CAT REOPENING: 9th Cir. Finds “the BIA abused its discretion by disregarding or discrediting the undisputed new evidence submitted by Agonafer regarding increased violence toward homosexuals in Ethiopia!” — AGONAFER v. SESSIONS!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/23/13-73122.pdf

“We conclude that the BIA abused its discretion because it clearly disregarded or failed to give credit to the post-2007 evidence submitted by Agonafer, which demonstrates that the country conditions regarding the treatment of homosexuals in Ethiopia are qualitatively different from the country conditions presented to the IJ in 2007. Whereas before, we noted that there was “no evidence in the record of any violence directed against homosexuals in Ethiopia,” Agonafer, 467 F. App’x at 754, at least two of the reports submitted with Agonafer’s motion to reopen provide reports of violence directed against homosexuals in Ethiopia since 2007, including violence in connection with imprisonment. Additionally, we reject the government’s contention that Agonafer must present categorically different evidence of “individual relevancy” from what he presented in his earlier proceedings. It is undisputed that Agonafer is a homosexual male. Given Agonafer’s sexual orientation and the evidence of the treatment of homosexuals in Ethiopia, there is sufficient evidence that, if proved, would establish his prima facie eligibility for deferral of removal under the CAT. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“[A] CAT applicant may satisfy his burden with evidence of country conditions alone.”).”

Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Paul C. Huck,* District Judge. Opinion by Judge Huck * United States District Judge for the U.S. District Court for the Southern District of Florida, sitting by designation.

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Yes, it’s only one case out of tens of thousands that the BIA reviews each year. But, mistakes like this from what is supposed to be an “expert judiciary” committed to using “best practices” to “guarantee fairness and due process for all” actually can cost lives!

And mindlessly ramming more cases into an overwhelmed system won’t help the situation.

PWS

06-26-17

2D CIR Raps BIA, USIJ For Applying Wrong Tests For Agfel —- NY 5th Degree Sale Of A Controlled Substance Not A “Drug Trafficking Crime” — Respondent Eligible For Cancellation — KENNARD GARVIN HARBIN v. JEFFERSON SESSIONS III

http://caselaw.findlaw.com/us-2nd-circuit/1865217.html

“We hold that NYPL § 220.31 defines a single crime and is therefore an “indivisible” statute. Accordingly, the agency should have applied the so-called “categorical approach,” which looks to the statutory definition of the offense of conviction, rather than the particulars of an individual’s behavior, to determine whether a prior conviction constitutes an aggravated felony. See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Now applying the categorical approach, we conclude that Harbin’s conviction under the NYPL § 220.31 did not constitute a commission of an aggravated felony. Harbin’s § 220.31 conviction therefore did not bar him from seeking cancellation of removal and asylum.”

PANEL: Circuit Judges CABRANES, POOLER, and PARKER.

OPINION BY: Judge Pooler.

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When will they ever learn, when will they ever learn? Attempts by U.S. Immigration Judges and the BIA to “blow by” proper application of “divisibility analysis” and the “categorical approach” in an effort to maximize removals under the “aggravated felony” provisions of the INA continue to draw criticism from higher court judges. However, they probably are “less career threatening” with respect to the BIA’s relationship to their political bosses at the DOJ. Whoever heard of a due process court system being owned and operated by the chief prosecutor? And, nobody can doubt that Attorney General Jeff Sessions sees himself as the Chief Prosecutor of migrants in the United States. But, to be fair, the last Attorney General to actually attempt to let the BIA function as an an independent quasi-judicial body was the late Janet Reno. And, that was 17 years ago.

PWS

06-23-17

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

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

Jonathan Blitzer writes in The New Yorker:

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

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

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

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

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

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

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

PWS

06-21-17

IMMIGRATION HISTORY: Here’s The Chase-Burman Mini-Library Of Immigration History, Courtesy Of “The Green Card!”

75 Years of the BIA

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Spring-2016-updated.aspx

“Matter of L-, 1 I&N Dec. 1 (BIA 1940), was issued on August 29, 1940, the day before the Board of Immigration Appeals came into existence.2 Some background about the Board’s early history is required to explain this. From 1922 until 1940, a five-member Board of Review existed within the Department of Labor to review all immigration cases. The Board of Review had no decision- making authority of its own; it could only recommend action to the Secretary of Labor. In 1933, the Immigration and Naturalization Service (INS) was formed within the Department of Labor,3 and from 1933 until 1939 the Board of Review made its recommendations to the Commissioner of Immigration and Naturalization.4″

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Commentary on “Pattern or Practice” Persecution

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Fall-2016-.aspx

In INS v. Cardoza-Fonseca, its landmark 1987 decision establishing that the burden of proving a “well-founded fear of persecution” is significantly less than fifty percent, the Supreme Court relied on the following scholarly example: “Let us…presume that it is known that in applicant’s country of origin every tenth adult male person is either put to death or sent to some remote labor camp… In such a case it would be only too apparent that anyone who managed to escape from the country would have ‘well-founded fear of being persecuted’ on his eventual return.”2 While the Court’s decision predates the “pattern or practice” regulation by more than three years, the example it relies on (which predates the regulation by 24 years) presents a classic “pattern or practice” scenario. The hypotheti- cal establishes (1) a group, i.e., all adult males in a particular country; and (2) information establishing systemic persecution of one in ten members of such group. all members of the group therefore have a well-founded without the need to explain their individual circumstances.”

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The History of Racism in U.S. Immigration

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/the-green-card-winter-2017.aspx

“Racism was codified in this country’s original natu- ralization law. The Naturalization Act of 1790 limited the right to naturalize to “free white persons.” Following the Civil War, the Act of July 14, 1870, added “aliens of African nativity” and “aliens of African descent” to those eligible to naturalize. However, all others considered “non-white” continued to be barred from obtaining United States citizenship. In 1922, the Supreme Court denied Takao Ozawa, a Japanese immigrant who had lived in the U.S. for 20 years, the right to become a naturalized citizen because he “clearly” was “not Caucasian.” In interpreting the term “free white persons,” the Court found that “the framers did not have in mind the brown or yellow races of Asia.”1 In United States v. Bhagat Singh Thind,2 the Supreme Court reached the same conclusion regarding an “upper-caste Hindu” who claimed a lineage classi ed as “Aryan” or “Caucasian.” The Court determined that “Aryan” related to “linguistic, and not at all with physical, characteristics,” and concluded that the term “free white persons” as understood by the common man, would not include those of Hindu ancestry.3 It was not until passage of the McCarran-Walter Act in 1952 that the naturalization law was amended to read that “[t]he right of a person to become a naturalized citizen shall not be denied or abridged because of race or sex…”4

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Read all three of Judge Chase’s outstanding histories and get some “instant perspective” on how we got to where we are today as a nation of immigrants. There was no shortage of hypocracy. And, I submit that in the course of history some of today’s politicians advocating restrictive racially and religiously charged immigration policies are going to look just as distasteful, arrogant, prejudiced, and ignorant as some of the judges, lawmakers, and government officials described in these articles.

PWS

06-19-17

UPDATE

Judge Chase has reminded me that there is a fourth part to this collection:

The History of U.S. Asylum Law

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Summer-2016.aspx

“U.S. asylum policy is a product of the tension between the public sentiments of compassion and fear. In the words of a former Deputy UN High Commissioner: “The public will not allow governments to be generous if it believes they have lost control.” 1 Although asylum can be traced back at least to the Old Testament, for all practical purposes, U.S. asylum policy began on the eve of World War II.”

PWS

06-21-17

The Gibson Report For June 19, 2017

The Gibson Report, June 19, 2017

Thanks, Elizabeth!

PWS

06-19-17

BIA PRECEDENT: SD Receipt Of Stolen Motor Vehicle NOT An Agfel — Lacks Mens Rea — Matter Of DEANG, 27 I&N Dec. 57 (BIA 2017) — Split Panel!

https://www.justice.gov/eoir/page/file/974211/download

BIA HEADNOTES:

(“1) An essential element of an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012), is that an offender must receive property with the “knowledge or belief” that it has been stolen, and this element excludes a mens rea equivalent to a “reason to believe.”

(2) A conviction for receipt of a stolen motor vehicle under section 32-4-5 of the South Dakota Codified Laws categorically does not define an aggravated felony receipt of stolen property offense under section 101(a)(43)(G) of the Act because it is indivisible with respect to the necessary mens rea and only requires, at a minimum, that an offender have a “reason to believe” that the vehicle received was stolen.”

BIA PANEL: Appellate Immigration Judges Pauley, Creppy, & Malphrus

OPINION BY: Judge Pauley

DISSENTING OPINION: Judge Malphrus

Here’s an excerpt from Judge Malphrus’s dissent:

“I cannot agree with the majority’s conclusion that the respondent’s receipt of stolen property offense does not qualify as an aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012). I agree that our task is to determine the generic, contemporary meaning of the phrase “receipt of stolen property” in section 101(a)(43)(G) by surveying the Federal and State statutes as they existed in 1994, when Congress added the phrase “receipt of stolen property” to section 101(a)(43) of the Act, as well as the Model Penal Code. See Taylor v. United States, 495 U.S. 575, 592, 598 (1990); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). However, there was simply no consensus regarding the mens rea standard for receipt of stolen property offenses in 1994. I cannot conclude that Congress intended to adopt a mens rea that, according to the majority, would preclude offenses in 21 jurisdictions, as well as a Federal offense, from qualifying as aggravated felonies.”

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Read the complete majority and dissenting opinions at the link. This is a very rare (these days) “split panel” on a BIA precedent.

PWS

06-18-17

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

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

Tory Johnson writes in Immigration Impact:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

06-14-17

BIA Requests Amicus Briefing On Modified Categorical Approach & CIMT — Deadline Is July 12, 2017

https://www.justice.gov/eoir/page/file/972601/download

June 12, 2017, Amicus Invitation Amicus Invitation No. 17-06-12 AMICUS INVITATION (MODIFIED CATEGORICAL APPROACH & CIMTS) DUE [JULY 12, 2017] JUNE 12, 2017 The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue(s): ISSUE(S) PRESENTED: (1) Is the Board precluded from applying a modified categorical analysis for an indivisible or means-based statute within the context of crime involving moral turpitude (CIMT) determinations, when the requirement in question is whether the involved conduct is reprehensible, which is a subjective determination that is not an element of the state offense? (2) Do the “three basic reasons for adhering to an elements-only inquiry,” Mathis v. United States, 136 S. Ct. 2243, 2252-53 (2016), have force in the CIMT context? (3) Do the answers to the first two questions require modification of the Board’s decision in Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), and if so, how? Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual. Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation. Request for Case Information: Additional information about the case, including the parties’ contact information, may be available. Please contact the Clerk’s Office at the below address for this information prior to filing your Request to Appear and brief. Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

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PWS

06-14-17 Continue reading BIA Requests Amicus Briefing On Modified Categorical Approach & CIMT — Deadline Is July 12, 2017

FAILED DUE PROCESS VISION: BIA Blows Off IJ’s Due Process Violations — Third Circuit Blows Whistle On BIA! — Serrano-Alberto v. Attorney General — READ MY “CONTINUING CRITIQUE” OF THE BIA’S FAILURE TO PROTECT THE RIGHTS OF ASYLUM SEEKERS!

http://www2.ca3.uscourts.gov/opinarch/153146p.pdf

PANEL: Circuit Judges VANASKIE, KRAUSE, and NYGAARD

OPINION BY: Judge Nygaard

“While in the vast majority of cases, IJs diligently comport with their constitutional and statutory obligations, and while it is only on rare occasion that we have held an IJ’s conduct crosses the line, the record here compels us to conclude this is one of those rare cases. Because we reach this conclusion against the backdrop of the three main cases to date in which we have distinguished between permissible and impermissible IJ conduct under the Due Process Clause, we will review each of those cases before addressing Serrano- Alberto’s claims for relief.

. . . .

What these cases teach us is that, where a petitioner claims to have been deprived of the opportunity to “make arguments on his or her own behalf,” Dia, 353 F.3d at 239, there is a spectrum of troubling conduct that is fact-specific and must be evaluated on a case-by-case basis to determine if (1) the petitioner “was prevented from reasonably presenting his case[,] and (2) . . . substantial prejudice resulted,” Fadiga, 488 F.3d at 155 (internal quotation marks omitted). At one end of the spectrum, the “lack of courtesy,” “interject[ions]” to clarify and develop the record, and “annoyance and dissatisfaction with . . . testimony” in Abdulrahman, 330 F.3d at 597, were not sufficient to establish a due process claim. At the other end, the “contemptuous tone,” focus on “issues irrelevant to” the petitioner’s claims, and findings unsupported by the record in Wang, 423 F.3d at 270, and the “wholesale nitpicking,” “continual[] abuse[]” and “belligerence,” and “interrupt[ions] . . . preventing important

parts of [the petitioner’s] story from becoming a part of the record,” in Cham, 445 F.3d at 691, 694, were flagrant enough to violate due process. Where these component parts of an IJ’s conduct are sufficiently egregious, at least in combination, a petitioner’s procedural due process rights are violated.

In Serrano-Alberto’s case, we conclude the IJ’s conduct falls on the impermissible end of the spectrum. Indeed, the IJ’s conduct here shares many of the attributes of the conduct we found unconstitutional in Wang and Cham, including a hostile and demeaning tone, a focus on issues irrelevant to the merits, brow beating, and continual interruptions. See supra Sec. III.B. And in contrast to Abdulrahman where the interruptions assisted the petitioner in answering questions and appropriately refocused the hearing, 330 F.3d at 596-98, the IJ’s interruptions here repeatedly shut down productive questioning and focused instead on irrelevant details, see supra Sec. III.B.”

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On the “plus side,” the Third Circuit went out of its way to point out that this case is the exception rather than the rule with respect to Immigration Judges’ respect for due process during the hearing process.

But, on the negative side, why should a supposedly “expert” Board whose mission is to protect due process be letting clearly unfair adjudications like this, which violate due process, get by? Not everybody can afford to go to the Court of Appeals. So, the Board’s failure to carry out its due process functions can actually cost lives, or at least ruin them. How can such a critically important function as appellate immigration judging be treated so dismissively, inappropriately, incompetently, and lackadaisically by successive Administrations while largely escaping critical public examination of its often highly questionable jurisprudence?

In my view, as I’ve observed before, part of the problem lies with the BIA’s overall negative approach to asylum seekers, particularly those from Central America with claims based on “particular social groups.” With a “closed, inbred judiciary” drawn almost exclusively from Government, a highly politicized Department of Justice which is unqualified to run a court system, and the fear of another “Ashcroft purge” hanging over them for judging independently and protecting the rights of asylum seekers, the BIA has basically “tanked” on its duty to guarantee fairness, due process, and protection to asylum seekers. So, if the BIA is unwilling to speak up for the due process and substantive rights of respondents, what’s its purpose? To provide a “veneer of deliberation and due process” to dissuade the Article III courts and the public from digging into the details to find out the real problems?

It’s also interesting that the Third Circuit “calls out” the BIA for a standard practice of using (often bogus) “nexus” denials to deny protection to asylum applicants who fit within a protected ground and can clearly demonstrate a likelihood of harm upon return. Check out FN 5 in the Third Circuit’s opinion:

“5 In a number of recent cases, the BIA likewise has assumed a cognizable PSG or imputed political opinion and disposed of the appeal by finding no nexus. See, e.g., Bol- Velasquez v. Att’y Gen., No. 15-3098 (3d Cir. filed Aug. 28, 2015) (ECF Agency Case Docketed); Bell v. Att’y Gen., No. 14-4781 (3d Cir. filed Dec. 18, 2014) (same); Santos v. Att’y Gen., No. 14-1050 (3d Cir. filed Jan. 8, 2014) (same); Ulloa- Santos v. Att’y Gen., No. 12-2781 (3d Cir. filed June 25, 2012) (same); Orellana-Garcia v. Att’y Gen., No. 12-2099 (3d Cir. filed Apr. 20, 2012) (same). This practice, however, can have troubling consequences. First, it places the analytical cart before the horse in cases like this one, where the very definition of the PSG is then at issue, for denying relief based on the absence of a nexus begs the question: nexus to what? See, e.g., Bol-Velasquez, No. 15-3098. Even the Attorney General has observed “it would be better practice for Immigration Judges and the Board to address at the outset whether the applicant has established persecution on account of membership in a [PSG], rather than assuming it as the Board did here. Deciding that issue—and defining the [PSG] of which the applicant is a part—is fundamental to the analysis of which party bears the burden of proof and what the nature of that burden is.” Matter of A-T-, 24 I. & N. Dec. 617, 623 n.7 (U.S. Att’y Gen. 2008). Second, even where the PSG definition is undisputed—so that the BIA would certainly have discretion to conclude that the efficiency of assuming a given PSG weighs in favor of resolution at the nexus stage—a reflexive practice of simply assuming a PSG has been established and is cognizable does not account for the very real benefits on the other side of the scale. Just as the Supreme Court has observed in the qualified immunity context, adjudication at every step is generally “necessary to support the Constitution’s ‘elaboration from case to case’ and to prevent constitutional stagnation” because “[t]he law might be deprived of this explanation were a court simply to skip ahead,” Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (holding the two-step protocol announced in Saucier v. Katz, 533 U.S. 194 (2001) is no longer mandatory “but often beneficial”), so here, the BIA’s practice of assuming PSG and resolving cases on nexus grounds often inhibits the proper and orderly development of the law in this area by leaving the contours of protected status undefined, precluding further appellate review under the Chenery doctrine, see SEC v. Chenery Corp., 332 U.S. 194 (1947), and ultimately generating additional needless litigation because of the uncertainty in this area, see Valdiviezo-Galdamez, 663 F.3d at 594-609; Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 230 (BIA 2014). This is a case in point, where the IJ articulated the relevant PSG as “individuals perceived as wealthy who refuse to pay gang taxes,” App. 17, although other definitions were reasonable, and the BIA, despite being presented with alternative formulations, declined to rule on the question altogether. In sum, for both of the reasons stated, we strongly encourage IJs and the BIA to define the PSG in question and to adjudicate the existence and cognizability of that PSG.”

Let’s get down to the real point. Largely because of intervention from Article III Courts, more and more “particular social groups” are becoming “cognizable.” This is particularly true in the area of family-based social groups.

Alternatively, the DHS and the BIA have tried to deny claims on the grounds that the foreign government is “not unable or unwilling to protect.” But, given the documented conditions in the Northern Triangle of Central America, such findings often don’t pass the “straight face test” and have had difficulty on judicial review. So the best way to deny protection to Central American asylum seekers is by developing metaphysical, largely bogus, findings of lack of “nexus.”

The answer to the Third Circuit’s question “nexus to what” is simple. It doesn’t matter. No matter what the protected group is in Central American cases, the BIA will do its best to find that no nexus exists, and encourage Immigration Judges to do likewise.

A vivid example of that was the BIA’s recent precedent inMatter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), discussed in earlier blogs. There, without dissent or meaningful discussion, the BIA “deconstructed” a clearly established case for nexus (which actually had been found by the Immigration Judge) and buried it under layers of impenetrable legal gobbledygook. Maybe it will get deference from the Article IIIs, maybe it won’t. There isn’t much consistency there either.

Asylum applicants lives are at stake in removal proceedings. They deserve a process where fairness, due process, and deep understanding of the life-preserving functions of protection law are paramount. Today’s system, which all too often runs on the principles of expediency, institutional preservation, job security, pleasing the boss, and sending law enforcement “messages” is failing those most in need. One way or another, our country and future generations will pay the price for this dereliction of duty.

PWS

06-13-17

Supremes Apply Equal Protection Analysis To Citizenship Statutes — But Plaintiff Unwed Father Still Loses

No way to explain this baby succinctly. So, if you’re interested, here is the decision; written by Justice Ginsburg with a concurring opinion by Justice Thomas, joined by Justice Alito. The case is Sessions v. Morales-Santana.

https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf

PWS

06-12-17

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

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

Additional thoughts and comments welcome!

PWS

06-11-17

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

** ADR = “Aimless Docket Reshuffling”

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

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

FOR IMMEDIATE RELEASE

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

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

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

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

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

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

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

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

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

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

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

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

http://facebook.com/tracreports

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

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

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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

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

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

Thanks to Nolan Rappaport for alerting me to this report.

PWS

06-11-17

Still Not Sure We Need U.S. Immigration Court Reform? Read This Explosive New OIG Report — While “Rome Was Burning” In The Immigration Courts, EOIR Senior Exec Was Busy Fiddling Around Hiring Pals, Soliciting Sexual Favors, Taking Kickbacks On Contracts, Lying To Investigators, & Retaliating Against Honest Employees!

INVESTIGATIVE SUMMARY

Findings Concerning Improper Hiring Practices, Inappropriate Interactions with Subordinates and a Contractor, and False Statements by a Senior Executive with the
Executive Office for Immigration Review

The Department of Justice (DOJ) Office of the Inspector General (OIG) initiated an investigation of a senior executive with the Executive Office for Immigration Review (EOIR) based on information it received from DOJ that the official engaged in inappropriate hiring practices, used non‐public information to benefit friends, solicited and accepted gifts from subordinates, maintained inappropriate relationships with subordinates, and participated in an inappropriate quid pro quo scheme with a contract company.

The OIG found that the executive engaged in improper hiring practices when, on seven separate occasions, the executive disregarded merit system principles to hire close friends and associates as DOJ employees or DOJ contract personnel over applicants with superior qualifications for the positions. The OIG also found that the executive initiated and approved the promotion of a friend before the individual was eligible for promotion, nominated a friend for a monetary award without sufficient justification, and promoted a friend who lacked qualifications for the position. The OIG further found that the executive disclosed to friends and acquaintances non‐public information about job opportunities on a pending DOJ contract, and advocated for increasing contractor salaries in support of friends. The OIG found that this conduct violated federal statutes, federal regulations, and DOJ policy.

In addition, the OIG found that the executive maintained an inappropriate personal relationship with a subordinate, and solicited and accepted gifts and donations from subordinates, in violation of federal statutes and regulations, and DOJ policy. The OIG investigation further concluded that the executive engaged in an inappropriate scheme with a DOJ contractor in which the executive sought employment and training from the contractor for personal friends in exchange for the executive actively participating in the creation and awarding of a purchase agreement of substantial monetary value to the contractor, in violation of federal statutes and regulations.

Lastly, the OIG found that the executive lacked candor and provided false statements to the OIG in relation to the executive’s conduct in the above‐described matters, in violation of federal statute and regulation. Prosecution of the executive was declined.

The OIG has completed its investigation and provided this report to EOIR for appropriate action. The OIG also referred to the U.S. Office of Special Counsel its findings that the executive retaliated against employees who refused to hire the executive’s friends.

Posted to oig.justice.gov on June 6, 2017

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The “experiment” with trying to run a major court system as an agency of the USDOJ is over. It has failed! Is Jeff Sessions going to straighten this mess out? No way! In addition to being less than candid under oath during his Senate Confirmation hearing (or perjuring himself in the view of many), the Comey testimony certainly made it appear that Sessions either was under active investigation by Special Counsel Robert Mueller or soon would be under such investigation.

And, it’s by no means just Sessions. Every Attorney General since Janet Reno has contributed significantly to the downward spiral in the U.S. Immigration Courts (including the BIA). Former Attorney General Loretta Lynch, who helped push Immigration Court backlogs to incredible new heights with poor hiring practices and politically motivated enforcement priorities, also came out of the Comey hearing looking like someone who put political loyalty before integrity. For the record, she has denied Comey’s charges. But, then so have Trump & Sessions. Not very good company, I’m afraid. And, don’t forget that the whole mess with the announcement on the Hillary Clinton investigation started because Lynch had the incredibly poor judgement to meet with Bill Clinton during the heat of his wife’s Presidential campaign.

This OIG Report comes on the heels of a GAO Report that pointed out a number of chronic management problems in EOIR, including the ridiculous 2-year hiring cycle for U.S. Immigration Judges. The GAO also discussed options for restructuring the Immigration courts as an independent agency, although the report did not make a specific recommendation on that subject. Here’s a link to my blog on the GAO report: http://wp.me/p8eeJm-Uh

PWS

06-10-17

9th Circuit Reverses BIA, Says CAL Fleeing From A Police Officer Not A Categorical CIMT! — Ramirez-Contreras v. Sessions — Read My Mini-Essay “Hard Times In The Ivory Tower”

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Here is the summary prepared by the court staff:

“Immigration

The panel granted Ramirez-Contreras’s petition for review of the Board of Immigration Appeals’ decision concluding that his conviction for fleeing from a police officer under California Vehicle Code § 2800.2 is categorically a crime involving moral turpitude that rendered him statutorily ineligible for cancellation of removal.

In holding that Ramirez-Contreras’s conviction is not a crime of moral turpitude, the panel accorded minimal deference to the BIA’s decision due to flaws in its reasoning.

Applying the categorical approach, the panel viewed the least of the acts criminalized under California Vehicle Code § 2800.2, and concluded that an individual can be convicted under subsection (b) for eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” Therefore, the panel held that California Vehicle Code § 2800.2 is not a crime of moral turpitude because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude.

The panel also held that the modified categorical approach does not apply because the elements of California Vehicle Code § 2800.2 are clearly indivisible.”

Before: Mary M. Schroeder, Andre M. Davis,** and Mary H. Murguia, Circuit Judges.

Opinion by Judge Schroeder

** The Honorable Andre M. Davis, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

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

HARD TIMES IN THE IVORY TOWER

by Paul Wickham Schmidt

The BIA has been having a rough time lately on its rulings concerning both “aggravated felonies” and “crimes involving moral turpitude.” The BIA appears to take an “expansive” or “inclusive” approach to criminal removal statutes, while most courts, including the Supremes, seem to prefer a narrower approach that assumes the “least possible crime” and ameliorates some of the harshness of the INA’s removal provisions.

In my view, the BIA’s jurisprudence on criminal removal took a “downward turn” after Judge Lory D. Rosenberg was forced off the BIA by then Attorney General John Ashcroft around 2002. Judge Rosenberg’s dissents often set forth a “categorical” and “modified categorical” analysis that eventually proved to be more in line with that used by higher Federal Courts all the way up to the U.S. Supreme Court.

Since the “Ashcroft purge,” the BIA has visibly struggled to get on the same wavelength with the reviewing courts on analyzing criminal removal provisions. At the same time, the BIA’s own precedents have been remarkable for their lack of meaningful dissent and absence of any type of visible judicial dialogue and deliberation. Maybe that’s what happens when you try to build a “captive court” from the “inside out” rather than competitively selecting the very best Appellate Immigration Judges from different backgrounds whose views span the entire “real world” of immigration jurisprudence.

Just another reason why it’s time to get the United States Immigration Courts (including the “Appellate Division” a/k/a/ the BIA) out of the Executive Branch and into an independent judicial structure. No other major court system in America is run the way DOJ/EOIR runs the Immigration Courts. And, that’s not good news for those seeking genuine due process within the immigration system.

PWS

06-09-17

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATON COURTS

Keynote Address by

Paul Wickham Schmidt

United States Immigration Judge (Retired)

LIGHT OF LIBERTY AWARDS

Pennsylvania Immigration Resource Center

Heritage Hills Golf Resort

York, PA

JUNE 7, 2016

I. INTRODUCTION

Good evening. Thank you so much for inviting me to speak at this wonderful event. I’m honored to be here. The PIRC is a terrific organization that provides critical legal services to the most vulnerable during one of the most difficult periods in our recent history.

The York area has a well-established tradition of humanitarian generosity and support for the most needy that was highlighted during the Golden Venture episode and described in the book Snakehead. I learned today that PIRC was formed to respond to the needs of the Golden Venture detainees. The U.S. Immigration Court in York has one of the highest representation rates for detained individuals in the nation, over 50%.

By contrast, the Arlington Immigration Court, where I used to sit, and the Baltimore Immigration Court had detained representation rates of around 20% and 10% respectively. And, it’s even worse in other parts of the country.

Back in February, I had the pleasure of working with your amazing Executive Director, Mary Studzinski, at a group session directed at improving training for non-attorney representatives authorized to practice before the U.S. Immigration Courts and the Board of Immigration Appeals. We bonded instantly. That’s “human bonding” rather than “immigration bonding,” of course. Mary’s kinetic energy, practical knowledge, tremendous dedication, and incisive contributions to the group were simply stunning. I must admit, I thought she was the Managing Attorney of the organization until she explained her role to me. You are so fortunate to have of someone who cares so deeply about your mission leading you. Mary is just what America needs right now.

Speaking of what America needs, I of course want to be the first to congratulate the five extraordinary individuals and two groups we are honoring tonight with well-deserved “Light of Liberty” Awards. Your energy, knowledge, and willingness to give of yourselves to others is making a much needed positive difference in this community and in our world. Each of you is indeed changing the course of history for the better. And, I’m pleased to announce that I have bestowed on each of tonight’s award recipients the rank of “General” in the “New Due Process Army. “

And, of course, thanks again to our great sponsors, mentioned by Mary, for supporting PIRCV and tonight’s awards.

II. THE DUE PROCESS CRISIS IN IMMIGRATON COURT

As most of you in this room probably recognize, there is no “immigration crisis” in America today. What we have is a series of potentially solvable problems involving immigration that have been allowed to grow and fester by politicians and political officials over many years.

But, there is a real crisis involving immigration: the attack on due process in our U.S. Immigration Courts that have brought them to the brink of collapse. I’m going to tell you seven things impeding the delivery of due process in Immigration Court that should be of grave concern to you and to all other Americans who care about our justice system and our value of fundamental fairness.

First, political officials in the last three Administrations have hijacked the noble mission of the U.S. Immigration Courts. That vision, which I helped develop in the late 1990s, is to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.”

Instead, the Department of Justice’s ever-changing priorities, aimless docket reshuffling, and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. Obviously, it is past time for an independent U.S. Immigration Court to be established outside the Executive Branch.

Second, there simply are not enough pro bono and low bono attorneys and authorized representatives available to assist all the individuals who need representation in Immigration Court. As I mentioned, this problem is particularly acute in detention courts. We know that representation makes a huge difference. Represented individuals succeed at rates four to five times greater than unrepresented individuals.

There have been a number of studies documenting the substandard conditions in immigration detention, particularly those run by private contractors, which in some cases prove deadly or debilitating. Some of these studies have recommended that immigration detention be sharply reduced and that so-called “family detention” be discontinued immediately.

A rational response might have been to develop creative alternatives to detention, and to work closely with and support efforts to insure access to legal representation for all individuals in Removal Proceedings. Instead, the response of the current Administration has been to “double down” on detention, by promising to detain all undocumented arrivals and to create a new “American Gulag” of detention centers, most privately run, along our southern border, where access to attorneys and self-help resources is limited to non-existent.

Third, the Immigration Courts have an overwhelming caseload. Largely as a result of “aimless docket reshuffling” by Administrations of both parties, the courts’ backlog has now reached an astounding 600,000 cases, with no end in sight. Since 2009, the number of cases pending before the Immigration Courts has tripled, while court resources have languished.

The Administration’s detention priorities and essentially random DHS enforcement program are like running express trains at full throttle into an existing train wreck without any discernable plan for clearing the track!” You can read about it in my article in the latest edition of The Federal Lawyer.

Fourth, the immigration system relies far too much on detention. The theory is that detention, particularly under poor conditions with no access to lawyers, family, or friends, will “grind down individuals” so that they abandon their claims and take final orders or depart voluntarily. As they return to their countries and relate their unhappy experiences with the U.S. justice system, that supposedly will “deter” other individuals from coming.

Although there has been a downturn in border apprehensions since the Administration took office, there is little empirical evidence that such deterrence strategies will be effective in stopping undocumented migration in the long run. In any event, use of detention, as a primary deterrent for non-criminals who are asserting their statutory right to a hearing and their constitutional right to due process is highly inappropriate. Immigration detention is also expensive, and questions have been raised about the procedures used for awarding some of the contracts.

Fifth, we need an appellate court, the Board of Immigration Appeals, that functions like a real court not a high-volume service center. Over the past decade and one-half, the Board has taken an overly restrictive view of asylum law that fails to fulfill the generous requirements of the Supreme Court’s landmark decision in Cardoza-Fonseca and the Board’s own precedent in Matter of Mogharrabi. The Board has also failed to take a strong stand for respondents’ due process rights in Immigration Court.

Largely as a result of the Board’s failure to assert positive leadership, there is a tremendous discrepancy in asylum grant rates – so-called refugee roulette.” Overall grant rates have inexplicably been falling. Some courts such as Atlanta, Charlotte, and some other major non-detained courts have ludicrously low asylum grant rates, thereby suggesting a system skewed, perhaps intentionally, against asylum seekers. Perhaps not coincidentally, the Board has become totally “government-dominated” with no member appointed from the private sector this century.

Sixth, the DOJ selection process for Immigration Judges and BIA Members has become both incredibly ponderous and totally one-sided. According to a recent GAO study, it takes on the average nearly two years to fill an Immigration Judge position. No wonder there are scores of vacancies and an unmanageable backlog!

And, it’s not that the results of this glacial process produce a representative immigration judiciary. During the Obama Administration, approximately 88% of the Immigration Judge appointments came directly from government backgrounds. In other words, private sector expertise has been almost totally excluded from the 21^st Century immigration judiciary.

Seventh, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

III. ACTION PLAN

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, and those who have practiced before the Arlington Immigration Court.

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

Obviously, the PIRC is a fantastic way to contribute to assertively protecting the due process rights of migrants. Internships and JLC positions at the Immigration Courts are also ways for law students and recent law grads to contribute to due process while learning.

As mentioned earlier, Mary and I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, teachers, and others who are not lawyers but who can qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

Even if you are a lawyer not practicing immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

Another critical area for focus is funding of nonprofit community-based organizations, like PIRC, and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

Many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

IV. CONCLUSION

In conclusion, I have shared with you the U.S. Immigration Court’s noble due process vision and the ways it currently is being undermined and disregarded. I have also shared with you some of my ideas for effective court reforms that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!

Thanks again for inviting me and for listening. Congratulations again to our award winners and newly commissioned Generals of the New Due Process Army.

(06-08-17)

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

Congratulations to these Light of Liberty Awards winners and newly commissioned Generals in the New Due Process Army:

ATTORNEY OF THE YEAR:

Rosina Stambaugh, Esquire

LAW FIRM OF THE YEAR

Asylum & Human Rights Clinic, University of Connecticut School of Law

CONTINUING COMMITMENT TO JUSTICE INDIVIDUAL:

Professor Jill Family,

Widener University Delaware Law School

INTERPRETER OF THE YEAR

Rosalyn Groff

COMMUNITY VOLUNTEER OF THE YEAR:

Dr. Anne Middaugh

CONTINUING COMMITMENT TO JUSTICE ORGANIZATION:

Philadelphia Bar Foundation

VOICE OF COURAGE:

Josia Nunes

Out in the audience was superstar lawyer/social worker Hannah Cartwright, a “Charter Member” of the New Due Process Army, now on the legal staff at the PIRC. Hanna, a distinguished Catholic University Law grad, served as a Legal Intern at the Arlington Immigration Court and a Judicial Law Clerk at the Philadelphia Immigration Court.

Pictures and other news from this wonderful event to follow.

PWS

06-08-17

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** ADR = “Aimless Docket Reshuffling”

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