independent Article I court.

PWS

10-31-17

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

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“Injustice Anywhere is a Threat to Justice Everywhere. . . . Whatever Affects One Directly, Affects All Indirectly.”

Dr. Martin Luther King, Jr.

Letters From the Birmingham Jail

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“The lawmakers said they had wanted to come to the court to witness it for themselves, because they fear that around the country there are too many courtrooms that are the opposite.” And, with very good reason!

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Featured Panelists:

(Ret.) Immigration Judge Paul Schmidt, Adjunct Professor of Law, Georgetown University Law

Center Heidi Altman, Policy Director, National Immigration Justice Center James R. McHenry, Director, Executive Office for Immigration Review Judge Denise Slavin, President Emeritus, National Association of Immigration Judges

James R. McHenry, Director, Executive Office for Immigration Review

Judge Denise Slavin, President Emeritus, National Association of Immigration Judges

Karen Grisez, Special Advisor to the ABA Commission on Immigration; Public Service Counsel, Fried Frank LLP

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