"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
On August 16, 2019, the Executive Office for Immigration Review issued a memo limiting the types of cases that an immigration judge may place on a status docket while a noncitizen is waiting for some event to occur that will impact the removal proceedings. The policy may make it more difficult for some respondents to seek immigration relief while in removal proceedings, especially relief before U.S. Citizenship and Immigration Services. This practice advisory provides background on status dockets, describes the new policy, and provides tips for practitioners with clients whose cases are currently on a status docket or who would otherwise have pursued status docket placement but may now be found ineligible for status docket placement.
action to avoid increasing the Board’s backlog—it is critically important to make certain that all appeals are processed in a timely manner.
The Board Chairman is required to establish a case management system to manage the Board’s caseload. 8 C.F.R. 1003.1(e). The Chairman, under the supervision of the Director, is responsible for the success of the case management system. Id. The Director is further authorized, inter alia, “to ensure the efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases; to direct that the adjudication of certain cases be deferred; to regulate the assignment of adjudicators to cases; and otherwise to manage the docket of matters to be decided by the Board.” 8 C.F.R. § 1003.0(b)(1)(ii).
Although the Board has implemented a case management system pursuant to regulation, that system does not fully provide for clear internal deadlines for all phases of the pre-adjudicatory process.1 Similarly, although the regulations evince a clear directive for prompt processing and disposition by the Board, they do not provide specific deadlines for case processing prior to completion of the appellate record. Moreover, as the Department of Justice Office of the Inspector General has previously noted, the regulatory deadlines for the adjudication of appeals exclude a significant amount of pre-adjudicatory processing time, skewing the Board’s reported achievements of its goals for appeals and impeding the effective management of the appeals process. U.S. Dep’t of Justice, Office of the Inspector General, Management of Immigration Cases and Appeals by the Executive Office for Immigration Review (Oct. 2012), https://oig.justice.gov/reports/2012/e1301.pdf.
To ensure the success of the Board’s case management system and to
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network
better manage the appeals process so that cases are adjudicated promptly, it is appropriate to clearly state EOIR’s expectations regarding the timely processing of appeals. 2 To that end, it is important to have clear deadlines for the movement of cases throughout the entire appellate process, and not just for the adjudication at the end of the process. Accordingly, EOIR now issues the following guidance regarding the case management system for appellate adjudications by the Board.3
Case Processing
All case appeals are referred to the screening panel for review, and appeals subject to summary dismissal “should be promptly dismissed.” 8 C.F.R. § 1003.1(e)(1). To ensure prompt initial
1 The pre-adjudicatory process includes, inter alia, screening of notices of appeal, requesting Records of Proceedings (ROPs), ordering transcripts, serving a briefing schedule, and assigning a case for merits review once the record is complete.
2 Although the importance of timely adjudication applies to all types of appeals at the Board, the specific provisions of this PM do not apply to the processing of appeals of decisions involving administrative fines and penalties, decisions on visa petitions, decisions on the exercise of discretion by the Department of Homeland Security pursuant to INA § 212(d)(3), and decisions in practitioner discipline proceedings.
3 For timeframes that are not currently being met, EOIR understands that Board leadership recently changed and that it may take time to adjust Board practices. Nevertheless, the agency is also cognizant that the Board recently hired six new permanent Board members and is also hiring additional support staff. Consequently, EOIR expects that the Board will address inefficiencies in its appellate processing as soon as possible.
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screening, all cases should be referred to the screening panel within 14 days of the filing of the notice of appeal to determine whether the appeal is subject to summary dismissal. Appeals subject to summary dismissal, particularly appeals subject to summary dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(G) for being untimely filed, should be dismissed within 30 days of referral to the screening panel.
In any case that has not been summarily dismissed, the Board “shall arrange for the prompt completion of the record of proceedings and transcript, and the issuance of a briefing schedule.” 8 C.F.R. § 1003.1(e)(3). Thus, to ensure prompt completion of the record for case appeals that have not been summarily dismissed, the Board should order the ROP4 if it was not previously ordered and, if appropriate, request a transcript within 14 days of referral to the screening panel.5 If a case does not require the preparation of a transcript and is not subject to summary dismissal, the Board should set and serve a briefing schedule within 14 days of referral to the screening panel. If a case requires neither the preparation of a transcript nor the service of a briefing schedule—e.g. a motion to reopen filed directly with the Board—the Board should forward the case for merits review within three days of the receipt of the ROP.
Every appeal that requires a transcript should be sent to a vendor for transcription within 14 days of referral to the screening panel. The only exceptions are situations in which there is no vendor with available capacity or if there is no available funding for further transcription.6
Upon receipt of the transcript, the Board should set and serve a briefing schedule within three days if the immigration judge’s decision was rendered in writing. If the immigration judge’s decision was rendered orally, the Board should provide the transcript of the oral decision to the immigration judge within three days of receipt of the transcript. The immigration judge “shall review the transcript and approve the decision within 14 days of receipt, or within seven days after the immigration judge returns to his or her duty station if the immigration judge was on leave or detailed to another location.” 8 C.F.R. § 1003.5(a). The Board should then set and serve a briefing schedule within three days of the immigration judge’s review and approval.
4 It is crucial that immigration courts promptly comply with requests for the ROP by the Board, and the Board may remand a case for recovery of the record if an immigration court does not forward the ROP promptly. The Board should decide whether such a remand is appropriate within 21 days of an immigration court’s failure to forward the ROP following the Board’s request. Such a remand will not be counted against an immigration judge for purposes of evaluating that judge’s performance. The Chairman shall promptly notify the Chief Immigration Judge and the Director of any immigration court that has not complied with a request for the ROP within 21 days of that request.
5 Unless the ROP contains cassette tapes requiring transcription, ordering the ROP and requesting transcription should occur concurrently within 14 days of referral to the screening panel. Transcripts are not normally prepared for the following types of appeals: bond determinations; denials of motions to reopen (including motions to reopen in absentia proceedings); denials of motions to reconsider; and interlocutory appeals. Board of Immigration Appeals Practice Manual, § 4.2(f)(ii).
6 The Chairman is directed to immediately notify the Director and the Assistant Director for the Office of Administration in any situation in which it appears that funding for transcription of all cases relative to vendor capacity is insufficient to meet the goals of this PM. Similarly, the Chairman is directed to notify the Director and the Assistant Director for the Office of Administration of any additional resource needs in order to meet the goals of this PM.
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“In the interest of fairness and the efficient use of administrative resources, extension requests [of briefing schedules] are not favored.” Board of Immigration Appeals Practice Manual, § 4.7(c)(i). Because extension requests are not favored, they should not be granted as a matter of course, and there is no automatic entitlement to an extension of the briefing schedule by either party. Extension requests filed the same day as a brief is due are particularly disfavored and should be granted only in the most compelling of circumstances.
The case should be forwarded for merits review within three days after the expiration of the briefing schedule or the filing of briefs by both parties, whichever occurs earlier. A single Board member may summarily dismiss an appeal after completion of the record. 8 C.F.R. § 1003.1(e)(3). An appeal subject to summary dismissal because a party indicated that it would file a brief and failed to do so, 8 C.F.R. § 1003.1(d)(2)(i)(E), should be dismissed within 21 days of expiration of the briefing schedule.
The single Board member should determine the appeal on the merits as provided in paragraph 8 C.F.R. § 1003.1(e)(4) or (e)(5), unless the Board member determines that the case is appropriate for review and decision by a three-member panel under the standards of 8 C.F.R. § 1003.1(e)(6). The single Board member should determine whether the case should be referred to a three-member panel within 14 days of referral of the case for merits review, and the Board should assign the case to a three-member panel within three days of the single Board member’s determination.7 If a case is assigned to a three-member panel, a decision must be made within 180 days of assignment. 8 C.F.R. § 1003.1(e)(8)(i). If a case is not assigned to a three-member panel, the single Board member shall adjudicate the appeal within 90 days of completion of the record on appeal. Id.
The Chairman may grant an extension of the 90 and 180-day deadlines of up to 60 days in exigent circumstances. 8 C.F.R. § 1003.1(e)(8)(ii).8 “In rare circumstances,” the Chairman may hold a case or cases and suspend the 90 and 180-day deadlines to await an impending decision by the Supreme Court, a U.S. Court of Appeals, or an en banc Board decision or to await impending Department regulatory amendments. 8 C.F.R. § 1003.1(e)(8)(iii).9 The Chairman shall provide a monthly report of all cases in which an extension was granted due to exigent circumstances and all cases being held pursuant to 8 C.F.R. § 1003.1(e)(8)(iii).
Any appeal not adjudicated within the regulatory time frames shall be handled in accordance with 8 C.F.R. § 1003.1(e)(8)(ii). The Chairman shall provide a monthly report of all cases which have exceeded these time frames.
Overall, absent an exception or unique circumstance provided for by regulation or this PM, no appeal assigned to a single Board member should remain pending for longer than 230 days after
7 A single Board member retains the ability to later decide that a case should be assigned to a three-member panel if circumstances arise that were unknown at the time of the initial determination that such assignment was not warranted.
8 Additionally, the 90 and 180-day deadlines do not apply to cases in which the Board holds an adjudication of the appeal while awaiting the results of identity, law enforcement, or security investigations or examinations. 8 C.F.R. §§ 1003.1(d)(6) and (e)(8)(i).
9 As a matter of policy, the Chairman may also defer adjudication of appeals under 8 C.F.R. § 1003.1(a)(2)(i)(C) to await an impending decision by the Attorney General.
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filing of the notice to appeal, and no appeal assigned to a three-member panel should remain pending for longer than 335 days after filing the notice of appeal. The Chairman shall track the progress of appellate adjudications and shall provide a monthly report of all cases which exceed those parameters.
Finally, EOIR does not have a policy restricting or prohibiting the use of summary dismissals of appeals, nor does it have a policy restricting or prohibiting the use of affirmances without opinion. Any appeals amenable to those procedures should be adjudicated consistent with the regulatory requirements for them, 8 C.F.R. §§ 1003.1(d)(2) and (e)(4), and this PM.
III. Interlocutory Appeals
The regulations do not expressly address interlocutory appeals. “The Board does not normally entertain interlocutory appeals and generally limits interlocutory appeals to instances involving either important jurisdictional questions regarding the administration of the immigration laws or recurring questions in the handling of cases by Immigration Judges.” Board of Immigration Appeals Practice Manual, § 4.14(c).
The Board does not normally issue briefing schedules for interlocutory appeals, nor do most interlocutory appeals require transcription. Board of Immigration Appeals Practice Manual, §§ 4.2(f)(ii), 4.14(e). Consequently, interlocutory appeals are not subject to the same processes as typical case appeals on the merits. Nevertheless, it is the policy of EOIR to adjudicate interlocutory appeals promptly and efficiently.
To that end, interlocutory appeals should be reviewed by the screening panel within 14 days of filing. The screening panel should then either decide the interlocutory appeal within 30 days of filing or forward it for merits review.
Assignment and Performance
Regulations authorize the Chairman to designate a screening panel and other merits panels as appropriate. It is the policy of EOIR that panel assignments shall occur no less frequently than the beginning of each fiscal year.
Finally, “[t]he Chairman shall notify the Director of EOIR and the Attorney General if a Board member consistently fails to meet the assigned deadlines for the disposition of appeals, or otherwise fails to adhere to the standards of the case management system. The Chairman shall also prepare a report assessing the timeliness of the disposition of cases by each Board member on an annual basis.” 8 C.F.R. § 1003.1(e)(8)(v). Notification pursuant to this regulation should occur no later than 30 days after the Chairman determines that a Board member has failed to meet these standards. The Chairman shall prepare the annual report required by this regulation at the conclusion of each fiscal year.
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V . Conclusion
In December 2017, Attorney General Sessions provided a list of principles to which EOIR is expected to adhere, including the principle that “[t]he timely and efficient conclusion of cases serves the national interest.” Memorandum to the Executive Office for Immigration Review, Renewing Our Commitment to the Timely and Efficient Adjudication of Immigration Cases to Serve the National Interest (Dec. 6, 2017), https://www.justice.gov/eoir/file/1041196/download. That principle applies to cases at the Board no less than it applies to cases in immigration courts, and EOIR remains committed to ensuring that all immigration cases at both the immigration court and appellate levels are adjudicated efficiently and fairly consistent with due process.
Responsibility for the Board’s case management system and the duty to ensure the efficient disposition of pending cases fall on the Chairman, and Board members themselves are ultimately responsible for the adjudication of individual cases. Accordingly, nothing in this PM is intended to require—or should be construed as requiring—a change in the conditions of employment of any bargaining unit employees at the Board.
The Board maintains a goal developed under the Government Performance and Results Act (GPRA) of completing 90% of detained appeals within 150 days of filing. The instant PM does not alter that goal, and in all cases, it remains EOIR policy that the Board “shall issue a decision on the merits as soon as practicable, with a priority for cases or custody appeals involving detained aliens.” 8 C.F.R. § 1003.1(e)(8).
This PM supersedes any prior guidance issued by EOIR regarding the timely processing of cases on appeal.
This PM is not intended to, does not, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Further, nothing in this PM should be construed as mandating a particular outcome in any specific case.
Please contact your supervisor if you have any questions. _____________
WASHINGTON, DC – Today, the American Immigration Lawyers Association (AILA) reviewed and analyzed the recent policy memo impacting the workings of the Board of Immigration Appeals (BIA) which serves as the appellate arm of the immigration courts within the Department of Justice (DOJ).
Jeremy McKinney, Second Vice President of AILA noted, “This memo offers significant areas of concern. An earlier rule issued in August describing the reorganization of the Executive Office for Immigration Review (EOIR) at DOJ delegates authority from the Attorney General to the EOIR director to adjudicate cases ‘that cannot be completed in a timely fashion.’ As a political appointee and not an immigration judge, the director should not have that power. This memo goes even further and pressures BIA members to speed up adjudications without care for due process. Frankly, this latest memo only underscores the need for an independent immigration court to get these proceedings out from under the thumb of the nation’s prosecutor.”
Benjamin Johnson, AILA Executive Director stated, “The purported reasoning behind this memo is that BIA adjudication rates have stalled. What did they expect the appellate situation would look like when immigration enforcement was ramped up and targeted people with longstanding ties to their communities and potential equities in immigration cases? It was inevitable that the appeals caseload would increase. This memo actually urges BIA adjudicators to dismiss appeals, before a transcript of the original hearing is even reviewed. The result of this policy change will be even more federal court litigation as people seek to get their fair day in court. Everything about this system is incongruent with an independent decision-making body.”
It just keeps getting worse and worse, as Congress and the Article IIIs shirk their duties to intervene and enforce Due Process in our broken and “maliciously incompetently” managed Immigration “Courts.”
As one “Roundtable” member noted, in an amazing public ripoff, the Administration is raising the appeal fees by nearly 1000% so abused immigrants subjected to the EOIR “Kangaroo Court” will now “pay more for less justice!”
But, all is not lost! NDPA Lt. General and Roundtable stalwart Judge Lory D. Rosenberg has put out a timely format (below) for filling out a Notice of Appeal (“NOA”) that will be “McHenryproof” and will also highlight to the Article III Courts of Appeals the stunning denial of Due Process and encouragement of sloppy work, “worst practices,” and corner cutting at EOIR. Let’s see whether being flooded with inferior, biased work product by the BIAwill finally spur the Article IIIs to take some long overdue corrective action (as they did during the due process disaster at EOIR that followed the “Ashcroft Purge” at the BIA).
Seventeen year-old Josue and his mom, Esperanza, were visibly drained. They had just spent more than four hours at their asylum trial inside an immigration court at 26 Federal Plaza in Lower Manhattan, answering questions from their attorney and a government lawyer. We are withholding their full names to protect their identities because they’re afraid.
“It was exhausting,” said Josue, whose angular haircut was neatly combed for the occasion. In Spanish, he told us the judge seemed nice but, “you feel bad if you don’t know if you are going to be allowed to stay or if you have to go.”
The teen and his mother crossed the U.S. border in California in the summer of 2018. At the time, a rising number of families were entering the country, and the Trump administration wanted to send a message to them by swiftly deporting those who don’t qualify for asylum. But immigration judges are so busy, they can take up to four years to rule on a case. In November, judges in New York and nine other cities were ordered to fast track family cases and complete them within a year.
This is how Esperanza and Josue wound up going to trial just 10 months after they arrived in the U.S. and moved to Brooklyn. They were lucky to find attorneys with Central American Legal Assistance, a nonprofit in Williamsburg that’s been representing people fleeing the troubled region since 1985.
Listen to reporter Beth Fertig’s WNYC story on Josue and Esperanza’s cases.
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Winning asylum was never easy. But in 2018, former Attorney General Jeff Sessions made it tougher for people like Josue and Esperanza when he issued his own ruling on an immigration case involving a woman from El Salvador who was a victim of domestic violence. He wrote: “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”
Immigration judges were bound to give heavy weight to that ruling. Their courts are run by the Department of Justice, whose boss is the Attorney General. And the AG’s boss, President Trump, frequently asserts that too many migrants lie about being threatened by gangs when they’re just coming for jobs. “It’s a big fat con job, folks,” he said at a Michigan rally this year.
Esperanza and Josue went to court soon after Sessions’ decision. She was fighting for asylum as a victim of domestic abuse; Josue claimed a gang threatened his life. Both would eventually lose their cases.
Josue’s case
Esperanza and Josue are typical of the Central American families seeking asylum these days, who say they’re escaping vicious drug gangs, violence and grinding poverty. The two of them came from a town outside San Pedro Sula, one of the most dangerous cities in the world.
During their trial, Josue testified under oath about how gang members repeatedly approached him outside his high school, asking him to sell drugs to the other students. He tried to ignore them, and gave different excuses for resisting, until one day when they spotted him playing soccer and became more aggressive. That’s when he said the gang leader put a gun in his face.
“He told me that if I didn’t accept what he wanted he was going to kill my whole family, my mother and sister,” he said, through a Spanish interpreter.
“I was in shock,” he said. “I had no other choice to accept and said yes.”
He told his mother and they left Honduras the next day. When Josue’s lawyer, Katherine Madison, asked if he ever reported the threat to the police he said no. “That was practically a suicide,” he said, explaining that the police are tied to the gang, because it has so much power.
Josue said his older sister later moved to Mexico because she was so afraid of the gang.
Winning asylum is a two-step process. You have to prove that you were persecuted, and that this persecution was on account of your race, religion, nationality, social group or political opinion. Madison, Josue’s attorney, argued that in Honduras, defying gangs is a risky political statement.
“They function in many ways as the de facto government of the areas where people like Josue lived,” she told WNYC/Gothamist, summing up the arguments she submitted to the judge. “They make rules. They charge basically taxes, they say who can live there and who can’t.”
And they’re known to kill people who don’t obey.
In her ruling, issued in August, Immigration Judge Oshea Spencer found Josue did experience persecution. But she denied his application for asylum. She said much of what he described “were threats and harm that exist as part of the larger criminal enterprise of the gangs in Honduras and not on the basis of any actual or perceived opposition to the gangs.”
Esperanza’s case
Esperanza’s attorney argued that her life was at risk because the gang member threatened Josue’s family. But Spencer didn’t find that specific enough. She wrote that the gang members “were motivated by their efforts to expand their drug trade, not the family relationship.” Among other cases, she referred to a recent decision by the current Attorney General, William Barr, that makes it harder for the relatives of someone who’s been threatened to win asylum.
Esperanza also lost on a separate claim that she deserved asylum because she was repeatedly beaten by Josue’s father. In court, she testified about years of abuse culminating in an incident in which he chased her with a machete. She said she couldn’t get the police to issue a restraining order, and said he kept threatening her after she moved to another town to stay with relatives.
Madison argued that women like Esperanza belong to a persecuted social group: they can’t get help from the authorities in Honduras because they’re viewed as a man’s property. The country is one of the deadliest places to be a woman; police are known to ignore complaints; and it’s extremely hard for women to get justice.
But Spencer ruled that there is no persecuted social group made up of “Honduran women who are viewed as property” for being in a domestic relationship.
Echoing the Sessions’ ruling, the judge said these categories “all lack sufficient particularity,” and called them “amorphous” because they could be made up of a “potentially large and diffuse segment of society.”
She also cited evidence submitted by the government that showed conditions in Honduras are improving for women. This evidence came from a 2018 State Department report on human rights in Honduras. Immigration advocates claim it’s been watered down from the much harsher conditions described in the last report from 2016. It’s also much shorter in length.
Jeffrey Chase, an immigration lawyer and former New York immigration judge, said it’s not surprising that Esperanza and Josue would each lose asylum. Judge Spencer only started last fall and is on probation for her first two years in the job.
“This was decided by a brand new judge who didn’t have any immigration experience prior to becoming an immigration judge,” he said, referring to the fact that Spencer was previously an attorney with the Public Utility Commission of Texas. He said she went through training which, “These days, includes being told that we don’t consider these to be really good cases.”
Sitting judges don’t talk to the media but Chase noted that they must consider the facts of each individual case, meaning the former Attorney General’s ruling doesn’t apply to all cases. He noted that some women who were victims of abuse are still winning asylum. He pointed to a case involving a Guatemalan woman who was raped by her boss. A Texas immigration judge found she did fit into a particular social group as a woman who defied gender norms, by taking a job normally held by a man.
During Josue and Esperanza’s trial, there was a lot of back and forth over their individual claims. A trial attorney from Immigration and Customs Enforcement questioned why Esperanza didn’t contact the police again after moving to another town, where she said her former partner continued to threaten her. Esperanza said it was because her brother chased him away and the police “don’t pay attention to you.”
The ICE attorney also asked Josue if his father was physically violent with anyone besides Esperanza. Josue said he did fight with other men. San Diego immigration lawyer Anna Hysell, who was previously an ICE trial attorney, said that could have hurt Esperanza’s case.
“The government was able to make the arguments that he didn’t target her because of being a woman that was in his relationship,” she explained. “He just was probably a terrible person and targeted many people.”
Hysell added that this was just her analysis and she wasn’t agreeing with the decision.
Attorney Anne Pilsbury said she believes Esperanza would have won her case, prior to the asylum ruling by Sessions, because she suffered years of abuse. But she said Josue would have had a more difficult time because gang cases were always tough. And like a lot of migrants, Josue had no evidence — he was too afraid to go to the cops. Pilsbury said immigration judges are even more skeptical now of gang cases.
“They’re getting so that they won’t even think about them,” she said. “They aren’t wrestling with the facts. They’re hearing gang violence and that’s it.”
She said Judge Spencer does sometimes grant asylum, and isn’t as harsh as other new judges. New York City’s immigration court used to be one of the most favorable places for asylum seekers. In 2016, 84 percent of asylum cases were granted. Today, that figure has fallen to 57 percent, according to TRAC at Syracuse University. Meanwhile, the government is forcing migrants to wait in Mexico for their immigration court cases or seek asylum in other countries before applying in the U.S., as the national backlog of cases exceeds one million.
Pilsbury, who founded Central American Legal Assistance in 1985, said immigration courts are now dealing with the result of a regional crisis south of the border that’s never been properly addressed since the wars of the 1980s.
“The anti-immigrant people feel it’s broken because people get to come here and ask for asylum and we feel it’s broken because people’s asylum applications aren’t seriously considered,” she explained. “We should be doing more to understand what’s going on in those countries and what we can do to help them address the chronic problems.”
Esperanza and Josue’s cases will now be appealed. Madison said she believes the judge ignored some of her evidence about gangs. She’s now turning to the Board of Immigration Appeals. However, it’s also controlled by the Justice Department — meaning the odds of getting a reversal are slim. If they lose again, the family can go to a federal circuit court which may have a broader definition of who’s eligible for asylum.
But Esperanza and Josue won’t be deported as long as their case is being appealed. On a late summer day, they seemed relaxed while sitting in a Brooklyn park. Esperanza talked about how happy she is that Josue is safe at his public high school, and can even ride a bike at night with his friends.
“He goes out and I’m always trusting the Father that just as he goes out, he comes back,” she said.
Even if they knew they would lose their asylum case, both said they still would have come to the U.S. because the risk of staying in Honduras was too great. Josue said the gang would definitely find him if he ever returned because their networks are so deep throughout the country. He’s now taking the long view. He knows there will be a Presidential election next year.
“It’s like a game of chess,” Josue said. “Any mindset can change at any moment. Maybe Trump changes his mind or maybe not. But I would have always made the decision to come.”
With translation assistance from Alexandra Feldhausen, Lidia Hernández-Tapia and Andrés O’Hara.
Beth Fertig is a senior reporter covering immigration, courts and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.
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CORRECTION: An earlier version of this posting incorrectly identified Beth’s network affiliation. She reports for WNYC.
By clicking on the link at the top and going to Beth’s article on The Gothamist, you will be able to get a link to the original WNYC audio broadcast of this story.
It’s not “rocket science.” Better, fairer outcomes were available that would have fulfilled, rather than mocked, our obligation to provide Due Process and protection under our own laws and international treaties.
Here’s how:
Esperanza’s claim is a clear asylum grant for “Honduran women” which is both a “particular social group” (“PSG”) and a persecuted group in Honduras that the government is unwilling or unable to protect.
Although the last two Administrations have intentionally twisted the law against Central American asylum seekers, Josue has a clear case for asylum as somebody for whom opposition to gang violence was an “imputed political opinion” that was “at least one central reason” for the persecution. See, e.g,https://www.jeffreyschase.com/blog/2018/6/3/3rd-generation-gangs-and-political-opinion.
In any event, on this record, Josue clearly showed that he faced a probability of torture by gangs with the acquiescence of the Honduran government, and therefore should have been granted mandatory protection by the Immigration Judge under the Convention against Torture (“CAT”).
The Immigration Judge’s assertion that things are getting better for women in Honduras, one of the world’s most dangerous countries for women where femicide is rampant, not only badly misapplies the legal standard (“fundamentally changed conditions that would eliminate any well founded fear”) but is also totally disingenuous as a factual matter. See, e.g.,https://www.nytimes.com/interactive/2019/04/05/opinion/honduras-women-murders.html.
Additionally, Honduras remains in a state of armed conflict. See, e.g.,https://www.tandfonline.com/doi/full/10.1080/23740973.2019.1603972?needAccess=true. Under an honest Government, granting TPS to Hondurans (as well as Salvadorans and Guatemalans affected by environmental disasters heightened by climate change) would be more than justified.
Under honest Government following the rule of law, well-documented cases like this one could be quickly granted by the USCIS Asylum Officer or granted on stipulation in short hearings in Immigration Court. Many more Central Americans could be granted CAT relief, TPS, or screened and approved for asylum abroad. They could thereby be kept off of Immigraton Court dockets altogether or dealt with promptly on “short dockets” without compromising anybody’s statutory or constitutional rights (compromising individual rights is a “specialty” of all the mostly ineffective “enforcement gimmicks” advanced by the Trump Administration).
Over time, the overwhelming self-inflicted Immigration Court backlogs caused by the Trump Administration’s “maliciously incompetent” administration of immigration laws (e.g., “Aimless Docket Reshuffling”) would be greatly reduced.
That, in turn, would allow the Immigration Courts to deal with cases on a more realistic timeline that would both aid rational, non-White-Nationalist immigration enforcement and provide real justice for those seeking protection under our legal system.
As I’ve said before, it’s not “rocket science.” All it would take is more honest and enlightened Government committed to Due Process, good court management, and an appropriate legal application of laws relating to refugees and other forms of protection. I doubt that it would cost as much as all of the bogus “enforcement only gimmicks” now being pursued by Trump as part of his racist, anti-migrant, anti-Hispanic agenda.
Poor judicial decision making, as well illustrated by this unfortunate wrongly decided case, not only threatens the lives of deserving applicants for our protection, but also bogs down an already grossly overloaded system with unnecessarily protracted litigation and appeals of cases that should be “clear grants.”
Contrary to the intentionally false “party line” spread by “Big Mac With Lies” and other corrupt Trump sycophants at the DHS and the DOJ, a much, much higher percentage, probably a majority, of asylum applicants from the Northern Triangle who apply at our Southern Border should properly be granted some type of legal protection under our laws if the system operated in the fair and impartial manner that is Constitutionally required. The Trump Administration aided by their sycophants and enablers, all the way up to the feckless Supremes, are literally “getting away with murder” in far, far too many instances.
Consequently, quickly identifying and granting relief to the many deserving applicants would be a more efficient, humane, and lawful alternative to the “Kill ‘Em Before They Get Here” deterrence programs being pursued by Trump, with the complicity of the Supremes, the Ninth Circuit, and some of the other Federal Circuit Courts who have been afraid to put a stop to the extralegal nonsense going on in our Immigraton Courts, detention centers (the “New American Gulag”), our Southern Border, and countries like Mexico, El Salvador, Guatemala, and El Salvador where we are basically encouraging extralegal abuses and gross human right violations against migrants. It will eventually come back to haunt our nation, or whatever is left of our nation after Trump and his gang of White Nationalist thugs, supporters, appeasers, apologists, and enablers, are done looting and destroying it.
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
The Immigration Court’s active backlog of cases just passed the million case mark. The latest case-by-case court records through the end of August 2019 show the court’s active case backlog was 1,007,155. If the additional 322,535 cases which the court says are pending but have not been placed on the active caseload rolls are added, then the backlog now tops 1.3 million.
During the first eleven months of FY 2019, court records reveal a total of 384,977 new cases reached the court. If the pace of filings continues through the final month of this fiscal year, FY 2019 will also mark a new filing record.
While much in the news, new cases where individuals have been required to “Remain in Mexico” during their court processing currently make up just under 10 percent (9.9%) of these new filings. These MPP cases comprise an even smaller share – only 3.3 percent — of the court’s active backlog.
As of the end of August, a total of 38,291 MPP cases had reached the court, of which 33,564 were still pending.
For the full report – including links to online query tools where readers can drill into countless additional details covering all 4.5 million court filings since FY 2001, the recent MPP component of these filings, and the court’s over 1 million active case backlog – go to:
Additional free web query tools which track Immigration Court proceedings have also been updated through August 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
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The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to http://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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The futility of throwing more money into this badly broken system has become obvious. Without an independent, Article I U.S. Immigration Court, run by judges who direct the activities of the administrators rather than being run by politicos, there simply will not be any semblance of competent professional management of this system, certainly not under this Administration.
The Administration stubbornly refuses to take the necessary step of responsibly exercising “prosecutorial discretion” to reduce the backlog to a manageable size without “gimmicks.”
It’s equally obvious that Congress needs to enact some type of realistic legalization program that will remove cases of individuals with a period of productive residency and their families from the “active” docket and forestall the further mess that would be created by the absolute insanity of the “Gonzo plan” of restoring properly “administratively closed” cases to the active dockets.
The system is calling out for help. Unfortunately, those cries are being ignored by both Congress and the Article III Courts who are the only ones currently capable of fixing the system.
When a 2-year-old Guatemalan boy had trouble staying silent in an immigration courtroom, the judge pointed his finger at him.
“I have a very big dog in my office, and if you don’t be quiet, he will come out and bite you,” the judge, V. Stuart Couch, a former Marine, yelled at the toddler in a 2016 hearing, according to a formal complaint shared by the Charlotte Center for Legal Advocacy and first reported this week by Mother Jones.
“Do you want him to bite you?” Couch asked.
The boy, his mom and their advocate were all soon sobbing. Couch later acknowledged that he “did not handle the situation properly,” according to the judge who investigated the complaint, Deepali Nadkarni.
Clearly, Couch didn’t have a child’s well-being in mind on that day. But ignoring the welfare of our young is a day-to-day problem in America, where our children are falling behind those in other wealthy countries.
On Thursday, 10 Democratic presidential candidates will debate. It would be a natural opportunity to provoke a national conversation on the subject. But a question about child poverty hasn’t been asked at a presidential debate in 20 years, not since a Republican primary debate in 1999, according to the Children’s Defense Fund.
Presidential candidates have been asked about the World Series, about cursing in movies, even about flag lapel pins more recently than they have been questioned about child poverty. We’ve had 147 presidential debates in a row without a single question on the topic (here’s a petition calling for more questions on the issue). I hope Thursday’s debate won’t be the 148th.
UNICEF says America ranks No. 37 among countries in well-being of children, and Save the Children puts the United States at No. 36. European countries dominate the top places.
American infants at last count were 76 percent more likely to die in their first year than children in other advanced countries, according to an article last year in the journal Health Affairs. We would save the lives of 20,000 American children each year if we could just achieve the same child mortality rates as the rest of the rich world.
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Read Kristof’s complete op-ed at the link.
Couch is one of America’s worst judges. One might therefore fairly ask why he recently was “rewarded” for his bias, unprofessionalism, and documented poor performance when Trump Sycophant Barr “elevated” him to the appellate bench? Perhaps, so he can abuse more women and children across the country?
But, as the Supremes and the GOP have decided to endorse and encourage child abuse, the question is whether the Dems can get it together to end the abuse before it’s too late for America and the world.
Child abusers like Trump, Couch, Barr, and the gang over at DHS are used to getting away with it. They are encouraged by a do nothing Congress, complicit Federal Judges, and a Trump base that has declared war on traditional American values and human decency. But, the consequences of their misconduct, and the unwillingness of the US political and legal system to stand up for children, won’t end well in the long run.
In the meantime, remember the names of the abusers and their enablers, some of them serving in our highest court and as GOP Senators and Representatives.
LAREDO, Texas — Workers climbed atop a massive new U.S. immigration tent court on the banks of the Rio Grande at dawn Monday, adding the last few nails to the white roof, as generators hummed.
A line of people snaked across the nearby border bridge, streaming into the U.S. from Mexico to travel, work and go to school, passing by the fenced walkway to the new 36,000-square-foot tent court complex.
Months after construction began, much about Homeland Security’s $25-million tent courts in south Texas remains a mystery, even to lawyers who expect to represent their migrant clients as soon as this week. What day the hearings will begin, where lawyers should file paperwork and even whether attorneys can meet their clients beforehand — all remain unanswered questions in this border town.
“The question is who’s going to have jurisdiction over these courts?” said Leidy Perez-Davis, Washington-based policy counsel for the American Immigration Lawyers Assn., whose members represent migrants scheduled to appear at the tents. “There’s not a lot of transparency. The confusion is large and wide.”
Tent courts were erected here and in Brownsville, Texas, during the summer by U.S. Customs and Border Protection at a cost of $25 million, so far. At least 20 courtrooms are expected to process 200 to 250 people a day, according to Laredo city spokesman Rafael Benavides. The tent court in Brownsville is expected to handle about 720 migrants a day, according to the federal contract.
The city had offered to lease Homeland Security an air-conditioned, 21,000-square-foot office building for 18 months for only $1, but Homeland Security officials declined the offer, they said, “because of the importance of having an operational hearing facility within the following two months to ensure timely hearings for migrants.” The city had told Homeland Security that the building would be ready in time, but the offer was still rejected.
While federal immigration courts are public, the tent courts are unique because they were built on Homeland Security land. Homeland Security facilities generally are not open to the public beyond occasional press tours, meaning the public and the media could potentially be prevented from observing the hearings.
Access became a concern this summer after migrant advocates and the office of the inspector general reported squalid conditions at migrant holding areas in several south Texas Border Patrol stations. Homeland Security and U.S. Customs and Border Protection officials did not respond to requests from The Times to visit the tents or provide more information about how they will operate.
Immigration courts built inside other Homeland Security facilities, such as adult and family detention centers, are open to the public, though Homeland Security screens lawyers, reporters and other members of the public, in some cases banning them or requiring them to apply for access days in advance.
The tent courts are expected to exclusively host hearings for migrants who have been returned to Mexico to await the outcome of their asylum cases under the Trump administration’s “Remain in Mexico” program, which started in California in January and expanded to Laredo in July. The program has resulted in the return of more than 37,000 migrants to Mexico, many now stuck in overcrowded shelters or makeshift border encampments.
In recent days, the Border Patrol returned an average of 125 migrants daily to Nuevo Laredo. Borderwide, roughly 1,200 migrants are returned to Mexico daily, officials told Laredo Mayor Pete Saenz.
Immigration judges have been hearing Remain in Mexico cases in San Diego and El Paso for months, but in bricks-and-mortar courtrooms, open to the public as space allows.
Rep. Henry Cuellar, a Democrat who represents Laredo, and Saenz said they were told by Homeland Security officials that immigration judges in San Antonio would conduct the tent court hearings via videoconference starting Sept. 16, which is Independence Day, a national holiday in Mexico. Migrants’ attorneys said at least one person was scheduled to appear before that, on Thursday.
Adding to the confusion, attorneys said they have been unable to determine which federal agency controls access to the tents and whether they would be allowed to meet with asylum seekers there privately before a client’s hearing.
“It’s definitely going to affect the ability to represent clients and to help these asylum seekers. Attorneys have no idea where to file the paperwork necessary for these hearings; they don’t know what court will have jurisdiction; they don’t know if they’re supposed to go to the court where their client is or where the judge will be. We don’t know if there will be interpreters,” Perez-Davis said. “What we’re going to see is massive confusion.”
Denise Gilman, co-director of the immigration clinic at the University of Texas School of Law, said she has been visiting migrants in Nuevo Laredo, including one scheduled to appear at the tent courthouse this week. She said the clinic did not plan to represent them because the logistics made it impossible to meet migrants before their hearings.
“I just don’t want to partake of a system that is not set up to adjudicate but, rather, to exclude…. It is really just a mock-up of a court,” she said.
A spokeswoman for the federal immigration courts referred questions about the tent courts to Homeland Security. Spokesmen for Homeland Security and Border Patrol said they were still trying to clarify who would be given access.
A Homeland Security official said the agency “understands the need to protect the privacy and due process rights of individuals who will appear at these locations” and promised that the agency would quickly “determine how best to balance these rights with the special security issues that we must confront at an active port of entry.”
Cuellar, a former lawyer who toured the tents in July, said they sit alongside a dozen air-conditioned metal containers where he was told lawyers would be allowed to meet with their clients. He plans to tour the tent court on Tuesday. “I want to make sure we look at what’s the process there, where they meet with an attorney, where the videoconference is going to be.”
Cuellar said Homeland Security’s decision to reject the city’s offer of near-free use of a municipal building left him feeling cynical.
“It’s a waste of taxpayers’ money,” Cuellar said. “They’re trying to get visuals: tents, barbed wire, National Guard, wall…. They’re manufacturing a crisis.”
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Wasting taxpayer money, destroying Due Process, making a mockery out of the U.S. Justice system. Par for the course under the Trump Administration and its enablers.
When will Congress or the Article III courts put a stop to this illegal and unconstitutional “downward spiral” into “Third World Authoritarianism?”
In the meantime, join the New Due Process Army and fight for the restoration and improvement of our Constitutional rights and human decency.
Catherine Rampell Opinion Columnist Washington Post
Catherine writes in the Washington Post:
You’ve heard of the Wars on Drugs, Terror, Poverty, even Women. Well, welcome to the War on Children.
It’s being waged by the Trump administration and other right-wing public officials, regardless of any claimed “family values.”
For evidence, look no further than the report released Wednesday by the Department of Health and Human Services’s own inspector general. It details the trauma suffered by immigrant children separated from their parents under the Trump administration’s evil “zero tolerance” policy.
Thousands of children were placed in overcrowded centers ill-equipped to provide care for them physically or psychologically. Visits to 45 centers around the country resulted in accounts of children who cried inconsolably; who were drugged; who were promised family reunifications that never came; whose severe emotional distress manifested in phantom chest pains, with complaints that “every heartbeat hurts”; who thought their parents had abandoned them or had been murdered.
Such state-sanctioned child abuse was designed to serve as a “deterrent” for asylum-seeking families, as then-Chief of Staff John F. Kelly and other administration officials made clear.
Of course, they failed to recognize just how horrific are the conditions these asylum-seeking children are fleeing — conditions that further decreased HHS’s ability to adequately care for them.
“Staff in multiple facilities reported cases of children who had been kidnapped or raped” back in their home countries, the IG report states. Other children witnessed family members raped or murdered.
But hey, Trump believes these kiddos must be punished further for the crime of seeking refuge — a.k.a., the “invasion” of America.
Despite this and other abundant evidence that government facilities are not able to care for children for extended periods, last month, the administration also announced a new policy that would allow it to keep children (along with their families) in jail-like conditions for longer periods of time.
This is hardly the only way the administration has knowingly enacted policies that harm children.
In August, it finalized a rule that would make it more difficult for immigrants to receive green cards if they have used certain safety-net services they’re legally entitled to — or if government officials suspect they might ever use such services. Confusion and fear about the policy and whom it affects abound. This has already created a “chilling effect” for usage of social services, with immigrant parents disenrolling even their U.S.-citizen children just to be safe.
Last fall, for instance, I interviewed a green-card-holding mother who decided not to enroll her underweight newborn in a program that would have provided free formula (even though the program in question was not mentioned in the rule, and the baby is a U.S. citizen). Huge recent declines in children’s Medicaid and Children’s Health Insurance Program enrollment are also believed to be at least partly a result of fears about this policy change.
If Your Dog Does This, It Could Be Them Signaling A Warning
And lest you think only immigrant or brown children are being targeted in this war: U.S. servicemembers’ children, of all sorts of backgrounds, are being hurt, too.
The Trump administration is siphoning billions from various defense projects to fund border wall construction, despite promises that Mexico would pay for it. This might sound unlikely to affect kids, but somehow the Trump administration found a way. Among the projects losing funds are schools for the children of U.S. servicemembers based in Kentucky, Germany and Japan, and a child-care center at Joint Base Andrews in Maryland.
Trump’s proposed federal budgets have likewise axed funding for other programs that serve children, such as subsidized school meals and Medicaid. Indeed, both federal and state GOP officials more broadly are still working to kill the Medicaid expansion, as well as other Affordable Care Act provisions that benefit kids.
The GOP has likewise ignored the pleas of children who want their lives protected from gun violence, or who want their futures protected from a warming planet.
A year ago, I offered a suggestion : that Democrats make children the theme of their midterm campaign. They mostly ignored me and still did okay. Nonetheless, I’m re-upping it.
Because even without Trump’s baby jails and proposed Medicaid cuts, our country’s emphasis on children’s well- being is seriously deficient.
Last year, for the first time on record, we spent a greater share of the federal budget servicing the national debt than we did on children, according to an analysis out next week from First Focus on Children. Spending on children as a share of the federal budget is also expected to shrink over the coming decade, crowded out by both debt service and spending on the elderly.
This is despite the fact that spending on children (especially low-income children) has among the highest returns on investment of any form of government spending.
Whatever the opposite of Trump’s War on Children is, that’s what Democrats should be running on.
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Thanks, Catherine, for speaking out so clearly and articulately about what has become our #1 National Disgrace: Trump’s War On Human Decency & Future Generations and its sleazy cast of supporting characters like Pence, Kelly, Miller, Nielsen, “Big Mac With Lies,” Homan, Albence, Morgan, “Cooch Cooch,” “Gonzo Apocalypto,” Barr, Cotton, Graham, and others with their glib immorality and disregard for truth, our Constitution, the rule of law, and basic human values.
Who thought the U.S. would ever stoop so low — to use our government’s power and might to abuse defenseless, already traumatized, and highly vulnerable children. (Catherine’s article does’t even get into how, with the help of scofflaw Attorneys General Sessions and Barr and some complacent Article III Judges, the Administration has manipulated asylum law and Immigration “Court” procedures to deny children and other asylum seekers the legal protection to which they are entitled under U.S. and international laws.)
There are many groups out there in the “New Due Process Army” fighting every day against this kind of outrageous behavior by our elected leaders, their corrupt cronies, and their many “go along to get along” enablers in the bureaucracy. Join or donate to one today!
The war to save America and humanity from Trump’s vile and cowardly agenda is one that we can’t afford to lose: For the sake of future generations!
Confusion, delays as videos replace interpreters at immigrants’ hearings
By Tal Kopan
WASHINGTON — The Trump administration has been slow to implement its new policy replacing in-person interpreters with informational videos at immigrants’ initial hearings, but the switch is causing delays and confusion where it has been introduced, including in San Francisco, observers say.
So far, the policy has been rolled out to courts in just four cities: San Francisco, Los Angeles, Miami and New York.
It’s not clear when the policy will expand. A spokesman for the Justice Department division that oversees the courts said the agency “is taking into consideration all feedback before additional translation videos are created and the program is rolled out to further immigration courts.”
Judges and attorneys observing the courts say the change has mostly served to delay proceedings, by adding lengthy steps and information that is not necessary for all migrants to hear.
After the videos are shown, each immigrant is called up for his or her individual hearing and may have questions for the judge. Although judges are now barred from scheduling in-person interpreters for the hearings, at times interpreters can be found on short notice in the courthouses. When none is available, judges must try a telephone service to reach an interpreter.
At issue are what are called master calendar hearings — immigrants’ first appearance in courts that determine whether they can remain in the U.S. The typically rapid-fire sessions serve to inform migrants of their rights and the process they will go through. Judges also schedule their next hearings.
Many immigrants in the system are Spanish speakers, but it’s also common for Chinese, Creole, and several indigenous languages from Central America and around the world to be spoken in courtrooms.
Judges in courts that have made the change are required to play either a Spanish-dubbed or English-language video for immigrants who do not have attorneys representing them. The 20-minute video runs through a lengthy list of technical legal advisories. Videos in other languages are not yet available, but the Justice Department has plans to introduce them.
Most of the dozens of immigrants going through their initial hearings Tuesday in San Francisco were shown the video. Many of them had attorneys present who translated, and others were able to use a Spanish-speaking interpreter who was on hand. Languages spoken in court included Spanish, Punjabi, Hindi, Mandarin and Fijian.
One hearing in the courtroom of Judge Arwen Swink involved a Mongolian woman who needed translation. After about five minutes, Swink was able to secure an interpreter in her language through the telephone service Lionbridge.
Swink asked the interpreter to introduce himself to the woman, who did not have an attorney, to ensure that she understood him. The interpreter said he had trouble hearing, but court staffers brought the microphone closer to the woman and the session was able to proceed.
With an interpreter in the room, such a hearing can take five minutes or less. The woman’s case took 15 minutes.
The Chronicle has obtained transcripts of the separate videos that are played for immigrants who are in detention and not in detention, as well as an FAQ handout they receive.
Roughly a fifth of the videos are devoted to a discussion of “voluntary departure,” under which immigrants can go back to their home country without being penalized if they try to come back someday. The videos also warn immigrants of the criminal consequences of trying to re-enter the country illegally after being deported.
Legal experts and veteran immigration judges say neither topic was commonly brought up in initial hearings before the videos were introduced because they are most relevant at the end of cases, if migrants do not prevail in their bid to remain in the U.S. Several said they feared the emphasis on voluntary departures and criminal penalties could prompt immigrants with valid claims to stay in the U.S. to waive their right without fully understanding what they’re doing.
The Justice Department did not consult with the union that represents immigration judges before making the change, and has proceeded despite ongoing bargaining with the group. The result is “lots of confusion, constantly changing parameters of the program by the agency and frustration among many judges,” said Ashley Tabaddor, president of the National Association of Immigration Judges and an immigration judge in Los Angeles.
Tabaddor added that courts in New York and Miami have had trouble securing help by phone, and that cases have been delayed in the Los Angeles court because of shortages of interpreters.
Amiena Khan, the union’s executive vice president and a judge in New York, said the videos make for a “really long day” for unrepresented immigrants who have to wait through proceedings for all migrants who have attorneys before watching a 20-minute video. She finds herself repeating or adding key advisories when immigrants are called before her.
“There was no problem that needed to be solved by the introduction of the video,” Khan said. “What I think really bothers me is that it’s mandatory. I think if it was discretionary as a tool for the judge to use, it could be helpful. (But) it takes away our judicial independence as to what method to employ to best get through the day’s docket.”
Khan and former immigration Judge Jeffrey Chase, who reviewed the transcripts, also noted that the videos do not include information that would be important for immigrants, including that they have only one year to formally apply for asylum in the U.S.
“The information provided is misleading in a way that can lead to a noncitizen’s removal,” said Chase, who now volunteers for organizations that provide legal assistance to immigrants.
Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, said the transcripts show that the videos use “scare tactics” instead of informing immigrants of their rights. The videos warn immigrants against filing frivolous asylum claims, but don’t explain what asylum is, she noted.
“The videos provide an overwhelming amount of information that no one can easily digest in one setting,” Lynch said. “What’s more disturbing is that the content itself only tells one side of the story.”
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Click on the link for Tal’s full story with links to actual transcripts of this “parody of justice.”
This is DOJ/EOIR’s “malicious incompetence” in action. Accurate interpretation is essential to Due Process and fundamental fairness as well as the hallmark of a competently and professionally run court system. Somewhere along the line, the money for interpreters was frittered away by what passes for “management” at DOJ/EOIR. And, let’s not even think about the waste of money on absurd “Immigration Judge Dashboards” while the two decades old overwhelming need for a functional nationwide e-filing system goes unmet.
Right now, Congress is paralyzed. When are the Article III Courts going to wake up, get some backbone, and enforce the U.S. Constitution by putting an end to this so-called “court system” run by prosecutors that provides not even a semblance of fair and impartial (and at least minimally competent) adjudication? No more “Clown Court!”🤡
A string of directives from President Donald Trump’s Justice Department that have reduced the authority of immigration judges and limited their control of their courtrooms has given new urgency to calls for a complete overhaul of the immigration courts.
Those courts now exist within the Justice Department and answer to the attorney general. Proposals for Congress to exercise its constitutional powers and create separate, independent immigration courts have long been dismissed as costly pipe dreams. But under Trump, judges and others in the court system say they are facing an unprecedented effort to restrain due process and politicize the courts with the president’s hard line on immigrants and demands for deportations.
“It’s time for the Department of Justice and the immigration courts to get a divorce,” said Jeremy McKinney, an attorney who is a vice-president of the American Immigration Lawyers Association.
In a letter in July, the immigration lawyers joined the American Bar Association, the Federal Bar Association and the immigration judges’ union to call on Congress to “establish an independent court system that can guarantee a fair day in court.” The idea is percolating in the Democratic presidential contests, with three candidates—Julián Castro, Beto O’Rourke and Sen. Elizabeth Warren—presenting specific plans. Another candidate, Sen. Kirsten Gillibrand, drafted a bill last year to make the change.
The chairman of the House Judiciary Committee, Rep. Jerrold Nadler, a Democrat from New York, said he will hold hearings on the proposals this fall. There is little chance such a plan would have traction in the Republican-controlled Senate.
Under the proposals, the immigration courts would become a stand-alone agency that would not be run or controlled by outside officials, with the goal of insulating judges from political pressure by any administration.
Department of Justice officials say they are working on a fast track to modernize courts that have been relegated to institutional backwaters. They oppose any plan to separate the courts, saying it would create a bureaucratic and legal morass that would do little to resolve massive backlogs and other chronic problems.
The costs and logistical hurdles “would be monumental and would likely delay pending cases even further,” said Kathryn Mattingly, a Justice Department spokeswoman. The proposals present “significant shortcomings, without any countervailing positive equities,” she said.
But several judges, including three who spoke anonymously because they are not authorized to make public statements, said the Trump administration has pushed the courts too far. The latest salvo emerged from a thicket of legal language in a rule issued Monday by the Justice Department. In a major change, it gives the official in charge of running the courts, who is not a sitting judge, the last word in appeals of some immigration cases. It also gave that official—the director of the Executive Office for Immigration Review, the formal name of the immigration court agency—expanded power to set broadly-defined “policy” for the courts.
The judges’ union reacted with alarm. Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said the rule “removes any semblance of an independent, non-political court system.”
The judges’ association was already reeling after receiving what amounted to a declaration of war on Aug. 9, when the Justice Department filed a decertification petition that would bar judges, who are department employees, from being represented by the union.
Former Attorney General Jeff Sessions used his authority extensively, eliminating judges’ ability to close deportation cases and narrowing the path to asylum for migrant families from Central America fleeing domestic abuse, gang violence and cutthroat cartels. In a recent decision, Attorney General William Barr went further to deny families asylum, overruling long-standing opinions by judges.
Late last year the current director of the courts, James McHenry, under pressure from the White House, ordered judges in 10 busy courts to give priority to cases of families seeking asylum, pushing those cases to the front of their dockets while postponing others. Many judges are frustrated with the “rocket dockets,” finding that they deny many immigrants time to prepare for hearings while unreasonably delaying other cases, further stretching out backlogs.
In recent months McHenry, citing budget constraints, began to limit the availability of language interpreters for initial hearings, where judges see immigrants who speak many different languages. Translators have been replaced with videos providing boilerplate explanations of an immigrant’s rights. Judges said the videos are befuddling to immigrants in their first encounter with the court, and take away time for judges to address each person individually.
What really antagonized many judges was the imposition of quotas for finishing cases, tied to their performance reviews. Since last October, judges must complete at least 700 cases a year, with less than 15 percent of decisions being sent back to them by appeals courts. Time limits were set for many other decisions.
To remind judges of their standing, Justice officials designed a speedometer that sits on judges’ computer screens, with green marking numbers of decisions that meet the metrics and stoplight red indicating where they are lagging.
“So you sit down and you see that dashboard staring at you, updated every day, and you have 50 motions on your desk to decide whether to continue a case,” said Denise Noonan Slavin, who retired as an immigration judge in March after 24 years on the bench. The metrics, she said, inevitably discourage judges from granting more time for cases, even if an immigrant presents a valid argument.
“If judges get into that red, they can lose their job,” Slavin said.
Last October the Justice Department initiated performance metrics for immigration judges (referred to as IJs), setting benchmarks that they must complete at least 700 cases a year and finish other decisions within certain time limits. Speedometers sit on judges’ computer screens, with green showing they are on track with their cases and red signaling they are far behind. U.S. DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Most proposals to reconfigure the courts would have Congress act under Article One of the Constitution. The courts would become a separate agency governed by judges, but would remain within the executive branch. There is no appetite for the vast costs and litigation it would take to move the courts to the federal judiciary.
Reformers cite the example of the tax court, which Congress set up in 1969 to have independent judges deciding federal tax disputes, taking them out of the grip of the Internal Revenue Service. Similarly, Judy Perry Martinez, president of the American Bar Association, said in an interview that the immigration courts cannot be fully impartial while they are subordinate to the attorney general, the nation’s top prosecutor.
The Federal Bar Association, which has written a model bill for the transformation, insists it would not be as daunting as it sounds. The bill is drafted “with the idea of simply lifting the courts,” and their budget, out of the Justice Department, said Elizabeth Stevens, chair of the organization’s immigration law section. Under this plan, the courts would remain in existing facilities and current judges would continue to serve for four years before being re-appointed by Senate-confirmed appeals judges to serve in the new system.
Proponents have a harder time explaining how the transition would avoid even more of a bureaucratic sinkhole than existing courts, where the backlog stands at more than 930,000 cases. But Slavin said independent judges would take back their ability to manage cases efficiently, which she said micromanagement under Trump had eroded.
Advocates have few illusions that Trump and a Congress locked in immigration feuds will address their complaints soon. But they want to get the issue on the election year agenda, contending that Democrats and some judicial conservatives among Republicans could vote for an eventual bill.
The Justice Department can be expected to resist. But McKinney, from the lawyers association, said that with the sense of siege in the courts, “Suddenly something that was a dream or a theory is becoming something that could become a reality.”
Julia Preston covered immigration for The New York Times for 10 years, until 2016. She was a member of The Times staff that won the 1998 Pulitzer Prize for reporting on international affairs, for its series that profiled the corrosive effects of drug corruption in Mexico. She is a 1997 recipient of the Maria Moors Cabot Prize for distinguished coverage of Latin America and a 1994 winner of the Robert F. Kennedy Award for Humanitarian Journalism.
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Lost in the shuffle: With all the money poured down the drain on mindless schemes to DENY DUE PROCESS rather than enhance it, after 19 years of “study and development,” EOIR IS STILL WITHOUT A FUNCTIONAL E-FILING SYSTEM!
Plenty of money for absurd “Judicial Dashboards;” none for even minimally competent court administration. And, how about the reduction in essential interpreter services mentioned in Julia’s article? Talk about “malicious incompetence” in action!
Unfortunately, however, the Fourth Circuit’s ruling in Zuniga Romero v. Barr currently only applies in the Baltimore, Arlington, and Charlotte Immigration Courts. This leaves the rest of the country in the type of mass confusion and uncertainty that the Trump Administration strives to create.
It’s past time for the Article III Courts to do their duty, put this patently unconstitutional mess out of its misery, and appoint a “Special Master” to restore at least some semblance of Due Process, fundamental fairness, impartiality, quasi-judicial independence, and competent court management to this system pending Congressional reforms to comply with the Constitution.
Most important: judicial intervention might save some human lives that will otherwise be lost as a result of the “malicious incompetence” with which the Trump Administration regularly has abused the “captive” U.S. Immigration Courts.
Shakeup of immigration court system threatens migrants’ due process
Migrants may soon have a much harder time finding lawyers and understanding their rights in immigration court, as the Trump administration pursues a major overhaul of the agency that oversees those proceedings.
The crucial office that provides basic legal information to migrants and helps connect some of them to pro-bono immigration lawyers will be merged into a Trump-created unit widely viewed as the nerve center of his immigration power grab. Though Friday’s reorganization rule makes no specific threat to shutter those legal assistance programs, the president has wanted to kill them for more than a year.
The bureaucratic reshuffle leaves the assistance programs “buried deep in the bowels” of an agency that today “never does anything without some ulterior political motive relating to the restrictionist immigration agenda,” retired immigration judge Paul Schmidt told reporters Friday.
The regulations concern the Executive Office of Immigration Review (EOIR), where the work of applying immigration laws to individual human cases gets done. In addition to burying the legal-assistance work in a team Trump created, the rule endows EOIR’s director with vast new power to change how immigration laws are applied.
The proposal “shows [the] Trump Administration’s ‘weaponization’ of EOIR as a means of implementing restrictionist policies by precedent decision without going through legislation or rule making,” Schmidt told reporters in an email.
Immigration courts, despite their name, are not independent judicial forums. And because deportation is a civil proceeding rather than a criminal one, migrants who come before the courts are not guaranteed counsel.
Any given migrant’s ability to vindicate the rights they do have in immigration court therefore ends up resting, in many cases, with the presiding judge. If the law says a given migrant’s case might merit a stay of deportation or other relief, and an immigration judge applies the law accordingly, the system slows down and fewer people are evicted from the country.
The Trump administration has repeatedly pushed immigration judges to set aside those legal niceties in favor of rapid removal orders for almost everyone they see. Judges now face discipline if they fail to clear 700 cases per calendar year, a speed judges have repeatedly said makes a mockery of due process.
The big winner in Friday’s order is EOIR’s new Office of Policy, created at the start of President Donald Trump’s term. That team will take over management of a key legal orientation program for giving migrants a basic overview of the legal process they’re facing and the rights they have within it.
The Office of Policy has become the prime mover behind various Trump efforts to create a deportation assembly line that favors speedy removals over the fuller individual consideration envisioned in immigration law, experts said.
“The Office of Policy… has in many ways led the Trump administration’s agenda to reduce the independence of the immigration court system,” American Immigration Council policy analyst Aaron Reichlin-Melnick said in an interview.
Currently, EOIR’s Office of Legal Access Programs helps link some migrants to pro-bono immigration attorneys as part of its legal orientation work. Having a lawyer “is arguably the single most important factor in determining whether someone is allowed to remain in the United States” at the conclusion of their immigration case, Reichlin-Melnick said.
The new rule moves the pro-bono program into the Trump-created policy office, along with the legal orientation system that’s meant to give migrants without attorneys a fighting chance.
There is nothing in the rule that says the DOJ is killing the pro-bono system or the legal orientation program, Reichlin-Melnick stressed.
“But we know in the past this is something the administration has gone after,” he said, noting that the White House tried to defund the legal orientation work in 2018 only for a bipartisan coalition of lawmakers to insist it continue.
“It’s a popular program with pretty much everybody,” he said, “except those inside the Trump administration who think we shouldn’t be spending money on helping people know their rights, because that slows things down.”
The same Office of Policy is widely blamed for concocting the 700-case-per-year standard that judges and experts view as an intentional demolition of immigrants’ due process rights. It is also seen as the driving force behind a new piece of technology that displays a speed gauge on judges’ desks while they work, glaring red when they take the time to explore factual disputes or delve into process issues of a given case and fall behind the administration’s speed requirements.
“That kind of pressure creates problems, even if it doesn’t mean that people are going to explicitly deny cases because of it,” Reichlin-Melnick said. “Even the most well-minded people are affected by someone essentially standing behind them tapping their watch.”
The case-completion rule in question technically came from a different EOIR office. But Trump’s new policy office is understood to have crafted it and passed it to the appropriate internal authority to promulgate.
These maneuvers “create the appearance of coercion” of a professional legal staff who are responsible for applying the law to a complex array of individual circumstances, Reichlin-Melnick said. A political team that isn’t getting the results it wants from immigration courts when they scrutinize the facts is turning to threats – judges can be denied raises or terminated outright over the running-clock rules – and increasing the authority its Office of Policy holds over those judges.
The new rule “raises a number of concerns about conflict of interest that could play out. Maybe they won’t – at this point it’s a little bit premature to panic, or to make large declaratory statements about how this rule will affect the process,” he said. “But it certainly raises concerns.”
Former immigration judge Schmidt was blunter.
The new policy office’s “primary role appears to be to ensure that EOIR functions as an adjunct of DHS Enforcement and that any adjudication trends that enhance Due Process or vindicate Immigrants rights are quickly identified so that they can be wiped out by precedents or policy changes,” Schmidt wrote.
“Look for the [EOIR] Director over time to reinsert himself in the adjudicative activities of EOIR,” he wrote, “for the purpose of insuring subservience to [the] Administration’s political enforcement priorities.”
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Thanks, Alan, for “telling it like it is.”
Pro bono lawyers have been very successful in both helping asylum applicants vindicate their rights and winning cases. They have also given those who lose before the Immigration Judge the ability to exhaust their remedies before the BIA and challenge wrongful denials in Circuit Courts. Almost every day, one or more Circuit Courts find that the BIA has erred or improperly cut corners in some way.
The success of the pro bono program in achieving asylum and other forms of protection is what the White Nationalists in the Trump Administration hate. They don’t like their immorality and illegality constantly exposed to public view. They would much rather “beat up on” defenseless, unrepresented applicants who can’t even understand English, let alone understand the system and the hyper-technical, intentionally restrictive criteria confronting them. Also, lots of denials, even if completely unfair, bolsters the Administration’s false statistical claim that most asylum claims are without merit.
PWS “QUICK TAKES” ON EOIR INTERIM REORGANIZATION RULE
Enhances role of relatively new “Office of Policy” (“OP”)
Remarkable because as a quasi-judicial court system, EOIR really is not supposed to be “making policy” except through BIA precedents
Shows Trump Administration’s “weaponization” of EOIR as a means of implementing restrictionist policies by precedent decision without going through legislation or rule making
Enhances policy role of Director, since Director controls OP
OP primary role appears to be to ensure that EOIR functions as an adjunct of DHS Enforcement and that any adjudication trends that enhance Due Process or vindicate Immigrants rights are quickly identified so that they can be wiped out by precedents or policy changes
Diminishes role of Office of Legal Assistance Programs (“OLAP”)
OLAP’s primary mission is to enhance and ensure maximum representation for migrants in Removal proceedings
That mission directly conflicted with the Administration’s use of EOIR as a “Deportation Railroad”
OLAP is eradicated from the regulations and organizational chart and buried deep in the bowels of OP
Look for OLAP to be slowly strangled and its functions in assisting migrants and providing them information and self-help materials in going through the Immigraton Court process to be reduced or eliminated
OP can be expected to concentrate instead on how to limit migrants’ access to pro bono counsel and to make practice before the Immigration Courts as non-user-friendly as possible to discourage representation and expedite removals of clueless unrepresented migrants
Disingenuously designates BIA Members as “Appellate Immigration Judges”
As their authority to act as fair, impartial, and independent adjudicators is diminished to lowest level in BIA history, “bogus retitling” appears intended to create an “appearance” of enhanced status of “AG’s patsies” before Article III Appellate Courts in support of DOJ’s arguments for high degree of deference and diminished scrutiny from Article IIIs
Uses administrative gobbledygook and slight of hand to give the Director individual case adjudication authority in certain instances where BIA’s “Mickey Mouse” adjudication deadlines are not met
Back in 1995 (when I was appointed) the DOJ separated the functions of the Director and the BIA Chair, which until then had been merged in the same position
Result of a perceived conflict of interest in having Director directly responsible to the AG while also having quasi-judicial responsibilities as BIA Chair
Beginning to “re-merge” adjudication with administration reflects Trump DOJ’s disregard of ethical considerations in immigration adjudication and intent to use EOIR as enhanced enforcement tool
Remarkably, the Director could actually issue precedent decisions in some instances
Look for the Director over time to reinsert himself in the adjudicative activities of EOIR for the purpose of insuring subservience to Administrations’s political enforcement priorities
Not clear whether the current authority to refer ”overdue” BIA cases has even been utilized (but, if it hasn’t been, why would the AG fear potentially being “overburdened” with such non-existent referrals and find it necessary to make this change?)
The Justice Department has moved to decertify the union of immigration judges, a maneuver that could muffle an organization whose members have sometimes been openly critical of the Trump administration’s immigration enforcement agenda.
The department filed a petition on Friday asking the Federal Labor Relations Authority to determine whether the union, the National Association of Immigration Judges, should have its certification revoked because its members are considered “management officials” ineligible to collectively organize, according to a Justice Department spokesman.
The move suggested escalating tensions between overwhelmed immigration judges desperate for greater resources and a Justice Department pushing them to quickly address a backlog of immigration cases.
“This is a misguided effort to minimize our impact,” said Judge Amiena Khan, vice president of the judges’ union, which has publicly criticized the use of a quota system in immigration court and other attempts to speed up proceedings.
“We serve as a check and balance on management prerogatives and that’s why they are doing this to us,” said Judge Khan.
Unlike other federal judges who are part of the judicial branch, immigration judges are appointed by the attorney general and are employees of the Justice Department. Though sitting judges are prohibited from speaking publicly about issues that could be considered political, representatives of the immigration judges’ union can speak publicly about Justice Department policies on behalf of its members.
This is not the first time an administration has challenged the organization. The Clinton administration also tried to decertify the immigration judges’ union, a move that the Federal Labor Relations Authority rejected, according to former immigration judges.
Both Judge Khan and the union president, Judge Ashley Tabaddor, have spoken out repeatedly against what they say is an attempt to turn immigration judges from neutral arbiters of the law to law enforcement agents enacting the White House’s policies. They have called for immigration judges to be independent of the Justice Department.
Last year, the union criticized the department’s quota system, which required immigration judges to complete 700 cases per year, as well as a move to bar judges from an administrative tool they had previously used to reduce their caseloads. The union says the focus on efficiency impedes judges’ ability to work through complicated cases and could affect the due process rights of immigrants in court.
Addressing some of the union’s concerns, the Justice Department has tried to tackle the backlog, which now totals more than 830,000 cases, by hiring more immigration judges. Judges appointed by President Trump now make up 43 percent of the nation’s immigration judges, a larger share than under any of his five predecessors, according to a recent analysis by The Associated Press. A large number of his appointees are former military or Immigration and Customs Enforcement lawyers, the analysis found.
But that hiring has not been accompanied by other necessary support, Judge Khan said.
“I can’t work alone, I am reliant on support staff,” said Judge Khan. “Right now there are two judges to one support staff person,” which has delayed the progress of cases despite the additional judges, she said.
The judges’ union plans to officially respond to the Justice Department’s petition once it receives official notification from the Federal Labor Relations Authority.
If the attempt to decertify the union is successful, it could leave judges without recourse for their already overwhelming workload, judges said.
“The union won’t be able to help judges with overall working conditions at a time when most all judges would tell you working conditions are worse now than they have ever been,” said Paul Schmidt, a former immigration judge.
Judge Khan called the Justice Department’s petition part of “a systematic attack on unions” representing federal employees under the Trump administration. Last year, Mr. Trump signed a series of executive orders that rolled back the workplace role of unions for at least two million federal workers and made it easier to fire them. The administration said the move would make the government more efficient.
The Justice Department’s recent petition will most likely prompt an investigation by the Federal Labor Relations Authority, according to a department spokesman.
Seems like the investigation ought to be into ethical violations and attempts to misuse Federal labor laws by Bill Barr. A substantially identical challenge to the NAIJ was soundly rejected by the same agency, the FLRA, back in the late 1990’s under the Clinton administration.
Since then, over the strong objection of the NAIJ, the status of Immigration Judges has been even farther reduced to that of glorified “deportation clerks.” The idea that individuals whose little remining discretion has been removed have somehow morphed into “management officials” is both totally absurd and a confirmation that so-called “management officials” in the Federal Government under the Trump Administration have nothing to manage.
Seems like this clear abuse of our legal system by Barr and his cronies should be a subject for investigation by the House Judiciary Committee and would warrant commencement of impeachment proceedings against arrogant, anti-American scofflaw Bill Barr. Not that Barr hasn’t already been found in contempt of Congress and the American people – he has. He’s a disgusting character – a disgrace to public service and the legal profession.
I suppose he will escape accountability in his lifetime. But, the “Jefferson Davis of the Justice Department” will certainly receive the judgement of history against him for his betrayal of his country and his racist, White Nationalist misconduct clothed in a thin veneer of undeserved credibility based on his success in the corporate legal world. If anything, that a sleazy and corrupt character like Barr could prosper in the world of “white shoe corporate law” is an indictment of that system and its total lack of values and ethical standards.
Meanwhile, it appears that the actions of the NAIJ have been successful in striking a nerve among the DOJ kakistocracy. As with the corrupt, inept, and racist-infested DHS, the current inability of the DOJ as an institution to stand up to Barr’s dishonesty, corruption, and lawless behavior certainly merits a reexamination of the role and structure of the DOJ down the line with an eye toward determining how an institution supposedly staffed with “officers of the court” could be so cowardly and inept when it comes to standing up against internal abuses and contempt for our Constitution.
In addition, the latest abuse of authority by Barr emphasizes the need for immediate removal of the Immigration Courts from Barr’s control and a reversal of the “Chevron doctrine” of “judicial task avoidance” that has granted the DOJ’s immigration kakistocracy clearly unwarranted and unjustified “deference.”
Finally, I pass along my favorite quip from one of my former colleagues about the exalted “management role” of today’s Immigration Judges: “I often say I am not even permitted to manage the pencils in my courtroom.”
While there is a certain type of “dark humor” in the actions of Barr and the other “malicious incompetents” in the Trump Administration, there is nothing funny about the innocent lives being lost or threatened by their actions or the damage that these “evil clowns” are inflicting on our Constitution and our instructions.
Trump administration ending in-person interpreters at immigrants’ first hearings
Tal Kopan, San Francisco Chronicle
WASHINGTON — The Trump administration is preparing to replace in-court interpreters at initial immigration court hearings with videos informing asylum seekers and other immigrants facing deportation of their rights, The Chronicle has learned.
The administration portrays the change as a cost-saving measure for an immigration court system bogged down under a growing backlog. But advocates for immigrants are concerned the new procedure could jeopardize their due-process rights, add confusion and potentially make the system less efficient by causing more of them to go underground or appeal cases.
The Justice Department informed the nation’s immigration judges of the change last month at a training session, multiple sources familiar with the situation told The Chronicle.
At issue are “master calendar” hearings where immigration judges meet with undocumented immigrants, usually dozens of them, in rapid succession to schedule their cases and to inform them of their rights. The quick sessions are intended mainly to be sure the immigrants understand what is happening and know when their next hearing will be and what steps they need to take in the interim.
Under the new plan, which the Justice Department told judges could be rolled out by mid-July, a video recorded in multiple languages would play informing immigrants of their rights and the course of the proceedings. But after that, if immigrants have questions, want to say something to the judge or if the judge wants to confirm they understand, no interpreter would be provided.
Many of the immigrants come from Central America, but collectively they speak a diverse range of indigenous languages and sometimes don’t know Spanish. Immigrants from all over the world also come before the court system, which is run by the Justice Department.
The shift would especially affect immigrants who do not have attorneys to explain proceedings. Many immigrants lack representation at the initial hearing, and legal services around the country say they are being stretched thin. The government does not provide attorneys.
Instead of turning to an in-court interpreter, judges would have to rely on any who happen to be in the building for other purposes, or call a telephone service for on-demand translation that judges say can be woefully inadequate or substantially delayed.
“It’s a disaster in the making,” one judge said, speaking on condition of anonymity because the person did not have Justice Department approval to talk publicly. “What if you have an individual that speaks an indigenous language and has no education and is completely illiterate? You think showing them a video is going to completely inform them of their rights? How are they supposed to ask questions of the judge?”
The Justice Department billed the move as a cost-saving measure. Sources familiar with the interpreter situation say there have been ongoing issues with the budget and the contract with the primary interpreter provider, leading the administration to encourage more use of the telephone service and look for other ways to keep costs down.
A Justice Department who was not authorized to speak on the record said the shift away from in-person interpretation was “part of an effort to be good stewards of (the department’s) limited resources.” The official said the direction to judges was not a policy change, but declined to elaborate.
The immigration judges union, the National Association of Immigration Judges, said the change was another in a line of steps the administration has taken to force judges to do more with fewer resources at the risk of fairness.
Asked to comment, union President Ashley Tabaddor, a judge in Los Angeles, said the Justice Department had not given enough notice for the union to raise objections or provide input on the change.
She dismissed budget concerns as a justification.
“Interpreter cost is not a surprise cost — it’s an integral part of every case,” Tabaddor said. “If they actually look at the courts as a real court, they would never be dismissive of the role of an interpreter. But the fact that we are here and have these budget shortfalls means they have prioritized the budget in a way that is dismissive of the integral role of the interpreters, and reflects the flaw of having the courts run by a law enforcement agency.”
The immigration courts have been overwhelmed for years with a burgeoning load that is now approaching 1 million cases. The judges association has advocated for the courts to be removed from the Justice Department and made an independent system.
The Trump administration has made a series of efforts it says are intended to speed up the process and avoid having hundreds of thousands of immigrants build lives in the U.S. while waiting to learn if they will be deported. Critics, including immigration lawyers and advocates and some judges, say many of the changes have actually undermined the system, confusing immigrants and creating grounds for lengthy appeals.
Some judges said it’s common at master calendar hearings for immigrants to misunderstand the advice to find a lawyer. Some conclude that means they should not return for their next hearing if they don’t have a lawyer. Failing to appear is grounds for a deportation order.
The system is “not an assembly line,” said Jeffrey Chase, a former immigration judge and former senior legal adviser to the immigration appeals court who now volunteers for organizations that provide legal assistance to immigrants. He said the master calendar is most immigrants’ first impression ever of a court system, and that a lack of interpreters and interaction with a judge could foster a sense of distrust.
“You’re dealing with people’s lives,” Chase said. “All kinds of crazy issues arise. Sometimes there’s a health issue, and you need to be able to communicate to find this stuff out.
“And also, people come in so afraid,” Chase said. “If they’re able to talk with the judge and realize, ‘This person is a human being and they’re able to work with me’ — being played a tape reinforces this feeling that, ‘I’m dealing with this deportation machine.’ ”
Chase said concerns about the cost and length of the process are legitimate, but he questioned the administration’s way of addressing them.
“You always hear the word ‘efficiency’ from this administration now, and it’s very infrequent that you hear ‘due process’ or ‘justice,’ ” Chase said. “There’s no longer concern about the balance. It’s totally efficiency-heavy these days, and I think it’s being decided by people who haven’t been in the court much and don’t understand the consequences.”
My suggestion: In the future, any legal claims involving Members of Congress or Article III Judges and any members of their immediate families should be tried only in U.S. Immigration Court. The opposing party should be given the ability to:
Select the judge;
Write or rewrite the rules governing the litigation;
Change any result with which they might disagree; and perhaps most important
The proceedings shall be conducted in a language that only the opposing party and the “judge” understand.
That way, these folks would be receiving the same type of “justice” under the Constitution that they are happy to inflict on individuals in today’s Immigration Courts. Seems fair to me.
EOIR SHAKEUP:Chief Immigration Judge, Deputy Director, General Counsel Ousted!
By Paul Wickham Schmidt for Immigrationcourtside.com
Alexandria, VA, June 8, 2019.The nation’s totally dysfunctional and highly politicized Immigration Court System, known as the Executive Office For Immigraton Review (“EOIR”), has ousted three of its top career senior executives, according to a report filed yesterday by Nicole Narea of Law360. Here’s a link to Narea’s story for those with Law360 access. https://www.law360.com/articles/1166974/three-senior-eoir-officials-to-step-down.
Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions.
Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan” to demean and degrade Immigration Judges and Appellate Immigraton Judges at the Board of Immigration Appeals, strip them of the last vestiges of judicial independence and docket control, and return the Immigration Courts to their pre-EOIR status as perceived appendages of DHS (then INS) enforcement.
Keller supposedly “retired,” an unusual move given her age group and that senior executives are the civil service equivalent of brigadier generals. King was transferred to the Office of the Chief Administrative Hearing Officer (OCAHO”), long known as the “Siberia of EOIR” and a repository for prior senior executives who had fallen out of favor with “EOIR Management” and their DOJ “handlers.” Reilly reportedly transferred to a senior executive position with the U.S. Postal Service (“USPS”), another surprising move for a top senior executive attorney at the DOJ.
Predictably, there has been no official announcement from EOIR or the DOJ, nor have any replacements been named. Meanwhile, the backlog mushrooms, morale sinks further, conditions continue to deteriorate, and due process and fundamental fairness are mocked every day in the EOIR “courts” and also by life-tenured Article III Judges who are willing to “rubber stamp” the results of this patently illegal and unjust system.
Keller, King, and Reilly have “escaped from the circus.” But, hopefully there someday will be accountability for those throughout government and the Article III Courts who continue to participate in, enable, and further this ongoing farce and the resulting gross perversion of American law and human values.
In reviewing such decisions, we treat factual findings “as conclusive unless the evidence was such that any reasonable adjudicator would have been compelled to a contrary view,” and we uphold the agency’s determinations “unless they are manifestly contrary to the law and an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). These standards demand deference, but they do not render our review toothless. The agency “abuse[s] its discretion if it fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” Id.; accord Zavaleta-Policiano, 873 F.3d at 247.
Orellana contends that the IJ and the BIA did precisely this in their reasoning as to whether the Salvadoran government was willing and able to protect her.3 We must agree. Examination of the record demonstrates that the agency adjudicators erred in their treatment of the evidence presented. Here, as in Tassi and Zavaleta-Policiano, the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.
First, agency adjudicators repeatedly failed to offer “specific, cogent reason[s]” for disregarding the concededly credible, significant, and unrebutted evidence that Orellana provided. Tassi, 660 F.3d at 722; accord Ai Hua Chen, 742 F.3d at 179. For example,
3 Orellana also contends that the BIA failed to conduct separate inquiries into the Salvadoran government’s “willingness” to protect her and its “ability” to do so. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (finding legal error where the BIA considered a government’s efforts at offering protection without “examin[ing] the efficacy of those efforts”). After careful review of the record, we must reject this contention. The BIA applied the proper legal framework. It treated “willingness” and “ability” as distinct legal concepts, and it sufficiently addressed each in its order.
9
Orellana testified that during her third attempt to obtain a protective order in 2009, the Salvadoran family court refused to offer aid and instead directed her to the police station, which also turned her away. Yet the IJ gave this evidence no weight.
The IJ declined to do so on the theory that it was “unclear and confusing as to why exactly she was not able to get assistance from either the police or the court during these times.” But the record offers no evidence to support the view that the Salvadoran government officials had good reason for denying Orellana all assistance. Cf. Tassi, 660 F.3d at 720 (requiring agency to “offer a specific, cogent reason for rejecting evidence” as not credible). Rather, Orellana offered the only evidence of their possible motive aside from the family court officials’ claim that they were “too busy” — namely, uncontroverted expert evidence that “[d]iscriminatory gender biases are prevalent among [Salvadoran] government authorities responsible for providing legal protection to women.”
Nor did the IJ or the BIA address Orellana’s testimony, which the IJ expressly found credible, that she called the police “many times” during a twelve-year period, calls to which the police often did not respond at all. This testimony, too, was uncontroverted. To “arbitrarily ignore[]” this “unrebutted, legally significant evidence” and focus only on the isolated instances where police did respond constitutes an abuse of discretion.Zavaleta-Policiano, 873 F.3d at 248 (quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)); accord Hernandez-Avalos, 784 F.3d at 951 (“[A]n IJ is not entitled to ignore an asylum applicant’s testimony in making . . . factual findings.”).
10
The agency’s analysis also “distorted” the record evidence concerning the instances of government involvement. Tassi, 660 F.3d at 719. For example, although the IJ accepted as credible Orellana’s testimony that Salvadoran family court employees rebuffed her third request for a protective order because “they were too busy” and suggested that she try again another day, the IJ inexplicably concluded from this testimony that Salvadoran family court employees “offered continued assistance” to Orellana. The IJ similarly distorted the record in finding that, in 2006, “the [family] court in El Salvador acted on [Orellana’s] behalf” when it took no action against Garcia, and in finding that, in 2009, a different Salvadoran court “attempted to assist” Orellana bydenying her the protective order that she requested.
Despite these errors, the Government asserts three reasons why the BIA’s order assertedly finds substantial evidentiary support in the record. None are persuasive.
First, the Government argues that Orellana’s own testimony established that she had “access to legal remedies” in El Salvador. But access to a nominal or ineffectual remedy does not constitute “meaningful recourse,” for the foreign government must be both willing and able to offer an applicant protection. Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010). As the Second Circuit has explained, when an applicant offers unrebutted evidence that “despite repeated reports of violence to the police, no significant action was taken on [her] behalf,” she has provided “ample ground” to conclude “that the BIA was not supported by substantial evidence in its finding that [she] did not show that the government was unwilling to protect [her] from private persecution.” Aliyev v.
Mukasey, 549 F.3d 111, 119 (2d Cir. 2008). Evidence of empty or token “assistance” 11
cannot serve as the basis of a finding that a foreign government is willing and able to protect an asylum seeker.
Second, the Government contends that Orellana cannot show that the Salvadoran government is unable or unwilling to protect her because she did not report her abuse until 1999 and later abandoned the legal process. But Orellana’s initial endurance of Garcia’s abuse surely does not prove the availability of government protection during the decade-long period that followed, during which time she did seek the assistance of the Salvadoran government without success. As to Orellana’s asserted abandonment of the Salvadoran legal process, we agree with the Government that an applicant who relinquishes a protective process without good reason will generally be unable to prove her government’s unwillingness or inability to protect her. But there is no requirement that an applicant persist in seeking government assistance when doing so (1) “would have been futile” or (2) “have subjected [her] to further abuse.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Here, Orellana offered undisputed evidence of both.
Finally, the Government suggests that even if the Salvadoran government had previously been unwilling or unable to help Orellana, country conditions had changed by 2009 such that she could receive meaningful protection. Because the agency never asserted this as a justification for its order, principles of administrative law bar us from
12
dismissing the petition on this basis. See SEC v. Chenery Corp., 318 U.S. 80, 94–95 (1943).4
We have often explained that an applicant for asylum is “entitled to know” that agency adjudicators “reviewed all [her] evidence, understood it, and had a cogent, articulable basis for its determination that [her] evidence was insufficient.” Rodriguez- Arias v. Whitaker, 915 F.3d 968, 975 (4th Cir. 2019); accord, e.g., Baharon, 588 F.3d at 233 (“Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present . . . will be fairly considered and weighed by those who decide their fate.”). That did not happen here.
We therefore vacate the order denying Orellana asylum.5 On remand, the agency must consider the relevant, credible record evidence and articulate the basis for its decision to grant or deny relief.
This is how “malicious incompetence” builds backlog. This case has been pending since March 2011, more than eight years.It has been before an Immigration Judge twice, the BIA three times, and the Fourth Circuit twice. Yet, after eight years, three courts, seven judicial decisions, and perhaps as many as 17 individual judges involved, nobody has yet gotten it right! This is a straightforward “no brainer” asylum grant!
However, the Fourth Circuit, rather than putting an end to this continuing judicial farce, remands to the BIA who undoubtedly will remand to the Immigration Judge. Who knows how many more years, hearings, and incorrect decisions will go by before this respondent actually gets the justice to which she is entitled?
Or maybe she won’t get justice at all. Who knows what the next batch of judges will do? And, even ifthe respondent “wins,” is getting asylum approximately a decade after it should have been granted really “justice?” This respondent actually could and should be a U.S. citizen by now!
To make things worse, although the DHS originally agreed that most of the facts, the “particular social group,” as well as “nexus” were “uncontested,” now, after eight years of litigating on that basis, likely spurred by Session’s White Nationalist unethical attack on the system in Matter of A-B-, the DHS apparently intends to “contest” the previously stipulated particular social group.
Rather than putting an end to this nonsense and sanctioning the Government lawyers involved for unethical conduct and delay, the Fourth Circuit merely “notes in passing,” thereby inviting further delay and abuse of the asylum system by the DHS and EOIR.
This well-documented, clearly meritorious case should have been granted by the Immigration Judge, in a short hearing, back in March 2013, and the DHS should have (and probably would have, had the Immigration Judge acted properly) waived appeal.
Indeed, in a functional system, there would be a mechanism for trained Asylum Officers to grant these cases expeditiously without even sending them to Immigration Court.
The bias, incompetence, and mismanagement of the Immigration Court system, and the unwarranted tolerance by the Article III Courts, even those who see what is really happening, is what has sent the system out of control
Don’t let the Administration, Congress, the courts, or anyone else blame the victims of this governmental and judicial misbehavior — the asylum seekers and their lawyers, who are intentionally being dehumanized, demeaned, and denied justice in a system clearly designed to screw asylum seekers, particularly women fleeing persecution from the Northern Triangle!
We don’t need a change in asylum law.We need better judges and better administration of the Asylum Office, as well as some professionalism, sanity, and discipline from ICE and CBP about what cases they choose to place in an already overtaxed system.
That’s why it’s critical for advocates not to let the Article IIIs “off the hook” when they improperly “defer” to a bogus system that currently does not merit any deference, rather than exposing the misfeasance in this system and forcing it to finally comply with Constitutional Due Process of law.
While the statute says Article III Courts should “defer” to fact findings below, such deference should be “one and done.” In cases such as this, where EOIR has already gotten it wrong (here five times at two levels), Due Process should require “enhanced scrutiny” by the Article IIIs.
It’s welcome to get a correct published analysis from an Article III.
But, as noted by the Fourth Circuit, this is at least the third time the BIA has ignored the Fourth Circuit’s published precedents by “disregarding and distorting” material elements of a respondent’s claim. There is a name for such conduct: fraud.
Yet, the Fourth Circuit seems unwilling to confront either the BIA or their apologists at the Office of Immigration Litigation (“OIL”) for their unethical, incompetent, frivolous, and frankly, contemptuous behavior.
That’s why it’s absolutely critical for the advocacy community (the “New Due Process Army”) to keep pushing cases like this into the Article III Courts and forcing them to confront their own unduly permissive attitude toward the BIA which is helping to destroy our system of justice.
And, if the Article IIIs don’t get some backbone and creativity and start pushing back against the corrupt mess at EOIR, they will soon find the gross backlogs caused by “Aimless Docket Reshuffling” and “malicious incompetence” will be transferring to their dockets from EOIR.
Due Process Forever; complicity in the face of “malicious incompetence,” never!
NPR’s Michel Martin speaks with Jeffrey Chase, a former immigration judge, about how President Trump’s new proposals will affect immigration courts.
MICHEL MARTIN, HOST:
This is ALL THINGS CONSIDERED from NPR News. I’m Michel Martin. Immigration, both legal and unauthorized, has been a central issue for Donald Trump since he announced his candidacy for president. Last week, he announced his plan for an overhaul to the current system, which emphasizes family ties and employment, moving to a system that would prioritize certain education and employment qualifications.
Overshadowing all of this, however, is the huge backlog of immigration cases already in the system waiting to go before the courts. More than 800,000 cases are waiting to be resolved, according to The New York Times. We wanted to get a sense of how the immigration courts are functioning now and how the new system could affect the courts, so we’ve called Jeffrey Chase. He is a retired immigration judge in New York. He worked as a staff attorney at the Board of Immigration Appeals. We actually caught up with him at the airport on his way back from a conference on national immigration law, which was held in Austin, Texas.
Mr. Chase, welcome. Thank you so much for joining us.
JEFFREY CHASE: Thank you. Yeah, it seems appropriate to be at JFK Airport talking about immigration. So…
MARTIN: It does.
CHASE: It worked out.
MARTIN: So, first of all, just – as you said, you’re just coming back from this conference. Could you just give me – just overall, what are you hearing from your colleagues, particularly your former colleagues in the courts, about how this system is functioning now? How do they experience this backlog? Is it this unending flow of cases that they can’t do anything with? Or – how are they experiencing this?
CHASE: Yeah. You know, the American Bar Association just put out a report on the immigration courts recently in which they said it’s a dysfunctional system on the verge of collapse. And that was, basically, agreed to by everybody at the conference, including sitting immigration judges. What the judges have said is that the new judges being hired are pretty much being told in their training that they’re not really judges, that instead, they should view themselves as loyal employees of the attorney general and of the executive branch of government. They are basically being trained to deny cases not to fairly consider them.
So, you know, the immigration court itself has to be neutral, has to be transparent and has to be immune from political pressures. And unfortunately, the immigration courts have always been housed within the Department of Justice, which is a prosecutorial agency that does not have transparency and which is certainly not immune from political pressures. So there’s always been this tension there, and I think they’ve really come to a head under this administration.
MARTIN: Well, the president has said that his new proposal should improve the process by screening out meritless claims. And I think his argument is that because there will be a clearly defined point system for deciding who is eligible and who is not, that this should deter this kind of flood of cases. What is your response to that?
CHASE: Yeah, I don’t think it addresses the court system at all because he’s talking – his proposal addresses, you know, the system where people overseas apply for visas and then come here when their green cards are ready. And those are generally not the cases in the courts. The courts right now are flooded with people applying for political asylum because they’re fleeing violence in Central America.
MARTIN: Well, can I just interrupt here? So you’re just saying – I guess on this specific question, though, you’re saying that this proposal to move to a system based on awarding points for certain qualifications would not address the backlog because that is not where applicants come in. Applicants who are a part of this backlog are not affected by that. Is that what you’re saying?
CHASE: Yes. Applying for asylum is completely outside of that whole point system and visa system. And that’s saying that anyone who appears at the border or at an airport and says, I’m unable to return; I’m in fear for my life, goes on a whole different track.
MARTIN: And so, finally, what would affect this backlog? What would be the most – in your view, based on your experience – the most effective way to address this backlog – this enormous backlog of cases?
CHASE: I think, to begin with, any high-volume court system – criminal courts, you know, outside of the immigration system – can only survive when you have – the two parties are able to conference cases, are able to reach pre-case settlements, are able to reach agreements on things. If you could imagine in the criminal court system, if every jaywalking case had to go through a – you know, a full jury trial and then, you know, get appealed all the way up as high as it could go, that system would be in danger of collapse as well. So I think you have to return to a system where you allow the two sides to negotiate things.
And you also have to give the judges – let them be judges. Give them the tools they need to be judges and the independence they need to be judges. And lastly, you have to prioritize the cases.
MARTIN: Before we let you go, I assume that there were different political perspectives at this conference, given that people come from all different sectors of that – of the bar. And I just wondered – and I assume that there are some there who favor more restrictionist methods and some who don’t. I was wondering, overall, was there a mood at this conference?
CHASE: I think the overall mood, even amongst the restrictionist ones – the idea that, you know, look; judges have to be allowed to be judges and have to be given the respect and the tools they need to do their job is one that’s even held by the more restrictionist ones. And although the government people aren’t allowed to speak publicly under this administration, I think privately, they’re very happy about a lot of the advocates fighting these things and bringing – making these issues more public.
MARTIN: Jeffrey Chase is a former immigration judge. He’s returned to private practice. And we actually caught up with him on his way back from an immigration law conference in Austin, Texas. We actually caught up with him at the airport in New York.
Jeffrey Chase, thank you so much for talking to us.
CHASE: Thank you so much for having me on the show.
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Go to the link for the full audio from NPR.
I agree with my friend Jeffrey that the sense at the FBA Immigration Conference in Austin, TX was that EOIR had hit “rock bottom” from all angles: ethics, bias, and competence, but amazingly was continuing in “free fall” even after hitting that bottom. It’s difficult to convey just how completely FUBAR this once promising “court system” has become after nearly two decades of politicized mismanagement from the DOJ culminating in the current Administration’s “malicious incompetence” and EOIR’s aggressive disdain for its former “Due Process mission.”
