EOIR – Page 96 – immigrationcourtside.com

INSIDE TRUMP’S IMMIGRATION KAKISTOCRACY WITH TRAC: “Malicious Incompetence” Reigns As DHS & EOIR “Fly Blind” On Asylum System & Are Now Hiding Data From Public To Cover Up Own Malfeasance!

https://urldefense.proofpoint.com/v2/url?u=https-3A__trac.syr.edu_immigration_reports_556_&d=DwMFAg&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=5P7-gWBTtD9g2EDR8U0pyQ5iVCpXWh5b63SXxj7pZPM&m=7PPq-dt8e4s-LLVyEA4t_Pm56qGq-luz6SZ4sXKnbvY&s=04Kf565VLlHoKvcIpERtb5vE2fKENyBuhZ-26wZhkmA&e=

Data Lacking on Why Immigration Courts Not Overwhelmed with Family Cases

Given reports on the number of families arrested at the border, why aren’t there more of these cases before the Immigration Courts? No one seems to know precisely what happens to each family after members are arrested by the Border Patrol and at ports of entry. In general, DHS itself is responsible for providing “notices to appear” to those arrested, and DHS agencies are also responsible for filing copies of these NTAs, where appropriate, with the Immigration Courts. This is supposed to occur whether or not families remain detained.

NTAs are the “notices to appear” that are given individuals providing official notification that the government is seeking to deport them. DHS agencies – including Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and Citizenship and Immigration Services (USCIS) – have the authority to issue NTAs, and to file them as needed with the Immigration Courts. Although CBP initially arrests these families at the border and at ports of entry, ICE becomes involved if longer periods of detention are needed. Asylum officers at USCIS also enter the picture as they are responsible for conducting “credible fear” and “reasonable fear” reviews for those seeking asylum.

It appears that the government itself does not actually know what happens to those it arrests at the border. It admits it lacks the ability to reliably follow cases when they pass from one agency of DHS to another – such as CBP to ICE and to USCIS – or to connect those cases when jurisdiction has been passed to the Department of Justice (DOJ) where the Immigration Courts are located. This appears to parallel the difficulties the government has had in reuniting children separated from their parents because separate record systems didn’t pass along relevant information.

In many respects it appears that the Administration continues to be flying blind. Clearly, if agency officials don’t have the data they need, they will be unable to effectively manage the situation, or even to accurately identify what additional personnel and other resources are most urgently needed. They also will be unable to effectively assess the impact of alternative policy choices that may be proposed.

In addition, the public is not being providing sufficient access to the data that is being recorded. A new barrier to public access arose just this month when the Department of Justice decided to review what information was released under the Freedom of Information Act. It stopped providing TRAC with particular case-by-case Immigration Court records tracking the processing of asylum and related applications for relief. Information both on historical as well as new asylum applications are now being withheld during this review. Other vital data TRAC had been routinely receiving and making publicly available on its website are also now being withheld.

As a direct result, TRAC is currently unable to update either its asylum web query tool, or its access tool on representation in Immigration Court by state and county. In addition, several of the fields in its tool that allows the public to drill into details on deportation proceedings, are no longer available.

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Attacks on Due Process fueled by “malicious incompetence” are the real “immigration emergency.” And, unlike the “fake asylum/border crisis” staged by the Kakistocracy, this one is a threat to our national security. Why isn’t anyone being held accountable here?

PWS

04-25-19

COURTS OF INJUSTICE: Lawyers’ Groups Rip Bias, “Asylum Free Zone” At El Paso Immigration Court!

https://www.cnn.com/2019/04/03/us/el-paso-immigration-court-complaint/index.html

Catherine Soichet reports for CNN:

Lawyers slam ‘Wild West’ atmosphere in Texas immigration court

(CNN)Judges at an immigration court in El Paso, Texas, are undermining due process, making inappropriate comments and fostering a “culture of hostility” toward immigrants, according to a new complaint.

The administrative complaint, sent to the Justice Department on Wednesday and obtained by CNN, slams a number of allegedly recurring practices at the El Paso Service Processing Center court, which hears cases of immigrants detained at several locations near the border.

“El Paso feels like the Wild West in terms of the immigration system,” said Kathryn Shepherd, national advocacy counsel for the American Immigration Council’s Immigration Justice Campaign and one of the complaint’s authors. “There’s so little oversight. No one is talking about how bad it is.”

The complaint comes at a time of mounting criticism of the Justice Department-run courts that decide whether individual immigrants should be deported. And it comes as officials warn the number of cases those courts are tasked with handling is rapidly increasing with an influx of more undocumented immigrants crossing the border.

Among the allegations:

• Judges at the El Paso Service Processing Center court have “notably high rates of denial,” the complaint says, noting that the court granted less than 4% of asylum applications heard there between fiscal year 2013 and fiscal year 2017. Nationally, 35% of asylum cases in court are granted, according to the latest data from the Transactional Records Access Clearinghouse at Syracuse University.

• The complaint accuses judges in the court of making inappropriate comments that “undermine confidence in their impartiality” and are part of “a culture of hostility and contempt towards immigrants who appear” at the court. While hearing one case, a judge, according to the complaint, described the court as “the bye-bye place,” telling a lawyer, “You know your client is going bye-bye, right?” Another judge allegedly told court observers that “there’s really nothing going on right now in Latin America” that would provide grounds for asylum.

• Rules limiting evidence that can be presented at this court strip away due process, the complaint says. One judge’s standing order, for example, limits the length of exhibits that can be submitted to 100 pages. “This order is particularly harmful for individuals seeking protection whose cases are more complex or where country conditions are at issue,” the complaint says.

The Justice Department’s Executive Office for Immigration Review, which oversees US immigration courts, declined to comment on the allegations. Spokeswoman Kathryn Mattingly confirmed that the office received the complaint letter on Wednesday.

An overwhelmed system

The allegations come amid mounting criticism of US immigration courts.

There are more than 60 immigration courts in the United States, and about 400 judges presiding over them. Immigration judges are hired directly by the attorney general and are employees of the Justice Department. They’re required to be US citizens, to have law degrees, to be active and licensed members of the bar and to have at least seven years of post-bar experience with trials or hearings, among other qualifications.

Prosecutors in immigration courts are employees of Immigration and Customs Enforcement, but the overall administration of the courts is the Justice Department’s responsibility.

Both immigrant rights advocates and immigration hard-liners agree the court system is struggling under a crush of cases — but they diverge widely in their proposals for fixing it.

More than 850,000 cases are pending in US immigration courts, according to the Transactional Records Access Clearinghouse. And in a report released last month, the American Bar Association said the courts are “irredeemably dysfunctional and on the brink of collapse.”

The American Bar Association says US immigration courts are ‘on the brink of collapse’

The Trump administration has moved to hire more judges and to pressure them to finish cases more quickly, accusing immigrants and the lawyers who represent them of gaming the system and overloading it with frivolous cases.

President Donald Trump has also repeatedly questioned the need for an immigration court system to begin with. “We have to get rid of judges,” Trump said Tuesday in the Oval Office, later explaining that he no longer wants to catch people trying to cross the southern border illegally and “bring them to a court.”

Advocates say the existing system denies due process and harms vulnerable people who have legitimate claims to remain in the United States but face an overwhelming number of obstacles to make their case. They’ve argued a major overhaul is necessary, proposing the creation of an independent court system that’s not part of the Justice Department.

In recent congressional testimony, Executive Office for Immigration Review Director James McHenry said his department had increased its number of case completions for the third consecutive year. And he said that every day, the office decides immigration cases “by fairly, expeditiously and uniformly interpreting and administering the nation’s immigration laws.”

‘The worst court in the country’

Lawyers argue the El Paso Service Processing Center facility is both a window into wider problems of the immigration system and a particularly egregious example.

“Immigration courts across the nation are suffering from many of the issues identified here,” the complaint alleges, “including the use of problematic standing orders, reports of inappropriate conduct from (immigration judges), and highly disparate grant rates which suggest that outcomes may turn on which court or judge is deciding the case rather than established principles and rules of law.”

But one reason advocates focused this complaint on this El Paso court, the American Immigration Council’s Shepherd said, was that it had the lowest asylum grant rate in the nation, based on statistics compiled from Justice Department reports over a five-year period.

Trump keeps pushing for his border wall. But the nation’s immigration problems extend well beyond that.

Those figures, from annual fiscal year reports from 2013-2017, show the percentage of cases granted in the El Paso court has fluctuated in recent years, decreasing slightly from 2014-2016 and increasing slightly from 2016-2017. But for years, the figure has hovered at or under 5% — significantly below the national rate.

“If you look at the numbers, it’s the worst court in the country. But we wanted to understand really why that was the case,” she said. “What about El Paso, and what about how the judges conduct business in the court, makes it so hard to prevail?”

After researching that question and outlining their findings in the complaint, with the help of court observers and lawyers who regularly practice in the court, now Shepherd says they’re calling for the Justice Department to conduct its own investigation into the El Paso Service Processing Center court and other courts with similar problems.

Suggestions for improvement

An administrative complaint is a step in a formal grievance process used to bring issues to officials’ attention, Shepherd said, but does not trigger legal proceedings.

The complaint recommends a series of corrective measures, including providing more training on appropriate conduct for judges and requiring the Executive Office for Immigration Review to post publicly online any standing orders individual judges have issued.

New wave of ‘fake dates’ cause chaos in immigration courts

No matter how officials respond, Shepherd said she hopes the complaint will be a jumping-off point for further research into how the court’s practices have affected people who were ordered deported there.

“It’s pretty overwhelming, actually,” she said, “if you think about the thousands of people who have passed through this immigration court and haven’t really had a chance to fight their case in a meaningful way.”

CNN’s Maegan Vazquez and Abby Phillip contributed to this report.

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This isn’t Due Process! This isn’t justice! This is a farce, a fraud, and a parody of justice going on with the active encouragement and incompetent management of a Department of Justice that has abandoned due process and the rule of law in favor of restrictionist “deny ‘em all, deport ‘em all” policies actively promoted by Trump, former Attorney General Jeff Sessions, and adopted by current Attorney General Bill Barr.

This national disgrace and existential threat to our entire justice system and constitutional order will not end until the Immigration Courts are removed from the Department of Justice and reconstituted as an independent, fair, impartial court system dedicated to insuring fairness and due process for all, including the most vulnerable among us.

PWS

04-04-19

PACIFIC STANDARD: The Call For An Independent Article I U.S. Immigration Court Gets Louder! — Systemic Failure Of Due Process “At The Retail Level” Threatens Our Entire Justice System! — “Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case.”

https://apple.news/Ai3XNRy5DTI2o3SbYAJuS_A

Massoud Hayoun reports for Pacific Standard:

Is It Time to Bring the Nation’s Immigration Courts Under the Judicial Branch?

U.S. immigration courts face an “existential crisis.” The American Bar Association says it has a solution.

The American Bar Association is renewing calls for lawmakers to overhaul the nation’s overwrought immigration court system by making the courts independent from the Department of Justice, and therefore from the Trump administration. The association is joined by a broad array of legal workers in accusing the administration of enacting policies that pressure immigration judges to ramp up deportations, with no apparent concern for due process or the rule of law.

The United States immigration court system is not part of the judicial branch, but rather is governed by the Department of Justice’s Executive Office for Immigration Review. The office was created to oversee the courts in 1983; previously they were under the control of the Immigration and Naturalization Service, also under the Department of Justice. Last week, the ABA identified an “existential crisis” within this system, finding it subject to “political interference,” to “policies and practices that threaten due process,” and to “longstanding and widespread under-resourcing.” It calls for a Congressional vote to establish the courts as an independent entity per Article I of the Constitution—also known as an Article I Court.

Shortly after President Donald Trump’s inauguration, his administration told the press that it would work to slash an overwhelming backlog of immigration court cases, restoring an overburdened, sclerotic system to working shape. What followed were a series of policies—among which were quotas on case closures—that observers blame for threatening due process in an effort to facilitate mass-deportation of immigrants, and for exacerbating the immigration court backlog by funneling unprecedented numbers of immigrants into the system.

The Department of Justice did not respond to a request for comment.

Ashley Tabaddor, president of the National Association of Immigration Judges, expresses her organization’s support for an independent immigration court. The ABA, NAIJ, and other organizations, including the Federal Bar Association, began to call for an independent immigration court system long before the Trump administration, during the presidency of Barack Obama.

“We hope that this administration and those mindful of a reasonable approach realize this isn’t a right-wing or left-wing answer; it’s an American answer that protects both efficiency and integrity of the courts,” Tabaddor says. “It hasn’t only been this administration that has pushed back on the idea of an independent [immigration court system]. Unfortunately, part of human nature is it resists what it perceives as giving up power. It means the executive branch would lose direct influence over how [the courts are] used.”

Although the Trump administration has repeatedly acknowledged the backlog and overwhelming challenges faced by immigration judges, it has also opposed an independent immigration court system. James McHenry, director of the Department of Justice office that oversees the courts, told a Senate committee in April that independent courts would not “address any of the core challenges facing the immigration courts.” McHenry repeatedly maintained that all immigrants are afforded due process.

Legal analysts argue, by contrast, that the current status of immigration courts as under the purview of the Department of Justice has politicized their work. “Our current system permits the political branches of government to yield tremendous power over immigration enforcement policies and practices,” says Kathleen Kim, an immigration law professor at Loyola Law School in Los Angeles. “Without an independent judiciary, our system of government provides no check on abuse of that power and immigration court decisions suffer from the taint of impartiality.”

And with a court beholden to the president’s political agenda, immigrant lives—and the Constitution’s guarantees of fair trials—hang in the balance. “As we have seen in the anti-immigrant rhetoric of the Trump administration, the rights of immigrants have become a political football,” says Margaret Russell, a constitutional law professor at Santa Clara University. “Only independent immigration courts can provide a fair forum, as free from partisan politics as possible.”

“Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case,” says Julia I. Vázquez, an immigrant rights professor at Los Angeles’ Southwestern Law School.

Late last year, Pacific Standard reported the story of a Guatemalan woman whose asylum petition had been denied even before a judge had an opportunity to review documents in support of her case, including her initial asylum declaration.

Despite the administration’s promises to help improve the immigration court system, analysts have decried a number of policies that they say have undermined the courts. In April of 2018, then-Attorney General Jeff Sessions required that immigration judges close at least 700 cases a year—with a low rate of appeal—in order to receive a favorable performance review. The move, ostensibly aimed at reducing the backlog, pressured the judges to plow through their caseloads, analysts have said, threatening due process for immigrants. And the move backfired: Rushed rulings are frequently appealed, further compounding the backlog.

In another similar measure in May, Sessions stopped the use of administrative closures, in which immigration judges withhold judgment on a case while immigrants make formal petitions for legal status. Administrative closures had helped judges to prioritize their dockets and avoid getting bogged down with lower-urgency cases.

Coupled with the administration’s unprecedented push to arrest undocumented immigrants with no criminal record, these decisions have made the court’s backlog grow nearly 50 percent under the Trump administration, according to the Syracuse University non-profit data research center, Transactional Records Access Clearinghouse. In November, there were over 768,000 outstanding cases.

Even with overwhelming concerns over backlog and broader questions about due process, it remains highly improbable that the immigration courts will become independent under a divided Congress and the Trump administration. “Keeping immigration courts within the executive branch will ensure adherence to the Trump administration’s anti-immigrant policy objectives,” Kim says.

What’s more, control of the immigration courts will enable the Trump administration to continue to ramp up deportations without the approval of a split Congress. “The opposition [to independent courts] is likely to defend executive branch oversight of immigration courts as the best antidote to Congressional inaction,” Russell says.

NAIJ’s Tabaddor says that, while it is not likely that immigration courts will be made independent anytime soon, there’s growing awareness among lawmakers from both parties of the problems with the system.

“As we see the expansion of the groundswell of support [for independence], it’ll be difficult for Congress not to act,” she says. “Of course, you always have to have hope in life, otherwise it’s not worth it.”

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EOIR’s “no problem” response to the unfolding disaster which, under DOJ political direction, its own bureaucrats have helped engineer “doesn’t pass the straight face test.”

Of course, giving control of Immigration Court dockets back to the judges who actually have to hear and decide cases is the necessary first step in rationalizing the system, ending the DOJ/EOIR’s “Aimless Docket Reshuffling,” and establishing priorities based on fundamental fairness to all parties and overall judicial efficiency, not solely the “DHS enforcement priority of the day.”

Nobody can solve overnight all the problems in our Immigration Courts that have built up and been allowed to fester over decades. But, placing the courts under apolitical, professional judicial control, like all other successful courts, would be a necessary first step from which “best practices” and other efficiencies that are consistent with Due Process would flow.

PWS

03-27-19

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019

ASSOCIATION OF DEPORTATION DEFENSE ATTORNEYS (“ADDA”)

NEW YORK CITY

MARCH 21, 2019

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT”

PAUL WICKHAM SCHMIDT

U.S. IMMIGRATION JUDGE (RETIRED)

Good evening. Thanks so much for coming out tonight. As you know, I’m retired, so I no longer have to give my famous, or infamous, “super-comprehensive disclaimer.” However, I do want to hold my fellow panelists, ADDA, and anybody else of any importance whatsoever “harmless” for my following remarks.

They are solely my views, for which I take full responsibility. That’s right, no party line, no “bureaucratic doublespeak,” no BS. Just the truth, the whole truth, and nothing but the truth, of course as I define truth.

In my brief “5-4-1 program,” I’m going to tell you five horrible problems infecting justice and Due Process in today’s U.S. Immigration Courts; 4 needed reforms, and one solution.

First, the problems, with which I’m sure most of you are painfully familiar. This isn’t a “court system” as any right-thinking person would envision it.

First, unlike any normal court system, the chief prosecutor, the Attorney General selects, directs, and “supervises” the “judges.” Not surprisingly, over the last decade, over 90% of the judges have come directly from government or prosecutorial backgrounds. Well-qualified candidates from private practice, NGOs, and academia have effectively been excluded from participation in today’s immigration judiciary. As part of his “improper influence” over the Immigration Courts, the Attorney General has imposed, over the objection of all judges I’m aware of, demeaning and counterproductive “production quotas” that elevate productivity and expediency over quality, Due Process, and fundamental fairness.

Second, notwithstanding that, according to the Supreme Court, “everything that makes life worth living” might be at issue in Immigration Court, there is no right to appointed counsel. Therefore, DOJ has taken the absurd position that infants, toddlers, and others with no understanding whatsoever of our complicated legal, asylum, and immigration systems are forced to “represent themselves” in life or death matters against experienced ICE Counsel. The Government disingenuously claims that this complies with Due Process.

Obviously, these first two factors give the DHS a huge built-in advantage in removal proceedings. But, sometimes that isn’t enough. Somehow, despite the odds being stacked against them, the individual respondent or applicant prevails. That’s when the “third absurdity” comes in to play.

The chief prosecutor, the Attorney General, can reach into the system and change any individual case result that he or she doesn’t like and rewrite the immigration law in DHS’s favor through so-called “certified precedents.” As you know, former Attorney General Sessions, a committed lifelong xenophobe and the self-proclaimed “king of immigration enforcement” exercised this authority often, more than the preceding two Attorneys General over the eight years they served. Sometimes he intervened even before the BIA had a chance to rule on the case or over the joint objections of both the individual and the DHS.

Fourth, this system operates under an incredible 1.1 million case backlog, resulting largely from what we call “Aimless Docket Reshuffling” or “ADR,” by DOJ politicos and their EOIR underlings. This largely self-created backlog continues to grow exponentially, even with a significant increase in judges, without any realistic plan for backlog reduction. In other words, under the “maliciously incompetent” management of this Administration, more judges has meant more backlog.

Even more disgustingly, in an attempt to cover up their gross incompetence, DOJ and EOIR have attempted to shift the blame to the victims — asylum applicants, migrants, their hard-working often pro bono or low bono lawyers, and the judges themselves. Sophomoric, idiotic non “solutions” like “deportation quotas for judges,” limitations on legitimate continuances, demeaningly stripping judges of the last vestiges of their authority to manage dockets through administrative closing, and mindlessly re-docketing cases that should remain off docket have been imposed on the courts over their objections.

The result has been an increase in “Aimless Docket Reshuffling” the only thing that DOJ politicos and EOIR bureaucrats seem to excel in. How many of YOU have been victims of ADR?

Fifth, the Administration, DOJ, and EOIR use so-called “civil immigration detention” mostly in absurdly, yet intentionally, out-of-the-way locations, to limit representation, coerce migrants into abandoning claims or appeals, and supposedly deter future migration, even through there is scant evidence that abusive detention actually acts as a deterrent. This is done with little or no effective judicial recourse in too many cases. Indeed a recent TRAC study shows neither rhyme nor reason in custody or bond decisions in Immigration Court, even in those cases where the Immigration Judges at least nominally had jurisdiction to set bond.

Now, I’ve told you how due process and fairness are being mocked by DOJ and EOIR in a dysfunctional Immigration Court system where judges have effectively been told to act as “DOJ attorneys” carrying out the policies of their “partners” in DHS enforcement, supposedly a separate party to Immigration Court proceedings but now “driving the train.”

Here are the four essential reforms. First, and foremost, a return to the original “Due Process Focus” of the Immigration Courts: through teamwork and innovation be the world’s best courts guaranteeing fairness and Due Process for all. DOJ politicos and EOIR bureaucrats must be removed from their improper influence over this system that has turned it into a tool of DHS enforcement. Everything done by the courts must go through a “Due Process filter.”

Second, replace the antiquated, inappropriate, bloated, and ineffective “Agency-Style Structure” with a “Court-Style Structure” with sitting judges rather than DOJ politicos and EOIR bureaucrats in charge. Court administration should be decentralized through local Chief Judges, as in other systems, appointed competitively through a broad-based merit system and required to handle a case load. Sitting judges, not bureaucrats, must ultimately be in charge of administrative decisions which must be made in a fair and efficient manner that considers the legitimate needs of DHS enforcement, along with the needs of the other parties coming before the court, and results in a balanced system, rather than one that inevitably favors DHS enforcement over Due Process, quality, and fairness.

Third, create a professional administrative office modeled along the lines of the Administrative Office for U.S. Courts to provide modern, effective judicial support and planning. The highest priorities should be implementing a nationwide e-filing system following nearly two decades of wasted and inept efforts by EOIR to develop one, efforts that have once again been put “on hold” due to mismanagement. A transparent, merit-based hiring system for Immigration Judges, with fair and equal treatment of “non-government” applicants and a system for obtaining public input in the process is also a must. Additionally, the courts must be redesigned with the size of the dockets and public service in mind, rather than mindlessly jamming a 21st century workload into “mini-courts” designed for a long bygone era.

Fourth, a real Appellate Division that performs as an independent court, must replace the “Falls Church Service Center” a/k/a the BIA. The crippling Ashcroft purge-related bogus “reforms” that turned the BIA into a subservient assembly line must be eradicated. The BIA is a so-called “deliberative body” that is far removed from the public it serves and no longer deliberates in a publicly visible manner. The Appellate Division, not politicos and bureaucrats, must be responsible for promulgating precedents in controversial areas, insuring that the generous standards set forth in Cardoza-Fonseca and Mogharrabi are made realities, not just lip service, and reining in wayward judges, the worst of whom have turned some areas into veritable “asylum and due process free zones” resulting in loss of public confidence as well as denial of Due Process and unfair removals.

Some will say that these reforms only deal with two of the five glaring problems — prosecutorial control and political interference. But, an independent, judge-run, Due Process focused U.S. Immigration Court where judges control their own dockets free from political interference and bureaucratic incompetence will be able to work with both private entities and the DHS to solve the problems leading to lack of representation, “Aimless Docket Reshuffling” and backlog building, and abusive use of immigration detention.

No, all problems that have been allowed to fester and grow over decades of calculated indifference and active mismanagement won’t be solved “overnight.” Additional legislative fixes might eventually be necessary. But, fixing Due Process is a prerequisite that will enable other problems and issues to be constructively and cooperatively addressed, rather than just being swept under the carpet in typical bureaucratic fashion.

So, now the “One Solution:” Congress must create an independent Article I U.S. Immigration Court. That’s exactly what the ABA Commission on Immigration recommended in a comprehensive study and report released yesterday.

Thus, the ABA joins the FBA, AILA, and the NAIJ, all organizations to which I belong, in recommending an Article I legislative solution. Significantly, after watching this Administration’s all out assault on Due Process, common sense, truth, the rule of law, human decency, and best practices, the ABA deleted a prior “alternative recommendation” for an independent agency within the Executive Branch. In other words, we now know, beyond any reasonable doubt, that the Executive Branch is both unwilling and unable to run an independent court system in accordance with Due Process.

I highly recommend that you read the comprehensive ABA report in two volumes: Volume I is an “Executive Summary;” Volume II contains the “Detailed Findings.” You can find it on the ABA website or on immigrationcourtside.com my blog, which, of course, I also highly recommend.

In closing, we need change and we need it now! Every day in our so-called “Immigration Courts” Due Process is being mocked, fundamental fairness violated, and unjust results are being produced by a disastrously flawed system run by those with no interest in fixing it. Indeed, one of the stunning recommendations of the ABA is that no further judges be added to this totally dysfunctional and out of control system until it is fixed.

As the great Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.” Tell your elected representatives that you’ve had enough injustice and are sick and tired of being treated as actors in a repertory company specializing in “theater of the absurd” masquerading as a “court system.” Demand Article I now!

Thanks for listening! Join the New Due Process Army, do great things, and Due Process Forever!

(03-21-19)

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The horror stories from those actually attempting to practice in the NY Immigration “Courts,” the examples of “Aimless Docket Reshuffling” (“ADR”) from my friend, “Our Gang” colleague, and fellow panelist Retired U.S. Immigration Judge Patty McManus, and pressing need for an independent Article I Court to replace this dishonest and dysfunctional mess described by fellow panelist NY Attorney Jake LaRaus, of Youman, Mateo, & Fasano were most compelling.

Recurring complaints from the audience were the unequal treatment of private attorneys and DHS Counsel, the glaringly inappropriate deference shown by some Immigration Judges to DHS, and the unwillingness of some judges to enforce rules against the DHS. In other words, many of the things that EOIR originally supposed to “cure” are now “back in spades.” Everyone echoed the theme that this is a system in regression, where things that “worked” at one time have now been intentionally disabled by DHS and EOIR.

Independence and competent, professional, apolitical judicial management by judges would go a long way toward reducing today’s
Government-created backlogs. The problem is definitely not, as some would claim, the number of asylum seekers. Indeed legitimate asylum seekers all over this system who have been waiting years for their cases to be heard and who have time and time again been the victims of “ADR” and politicized meddling with the legal standards are among the many victims of this broken system.

We should all be ashamed of this disgraceful perversion of our Constitution and grotesque waste of Government money going on every day. The solution isn’t “rocket science;” it’s Article I. An achievable idea “whose time has come.”

PWS

03-22-19

JUSTICE PREVAILS AGAIN IN IMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-

JUSTICE PREVAILS AGAIN IN IMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-

Congrats to NDPA warrior (and former EOIR JLC) Camila Palmer of Elkind Alterman Harston, PC in Denver who represented the respondents! Great representation makes a difference; it saves lives!

Conversely, the DOJ EOIR policies that inhibit representation, discourage full and fair hearings, and hinder sound scholarship by U.S. Immigration Judges, thereby making it more challenging for judges to produce carefully researched and written decisions (rather than haphazard contemporaneous oral decisions which often lack professional legal analysis) are a direct attack on Due Process by Government organizations that are supposed to be committed to upholding and insuring it.

Go to this link for a redacted copy of Judge Trujillo’s decision:

Asylum grant PSG Mexican women

U.S. Immigration Judges are not trained in how to recognize and grant asylum cases (or anything else, favor that matter — judicial training was a recent “casualty” of budget mismanagement by DOJ & EOIR). The BIA, always reluctant to publish “positive precedents” on asylum, is keeping a low profile after its emasculation by former AG Sessions. So these cases actually become “de facto precedents” for advocates to use in assisting Immigration Judges and DHS Assistant Chief Counsel in “doing the right thing” in critically examining and completing cases efficiently in the face of the “hostile environment” for Due Process and cooperation in court that has been created by EOIR and DOJ.

It’s a huge “plus” that Judge Trujillo was familiar with and used Judge Sullivan’s outstanding opinion in Grace v. Whitaker which “abrogated” (in Judge Trujillo’s words) or “dismantled and discredited” (my words) Sessions’s biased and legally incorrect decision in Matter of A-B-. Shockingly, during the recent FBA Asylum Conference in New York, Judge Jeffrey Chase and I learned from participants that some U.S. Immigration Judges weren’t even aware of Grace v. Whitaker until counsel informed them! Talk about a system in failure! But, the “bright side” is once aware of the decision, Immigration Judges almost everywhere reportedly were appreciative of the information and eager to hear arguments about how its reasoning applied to the cases before them.

It’s important to remember that in the perverse world of today’s EOIR, fairness, scholarship, teamwork, respect, and correct decision-making — in other words, Due Process of law — have been replaced by expediency, focus on “numbers,” churning out orders of removal, and assisting DHS with its “gonzo” and ever-changing enforcement efforts. What real court operates as an adjunct of the prosecutor’s office? Well, that’s what happens in most of the third word countries and authoritarian states that send us refugees. But, in the United States, courts are supposed to operate independently of the prosecutor.

That’s why EOIR, in its present form of a “captive” highly politicized immigration enforcement organization “must go” and be replaced by an independent Article I Court. Until then, everybody who relies on this system, including ironically not only individuals, but DHS enforcement, Article III Courts, and the Immigration Judges and BIA Judges themselves, will continue to suffer from the dysfunction created by “malicious incompetence” and “Aimless Docket Reshuffling.”

Thanks again and congrats to Camila for adding to the growing body of correct asylum jurisprudence available on the internet for all to use. Just think what could be accomplished if we had a Government devoted to “using best practices to guarantee fairness and Due Process for all!”

PWS

03-21-20

AMERICAN MORASS: Trump Administration’s Breathtaking “Malicious Incompetence” Masks True Extent Of Immigration Court Disaster, Makes Accountability Impossible – See The Latest From TRAC!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

The latest available data from the Immigrant Court indicates that as of February 1, 2019 the court is still playing catch up in the aftermath of the five-week partial government shutdown. It is therefore still too early to get an accurate reading of just how much larger the backlog has grown, or how much longer court delays will be before canceled hearings can be rescheduled.

Available data thus far indicate that somewhere between 80,051 and 94,115 hearings may have been cancelled. However, many entries for scheduled hearings that weren’t held have yet to be marked as canceled in the court’s records leaving some uncertainty in the final tally.

Another troubling indicator of how far court staff are behind is that relatively few new filings were recorded since the shutdown began. Even based on these albeit incomplete records, the backlog has already grown to 829,608. But until new filings are recorded, any new DHS actions seeking removal orders aren’t reflected in this backlog count. After that, huge volumes of hearings will need to be rescheduled. Only then will a proper accounting of the full impact of the shutdown be possible.

For more details on these preliminary figures, see:

https://trac.syr.edu/immigration/reports/546/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through January 2019. For an index to the full list of TRAC’s immigration tools go to:

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

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

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

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

http://facebook.com/tracreports

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

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

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

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

Time for some meaningful House Oversight of this national disgrace! Any DOJ witness who tries to blame this largely self-created disaster on migrants, their lawyers, Immigration Judges, or court staff, or who claims the solution is slashing rights, more detention, or making judges “pedal faster” should be referred for prosecution for lying to Congress under oath!

It also would be a good idea to get some folks like Susan Long and David Burnham from TRAC, the Center for Migration Studies, AILA, Human Rights First, the Heartland Alliance, the Women’s Refugee Committee, ACLU, and the ABA in to inform Congress as to how the DOJ and EOIR have been manipulating and hiding (perhaps even intentionally falsifying) “statistics” to portray a false White Nationalist anti-immigrant restrictionist narrative developed for Trump by Miller, Sessions, and Nielsen, but likely to continue under Barr.

Barr probably wants a “real job” and at least some of his reputation back after he’s finished with his stint as A.G./Trump Legal Apologist. So, his incentive not to perjure himself in front of Congress is probably greater than for some of the other Trump enablers who are used to basically “getting away with murder” with non-existent GOP oversight over the past two years.

Even if Congress and the law don’t hold these folks accountable for their wanton destruction of American institutions, history will. So, it’s important to make the record for the future. “We are all witnesses.”

PWS

02-19-19

“SIMPLY BRILLIANT” — Retired U.S. Immigration Judge Carol King Tells Us All We Need To Know About The Deplorable State Of EOIR & Practice In The Largely “Due Process Free” Zone Of Today’s Immigration Courts In Her Keynote Address To The AILA Northwest Regional Immigration Law Conference!

KEYNOTE SPEECH

I.
KEYNOTE: AILA NORTHWEST REGIONAL IMMIGRATION LAW CONFERENCE February 14, 2019
Seattle, Washington
PRACTICING IN PERILOUS TIMES
INTRODUCTION: Practicing in Perilous Times a.What does it mean to be PRACTICING IN
PERILOUS TIMES? Is this time really so
different? b.ALWAYS:
i. You have ALWAYS worked with the most vulnerable clients
ii.You have ALWAYS taken in stories of trauma, persecution and grief in the normal course of your work
iii.You have ALWAYS had an uphill battle obtaining the relief to which your clients are entitled, because you operate in a system that is broken and often oblivious to their suffering.
c.YOU PERSISTED:
i. But you PERSISTED on behalf of your
clients because you had the skills and the courage to fight those battles on a relatively consistent, if not level, playing field.
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ii.You PERSISTED because you had for inspiration the resilience and courage and dreams of your immigrant clients
iii.You PERSISTED because, maybe not as often as you’d like, but at least occasionally, you had the satisfaction of helping someone achieve a second chance in life – a chance to start over in the country they chose as home, to work and contribute in their chosen manner, to be with their families, to enjoy a life free of persecution or torture or crushing poverty.
d.NOW
i. NOW the playing field tilts more
drastically every day and the battles are so bloody and so mean-spirited and the results so frequently demoralizing and unfair and lacking in due process, that it has become really difficult to carry on, to keep on persisting.
ii.NOW you’re not only experiencing stories of past trauma, but you are witnessing, in real time, the traumatization of your clients as this administration literally terrorizes them with its rhetoric and actions.
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iii.NOW you see decades of hard-won development of protections for your clients swept away in a single day and with a single pen stroke.
iv.In my more than 30 years both practicing as an immigration attorney and sitting as an immigration judge, I don’t believe there has been a more difficult or perilous time to practice in this area.
1.What you are all doing at this time in history is really, really difficult
2.It takes an inordinate amount of dedication, courage and vision.
3.I am in awe of each and every one of you.
II. IMMIGRATION COURT UPDATE a.I’ve been asked to give today an
IMMIGRATION COURT UPDATE.
i. That’s a bit of a difficult task, since
you are the experts on what you’re seeing every day in court, and since I have been off the bench and somewhat “out of the inside loop” for two years, and much has occurred since then. Despite that, I’m going to venture an opinion, and that is that the Immigration Court system itself is also
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in serious peril, as is its ability to provide due process of law to those who appear before it.
ii.I want to focus on a few issues that I think are extremely important to protecting due process in our court system.
b.ADMINISTRATIVE ISSUES resulting in a Crushing caseload: The Immigration Court has been functioning under a crushing caseload and with entirely inadequate resources for as long as I worked there.
i. That caseload is now growing exponentially for a variety of reasons (the last statistic I heard was that, on average, individual Immigration Judges have a pending caseload of over 2500 cases). What are some of the reasons for this exponential growth?:
1.Priorities: This administration has absolutely refused to set any kind of meaningful priorities for prosecution of cases. The policy is to prosecute every issue in every possible case to the max. There is no recognition that limitations on resources require prosecutorial discretion.
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2.Erosion of case management tools:
a.The current management of EOIR has eroded the case management tools that in the past allowed judges to juggle a massive caseload and prioritize the cases that were ripe for adjudication. First, administrative closure was taken away by AG Sessions, with a suggestion that such situations could be dealt with by continuances. Then, once that was in place, EOIR openly discouraged continuances, requiring judges to issue a long- form written decision justifying each granted continuance. No such decision is required to deny a continuance. In addition to eliminating essential tools for managing a massive caseload, incentivizing a particular outcome in decision-making undermines the independence of the court and due process
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and has no place in a court
system!
3.Aftermath of Gov’t Shut Down:
a. My contacts are with the SF
Immigration Court, not Seattle, but I think some generalizations can be made: First, there was ZERO GUIDANCE from EOIR management on how to deal with the specifics of the shut-down. Thus, each court administrator decided how to deal with, for instance, filings during the shut down, and the resetting of cases.
b.In San Francisco, all mail was opened and date stamped, then set for a 10 day call up to begin the day the government reopened. They received 10,000 filings during the 5 week shutdown. None of them could be entered into the system. They all came up for call up on Feb 7, 2019.
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Thus, the SF court, which is one of the most efficient and well-run courts, is overwhelmed still by the remnants of the shut down.
c. In addition, when the SF Court Administrator asked EOIR for a 3 day “recovery period” after the shutdown, the request was denied and they were told that all courtrooms had to be in full swing as of the morning of the first day the government reopened. ACCs did not have their files, court files had not been pulled for Master Calendar and Individual Calendar hearings. At that point 10,000 filings, including those filed before the two week filing deadline for cases scheduled that morning, were in a pile waiting to be entered into the court
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system and were
inaccessible to the judges. d.The only support offered
from EOIR was unlimited overtime for staff, so some staff has now been consistently working 20 hours a week overtime to try to catch up on the aftermath of the shutdown.
e.As an example of the delays engendered by the shutdown, in San Francisco 67 full Master Calendars had to be cancelled. As new cases pour in and add to the backlog, all these cases have to be reset to new Master Calendars, not to mention hundreds of individual cases which must now be reset.
4.Severe shortage in resources: As always, the Immigration Court is operating under a severe shortage of resources. As an example, in San Francisco, by this summer they will have a full complement of 27
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Judges and all courtrooms will be full, but the court is already down 30 Legal Assistants from what they should have and all Legal Assistants are carrying 2 judges’ caseloads, a nearly impossible task even in a short-term emergency situation. Because Legal Assistant hiring falls far behind even IJ hiring, by summer all the Legal Assistants will have to carry 3 judges’ caseloads.
c.LEGAL AND INDEPENDENCE ISSUES
i. I talked about incentivizing denying
continuances. But there are even more direct ways in which this administration has undermined the independence of the Immigration Court. When the Attorney General of the United States goes to a conference of Immigration Judges and specifically tells judges that entire categories of asylum cases should “generally” be denied (as AG Sessions did in the summer of 2018), this is a direct and blatant attack on the decisional independence of the Immigration Judges.
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ii.Matter of A-B- was only one in a series of decisions in which the current Department of Justice is inappropriately using the AG Certification Process in an attempt to roll back decades of painstaking development of the law, developments which had finally brought us into closer compliance with our international obligations to protect true refugees. This tactic has gone hand in hand with vicious attacks on immigrants in the press and disregard of their true motives for coming to the United States.
iii.Add to all of this the jurisdictional issues raised by the Supreme Court in Pereira v. Sessions and the Immigration Court system is in severe peril. It seems to me extremely clear that the legal conclusion in that case compels a finding that the vast majority of Notices to Appear filed with the court during the entire time I have been involved in immigration law are invalid and incapable of conferring jurisdiction on the Immigration Court. As I’m sure you know, a panel of the 9th Circuit
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recently held otherwise, but with very shaky reasoning. If eventually all these NTA’s are declared invalid, I have grave concerns for the impact that will have on the Immigration Court system, and even on tens of thousands of immigrants who have been granted relief by Immigration Courts over the last 40 years.
iv.The final perilous factor I want to talk about today is the pressure on judges to complete an overwhelming number of cases in a very short period of time, probably the most dangerous threat to due process of all.
1.Immigration Judges have, for the first time, been mandated to complete 700 cases per year. In the past we had “aspirational goals” to complete certain cases by a certain time, and that in and of itself, created a lot of pressure and fear among judges.
2.But now, not only have the case completion goals become mandatory, they have been tied to the Immigration Judge’s Performance Evaluations. If you
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look at the ABA’s guidelines for evaluation of judges, you will see that completing a particular number of cases is absolutely inappropriate as a factor to evaluate judges. Judges are evaluated by their peers and party/ stakeholders on criteria such as legal reasoning ability; knowledge of the law; knowledge of rules of procedure and evidence; keeping up on current developments; Integrity and Impartiality; communication skills; professionalism and temperament; administrative capacity (including managing a docket efficiently and effectively) – while this includes promptness in deciding cases, the commentary makes clear that these are aspirational goals, that some factors affecting promptness of decisions may be outside the judges’ control and that the purpose of such an evaluation is primarily for the individual improvement of each judge and
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should never be tied to
disciplinary action.
3.Now we have a situation in the Immigration Court in which the judges’ continued employment depends on their ability to keep up with an artificial and unrealistic case completion mandate, which requires the completion of approximately three full hearings a day, leaving complex asylum and cancellation hearings lucky to be scheduled for 90 minutes, where such hearings used to be scheduled for a full morning or afternoon, and might take even more than one such session.
4.This is something that requires vigilance by all of us. Knowing that the judges are under an incredible amount of pressure, and even sympathizing with that situation (please do!), does not relieve us of zealously representing our clients. What does that mean in this milieu? It means being super prepared. It means being super efficient in the presentation of your cases. It
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means trying to work out stipulations with ICE counsel as to issues, admissibility of evidence, the need for cross examination (anything you can think of to make the hearing go faster for the judge), it means briefing every or almost every case and making sure all arguments are addressed in writing in case time is not given for closing arguments or opening statements. And then, after you have done the most thorough, efficient, and complete job you can at presenting your case, if the time given is not sufficient and the judge is cutting off the presentation of the case, it means standing up on the record and using the words “denial of due process”.
III. CONCLUSION:
a.What does all this mean as we struggle to
deal with the peril in which we find ourselves?
i. As a community, we must continue to advocate for a more independent
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court, one which exists outside of any prosecutorial agency such as the DOJ.
1.For years we had mostly small incursions into decisional independence, most often when EOIR management made what they believed to be an “administrative” decision which inadvertently encroached on decisional independence
2.But, as judges, we saw the potential and feared that more intentional and direct incursions could be made under the current system. Therefore, at peril to our own jobs, we chose to advocate for an independent court under Article 1 of the United States Constitution. Since then, the Federal Bar Association, AILA and others have joined us in this call.
3.We are now seeing the types of direct and intentional attacks on the independence of the Immigration Judges that we mostly only feared before. Therefore, we must redouble our efforts to attain
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independent status for the
Immigration Court.
ii.As individuals, as I said in the
beginning, we are facing truly perilous times, and we can’t underestimate the impact that has on our health, our ability to stay in the work for the long term, and our competence as attorneys.
1.It bears saying that, in such perilous times, it is terribly easy to feel that there is no time to rest, no time to take a break, spend time with family, engage in self- care such as meditation or exercise or dancing or surfing or whatever floats your boat and helps you renew your stamina. It’s so easy to feel that our clients are suffering so badly that we ourselves have no right or ability to rest.
2.A young lawyer said to me recently, “We start out in this work feeling like warriors; but we wind up barely hanging on.” That got me thinking what it would mean to approach our work with the heart
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of a warrior. The characteristics of warriors are:
a.Persistence: not accepting what seems to be inevitable. We didn’t accept it when years of “settled law” seemed to preclude effective use of Particular Social Group in asylum cases, and we must not accept either when the AG “grabs” cases in order to undermine decades of patient and attentive legal development, as he did in Matter of A-B-. Likewise, we must not accept having our cases rushed beyond all semblance of due process.
b.Preparation: Warriors prepare themselves for battle – as we are doing now, and do regularly, by educating ourselves, learning from each other, strategizing and skills training. As warriors, we also prepare our cases as well as ourselves, and do so zealously and to the best of our ability.
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c.Dedication: As warriors, we must consistently ask ourselves – does this work bring me joy? If not, you will not be able to fully dedicate yourself to it for the long term. Because we believe in the work we are doing and the people we are representing, we WANT to give of ourselves 110%. But what does that mean? As part of her preparation for battle, a warrior prepares herself by taking care of body and soul.
I propose to you that in these perilous times, self-care becomes even more essential than it ordinarily is. It HAS to figure in to the 110% that you are giving! Our brains and bodies break down if we remain consistently in fight or flight mode and that effects not only our own happiness and health, but our ability to represent our clients competently and intelligently over a long period of time. Don’t put off this
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aspect of your role as a warrior for your clients. Please don’t wait, as I did, until you are too fundamentally exhausted to implement a self-care plan.
d.Do it now, do it for yourselves, do it for your family, do it for your current and future clients.
3.Thank you
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***********************

Thank you, Carol. Proud to be your colleague in “Our Gang!”

PWS

02-15-19

HEIDI ALTMAN @ HEARTLAND ALLIANCE: How EOIR & Other Trump Toadies Lie & Distort “Statistics” To Support A White Nationalist Immigration Agenda!

https://immigrantjustice.org/sites/default/files/content-type/research-item/documents/2019-01/NIJC-Policy-Brief_Trump-Data-Manipulation_Jan2019.pdf

The Trump Administration’s Manipulation of Data to Perpetuate Anti-Immigrant Policies

The Trump administration regularly manipulates data to support its anti-immigrant agenda. Two weeks after President Trump shut down the federal government because Congress refused to approve funding to build a wall on the southern border, Homeland Security Secretary Kirstjen Nielsen presented a slideshow to the president’s Cabinet that was widely publicized for relying on inaccurate and heavily inflated numbers to create a sense of crisis in the border region.1 But it has long been a tried and true strategy for this administration’s agencies and government officials to misrepresent facts and figures and implement policy changes intentionally developed to gin up data points that prove a pre-established nativist narrative.

This policy brief describes how the administration has corrupted immigration data to fuel its anti- immigrant policy agenda. Particularly alarming examples include its manipulation of information and data to (I) undermine access to asylum; (II) exacerbate the due process crisis in the immigration courts; and (III) escalate the criminalization of migrants.

I. Crippling Asylum Access, then Touting Low Approval Rates

as Evidence of Fraud

The Trump administration made it nearly impossible for many people to get asylum, and now cites low grant rates to claim there are no legitimate asylum seekers.

The administration’s campaign to close the
border to asylum seekers began almost on
day one. President Trump’s February 2017
Executive Order on border security called for
higher standards for screening asylum
seekers’ fear of return.2 At the border,
Customs and Border Protection (CBP) has
intentionally reduced the processing of
asylum seekers at ports of entry3 and
doubled down on a so-called “metering”
system that numerically limits the number of
asylum seekers processed.4 Within the
immigration court system, Department of
Justice (DOJ) leadership has upended
longstanding case law to make it even more
difficult for survivors of gang-related and domestic violence to establish eligibility for asylum.5Unsurprisingly, these policies have shut off asylum protections for many applicants in need:

January 2019 immigrantjustice.org

under the Trump administration, denial rates for asylum applicants rose from 54.6 percent in fiscal year (FY) 2016 to 60.2 percent in FY 2017 and to 65 percent in FY 2018.6

The president and his Cabinet officials, after imposing such arbitrary obstacles to asylum, now claim that the resulting low asylum grant rates mean that most asylum seekers are here to “game the system,” as Acting Attorney General Matthew Whitaker recently stated after asserting that “only 20 percent of aliens have been granted asylum after a hearing before an immigration judge.”7 In his presidential proclamation attempting to ban certain migrants from asylum eligibility, President Trump stated that “only a fraction” of claimants at the southern border “ultimately qualify for asylum.”8

The fault in the president’s logic is so simple it’s easy to miss: the Trump administration made it nearly impossible for even the most bona fide refugee to obtain asylum, and now claims that applicants’ failures to win protection proves they filed applications for nefarious reasons. The administration is cynically using its own cruel policies to create facts designed to further more cruelty.

II. Distorting Immigration Court Representation and Appearance Data

The administration downplays the access to counsel crisis in our nation’s immigration courts, especially for children, and lies about the prevalence of non-appearance rates in immigration court.

Trump’s appointed officials frequently mislead Congress through incomplete and conflated data that obfuscates the due process crisis playing out every day in U.S. immigration courts. Most frequently, these misrepresentations downplay the critical importance of legal representation in immigration court proceedings and falsely suggest that the majority of immigrants do not appear for their scheduled immigration court hearings.

The DOJ Executive Office for Immigration Review’s (EOIR) own data shows that at least 60 percent of immigrant families in deportation proceedings appear for hearings, a statistic that rockets up to 98 percent when families are represented by counsel who can help them understand the court process.9 Among unaccompanied children, 67.6 percent overall and over 95 percent of minors with legal representation appear for their hearings.10

But in one recent hearing before the Senate Permanent Subcommittee on Investigations of the Homeland Security and Governmental Affairs Committee, EOIR Director James McHenry put forward several problematic representations of immigration statistics that

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subverted this reality.11 At one point, McHenry cited statistics from a program whose scope is limited to providing children’s parents or sponsors a basic legal orientation to argue that providing full legal representation is ineffective in ensuring children’s appearance in court.12During the same hearing, McHenry also blatantly misrepresented court appearance data, testifying without evidence that children in immigration court proceedings appear in court only 53 percent of the time.13

The president’s mischaracterization of this data has been even further removed from reality, including unsubstantiated claims that immigrants “never show up [to court], it’s like a level of 3 percent. They never show up for the trial.”14

Obfuscation about representation and appearance rates in immigration court is particularly harmful given how powerfully the deck is already stacked against immigrants in deportation proceedings. Although U.S. Immigration and Customs Enforcement (ICE) is represented in each proceeding by its own federal counsel, there is no right to counsel for indigent immigrants who cannot afford private representation. Nationally, only 37 percent of all immigrants and only 14 percent of detained immigrants are represented in their immigration court proceedings.15Representation is a particularly critical due process safeguard in immigration court, where people face life-altering consequences and need an expert in the law by their side to ensure they understand how to comply with complex court processes.16 Immigrants with attorneys are five times more likely to win their cases than those without attorneys.17 For detained immigrants, it can be nearly impossible to even present a case without counsel; those with attorneys are 11 times more likely to be able to seek a defense to deportation.18

III. Increasing Prosecutions to Inflate the Number of So-Called

“Criminal” Immigrants

The administration employs both the criminal justice and deportation systems to target immigrants, using its discretion to increase already sky-high prosecutions of immigrants and subsequently touting increased convictions to demonize immigrants.

The Trump administration is quite literally creating its own crime statistics by making it impossible for asylum seekers to present lawfully at ports and then choosing to prosecute as many people as possible for crossing the border elsewhere to request protection. In April 2017, the DOJ announced it would prioritize the prosecution of migration-related offenses,19a jarring announcement in light of the fact that migration-related prosecutions already constituted more than half of all federal prosecutions when the Trump administration took office.20 A year later, DOJ established a

3

“zero-tolerance” policy, whereby U.S. Attorneys Offices at the southwest border were instructed to prosecute all migrants entering between ports of entry under 8 U.S.C. § 1325, improper entry.21

Zero tolerance led to a spike of prosecutions along the southwest border, with a 30 percent increase from the month prior to the announcement of the policy.22 As Acting Attorney General Matthew Whitaker recently noted, in FY 2018, DOJ charged 85 percent more immigrants with unlawful entry than in FY 2017, and increased felony reentry prosecutions by over 38 percent.23Fueling the zero-tolerance policy was the administration’s concerted blockading of the southern border through illegal turnbacks and so-called “metering” of asylum seekers at ports of entry, both still ongoing, forcing many asylum seekers desperate to reach the safety of the United States to attempt to enter between ports.24

The administration utilizes the statistics resulting from these policies to conflate notions of criminality and immigration status in its policy and rhetoric. ICE routinely touts the high percentage of immigration-related criminal arrests and deportations that involve immigrants who enter outside a port of entry, yet increasingly these statistics reveal the extent to which the administration is cooking the books by driving up the rates of migration-related offenses. Most recently, in ICE’s FY 2018 data release, the agency specifically highlighted arrests of immigrants by “Criminality,” arguing that “the largest percentage of aliens arrested by ICE are convicted criminals (66 percent).” Of the categories of underlying criminal conduct, however, immigration-related offenses ranked as third with 51,249 immigrants.25 Similarly, CBP highlights immigrants convicted of both entry and reentry offenses, with statistics as of August 2018 demonstrating they were the leading type of convictions for so-called “criminal aliens,” representing 41 percent in FY 2017 and 47 percent of all convictions in the first eight months of FY 2018.26 While the administration frames these statistics to argue that migrants have become a greater threat, the story they really tell is of a federal agency that has become obsessed with punishing people for crossing the border.

Conclusion

The use of official government resources to paint groups of people as undesirable or criminal mirrors strategies employed by authoritarian regimes throughout world history who have sought to consolidate power, effectuate anti-democratic agendas, and provide a pretext for persecution. During World War II, the Nazi regime published a list of supposed crimes committed by the Jewish population.27 Russia’s current authoritarian regime regularly employs the criminal justice system to prosecute and convict LGBTQ individuals.28 Scapegoating minorities is one of the time-tested tools for dictators.29

Through data manipulation, the Trump administration is deftly employing the various levers of government to implement inherently flawed policy that criminalizes immigrants, subsequently touting that criminalization to vilify them. Collaterally, the administration manipulates or misrepresents data to impugn immigrants and their families as criminals who are undeserving of protection. The endgame is apparent—to build a foundation to enact policies that erode due process, increase incarceration of communities of color, and strip legal protections from immigrants. Congress and other stakeholders must hold this administration accountable and

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ensure that its anti-immigrant policies are not justified through the use of data or policy inherently designed to undermine basic human and civil rights.

Acknowledgments

This policy brief was authored by Jose Magaña-Salgado for the National Immigrant Justice Center. NIJC’s Heidi Altman and Tara Tidwell Cullen contributed to the report.

For questions, contact NIJC Director of Policy Heidi Altman at (312) 718-5021 orhaltman@heartlandalliance.org.

Endnotes

1 Philip Bump, “The administration is using heavily inflated numbers to argue for a border wall,” Washington Post, Jan. 4, 2019, https://www.washingtonpost.com/politics/2019/01/04/administration-is-using-heavily-inflated-numbers- argue-border-wall/?utm_term=.c72735337b9c.
2 Border Security and Immigration Enforcement Improvements, Exec. Order No. 13,767, 82 Fed. Reg. 8793, Jan. 25, 2017, https://www.federalregister.gov/documents/2017/01/30/2017-02095/border-security-and-immigration- enforcement-improvements.
3 Hamed Aleaziz, “The Trump Administration is Slowing the Asylum Process to Discourage Applicants, an Official Told Congress,” BuzzFeed, Dec. 17, 2018, https://www.buzzfeednews.com/article/hamedaleaziz/the-trump- administration-is-slowing-the-asylum-process-to.
4 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
5 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), https://www.justice.gov/eoir/page/file/1070866/download. This opinion is currently subject to litigation, with a preliminary, nationwide injunction in place as of December of 2018. Lauren Pearle, “Judge blocks Trump administration efforts to restrict asylum for migrants fleeing domestic and gang violence,” ABC News, Dec. 20, 2018, https://abcnews.go.com/Politics/judge-blocks-trump-administration-efforts- restrict-asylum-migrants/story?id=59913629; Grace, et al., v. Whitaker, No. 18-CV-01853 EGS (D.D.C. Dec. 19, 2018), available at https://www.aclu.org/legal-document/grace-v-whitaker-opinion. See also Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), https://www.justice.gov/eoir/page/file/1040936/download (undermining the right to an evidentiary hearing for asylum applicants).
6 TRAC Immigration, Asylum Decisions and Denials Jump in 2018, Nov. 29, 2018,http://trac.syr.edu/immigration/reports/539/.
7 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration. Asylum denials often have life and death consequences for individuals, with deported asylum seekers facing persecution and even death in their home countries. See Jaya Ramji-Nogales , Andrew I. Schoenholtz and Philip G. Schrag, Refugee Roulette, Disparities in Asylum Adjudication and Proposals for Reform, 2009; Sarah Stillman, “When Deportation is a Death Sentence,” The New Yorker, Jan. 15, 2018, https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a- death-sentence (documenting the harms awaiting immigrants deported back to their home countries, including violent deaths).
8 Proclamation No. 9822, 83 Fed. Reg. 57,661, Nov. 15, 2018,https://www.federalregister.gov/documents/2018/11/15/2018-25117/addressing-mass-migration-through-the- southern-border-of-the-united-states.
9 Human Rights First, Myth v. Fact: Immigrant Families’ Appearance Rates in Immigration Court, July 31, 2016,https://www.humanrightsfirst.org/resource/myth-vs-fact-immigrant-families-appearance-rates-immigration-court.
10 American Immigration Council, Children in Immigration Court: Over 95 Percent Represented by an Attorney Appear in Court, May 16, 2016, https://www.americanimmigrationcouncil.org/research/children-immigration-court-over-95- percent-represented-attorney-appear-court.
11 Permanent Subcommittee on Investigations, Homeland Security & Governmental Affairs Committee, U.S. Senate,Oversight of Efforts to Protect Unaccompanied Alien Children from Human Trafficking and Abuse, Aug. 16, 2018,https://www.hsgac.senate.gov/subcommittees/investigations/hearings/oversight-of-efforts-to-protect-unaccompanied- alien-children-from-human-trafficking-and-abuse.

12 Id. (exchange begins at 1:36:40). In this same hearing, Director McHenry also cited an EOIR-produced statistic that the “representation rate for UACs [unaccompanied immigrant children] in proceedings . . . whose proceedings have been pending for over a year is already 75 percent.” By focusing on representation for unaccompanied minors with cases pending for a year or more, Director McHenry excluded representation rates for cases completed in less than a year, namely cases where a judge ordered a minor deported in absentia (e.g. without the minor’s presence in the court) precisely because the minor did not have representation. See Denied a Day in Court: The Government’s Use of In Absentia Removal Orders Against Families Seeking Asylum 15, Catholic Legal Immigration Network, Inc. and the Asylum Seeker Advocacy Project, 2018, https://cliniclegal.org/sites/default/files/Denied-a-Day-in-Court.pdf. Looking at impartial data regarding representation rates provides a more sobering picture; as of November 2018, only 48 percent of unaccompanied minors had representation, regardless of how long their case had been pending. See Juveniles — Immigration Court Deportation Proceedings, TRAC Immigration, Nov. 2018,http://trac.syr.edu/phptools/immigration/juvenile.

13 McHenry Testimony, supra note 11, at 1:47:10.
14 Linda Qiu, “Trump’s Falsehood-Laden Speech on Immigration,” The New York Times, Nov. 1, 2018,https://www.nytimes.com/2018/11/01/us/politics/fact-check-trump-immigration-.html.
15 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016, https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.
16 Id.
17 Id.
18 Id.
19 Office of the U.S. Attorney General, Memorandum for all Federal Prosecutors, “Renewed Commitment to Criminal Immigration Enforcement,” Apr. 11, 2017, https://www.justice.gov/opa/press-release/file/956841/download.
20 TRAC Immigration, Immigration Prosecutions for December 2016, June 4, 2018,http://trac.syr.edu/tracreports/bulletins/immigration/monthlydec16/fil/; Cristobal Ramon, Federal Prosecutions of Illegal Immigrants, Bipartisan Policy Center, Mar. 27, 2018, https://bipartisanpolicy.org/blog/the-prosecution-pipeline/.
21 Office of the U.S. Attorney General, Memorandum for Federal Prosecutors along Southwest Border, “Zero- Tolerance for Offenses Under 8 U.S.C. § 1325(a),” Apr. 6, 2018, https://www.justice.gov/opa/press- release/file/1049751/download.
22 TRAC Immigration, Criminal Prosecutions for Illegal Border Crossers Jump Sharply in April, June 4, 2018,http://trac.syr.edu/immigration/reports/515/.
23 Office of Public Affairs, U.S. Department of Justice, Acting Attorney General Matthew Whitaker Delivers Remarks on the Importance of a Lawful Immigration System, Dec. 11, 2018, https://www.justice.gov/opa/speech/acting- attorney-general-matthew-whitaker-delivers-remarks-importance-lawful-immigration.
24 Human Rights First, Refugee Blockade: The Trump Administration’s Obstruction of Asylum Claims at the Border, Dec. 11, 2018, https://www.humanrightsfirst.org/resource/refugee-blockade-trump-administration-s-obstruction- asylum-claims-border.
25 U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, Fiscal Year 2018 ICE Enforcement and Removal Operations Report , Dec. 14, 2018,https://www.ice.gov/doclib/about/offices/ero/pdf/eroFY2018Report.pdf.
26 U.S. Customs and Border Protection, U.S. Department of Homeland Security, Criminal Alien Statistics – FY 2018(Oct. 23, 2018), https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-alien-statistics.
27 Amanda Erickson, “Adolf Hitler also published a list of crimes committed by groups he didn’t like,” The Washington Post, Mar. 2, 2017, https://www.washingtonpost.com/news/worldviews/wp/2017/03/02/adolf-hitler-also-published-a- list-of-crimes-committed-by-groups-he-didnt-like/ (“There’s a reason Trump’s opponents are so worried. This strategy — one designed to single out a particular group of people, suggesting that there’s something particularly sinister about how they behave — was employed to great effect by Adolf Hitler and his allies. In the 1930s, the Nazis used a similar tactic to stir up anger and hatred toward Jews.”).
28 The Council for Global Equality, The Facts on LGBT Rights in Russia, accessed Jan. 2, 2019,www.globalequality.org/component/content/article/1-in-the-news/186-the-facts-on-lgbt-rights-in-russia.
29 Bruce Bueno de Mesquita and Alastair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics, 2012.

Images from The Noun Project. Credits: Robbe de Clerck, Adrien Coquet, Luis Prado, and SBTS

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It’s time for some House Oversight of the ridiculous mess at EOIR and the lies, fabrications, and intentional distortions that support the restrictionist enforcement agenda of what once purported to be a “court system” but now is a “CINO” (“Court in Name Only”) — an unapologetic adjunct of DHS Enforcement (their “partner” according to the now departed Sessions). Amazingly, it’s actually much worse than the dysfunction that led to the removal of the Immigration Courts from the “Legacy INS’ and establishment of a supposedly “independent” EOIR within DOJ in the first place, in 1983.

Then, I don’t think INS was intentionally falsifying anything or carrying out a political agenda in the Immigration Courts. Honestly, the “Legacy INS’ was simply ethically and administratively incompetent to run a due process court system.

But, to the credit of all involved during the Reagan Administration, including then Commissioner Al Nelson and General Counsel “Iron Mike” Inman, we recognized the problem and acted to solve it. We also saw that a “level playing field” and a more independent Immigration Court would gain credibility with the Article III courts, which would benefit INS enforcement. We even got then Associate Attorney General Rudy Giuliani to endorse the “divestiture program.”

Although the first Director of EOIR, David Milhollan, who was also the BIA Chair, and the first Chief Immigration, Judge William R. Robie, were both stalwart Republicans, neither brooked interference from “Main Justice” with their operations. They were particularly proud and assertive of their independence from INS. Indeed “we’re not INS” became the “mantra” of the “early EOIR.”

Milhollan, having moved EOIR Headquarters across the river to Falls Church, VA more or less hoped that at some point DOJ would forget that EOIR every existed. He occasionally sent a little “excess money downtown” to ensure that the “Main DOJ” and the Attorney General would have only “kind thoughts” about EOIR and would otherwise leave him alone. Up to a certain point, it worked.

Sadly, for all of its original promise and development during its first two decades, the “EOIR Experiment” has turned out to be a disastrous failure. It’s quite painful for those of us who devoted large chunks of our professional lives and emotionally invested in the effort to make EOIR a “real” court.

The idea that a court system can operate independently and provide fairness, impartiality, and due process within the now thoroughly politicized DOJ is simply a non-starter. It’s basically a “return to the Nixon Administration” which is where I came in, with the hope of “learning the ropes” and eventually being able to help in some small way to create “good government” and a better America.

Unfortunately, a divided Congress and an Administration bent on destroying our Constitution and democratic institutions are unwilling and/or unable to put “Eyore” out of its misery. That means that innocent lives will continue to be wrongfully destroyed and Constitutional Due Process mocked until the next generation can put the “malicious incompetence” of Trumpism behind us and advance our nation and the world to a better, fairer, more realistic and inclusive future. That’s what the “New Due Process Army” is all about!

PWS

02-15-19

TRAC IMMIGRATION: Latest Stats Strongly Suggest That Immigration Court Bond Decisions Are At Best A “Crapshoot,” & At Worst A Farce — Factors Other Than Due Process, Fairness, & Consistent Application Of Transparent Criteria Appear To Control Freedom From So-Called “Civil” Imprisonment Without Conviction!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

The chances of being granted bond at hearings before immigration judges vary markedly by nationality, as do required bond amounts. Court hearing locations also appear to influence bond outcomes even for the same nationality.

Currently less than half of detained immigrants with bond hearings were granted bond – 48 percent during FY 2018, and 43 percent thus far during FY 2019. The median bond amount was $7,500 in FY 2018, and rose to $8,000 during the first two months of FY 2019.

Differences among nationalities are striking. Currently more than three out of every four individuals from India or Nepal, for example, were granted bond, while only between 11 and 15 percent of immigrants from Cuba received a favorable ruling. And those from China were less likely to receive a favorable ruling than are those from India or Nepal.

The median bond for immigrants from the Philippines was just $4,000, while those from Bangladesh were required to post $10,000-$12,000. These and many other findings are based on a detailed analysis of court records covering all of FY 2018 and the first two months of FY 2019 by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. The bond hearing-by-bond hearing records were obtained by TRAC under the Freedom of Information Act from the Executive Office for Immigration Review (EOIR).

A brand new free web query tool now allows the public for the first time to examine in detail the bond experience by hearing location for any nationality. The new app covers outcomes in Immigration Court bond hearings as well as subsequent case dispositions after detained immigrants are granted bond.

To read the full report, go to:

https://trac.syr.edu/immigration/reports/545/

To examine the underlying results for any nationality, go to:

https://trac.syr.edu/phptools/immigration/bond/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through November 2018. For an index to the full list of TRAC’s immigration tools go to:

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

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

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

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

http://facebook.com/tracreports

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

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

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

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

The U.S. Immigration Court System has deep Constitutional Due Process, fundamental fairness, and quality control issues that are being intentionally swept under the carpet by the Trump Administration in an attempt to just “move ’em out, to hell with the law, Constitution, or human rights.” And, while the Article IIIs occasionally step in, they are basically complicit in allowing this parody of justice affecting life and freedom to go on without honest, effective, professional judicial administration and accountability. Don’t get me started on Congress which created and then abandoned this dysfunctional mess that they mindlessly allow to continue in a “death spiral” that threatens to take the integrity of the entire U.S. justice system down with it.

These problems can be solved! But, not as long as politicos in the DOJ are involved and improperly and unethically using the Immigration Courts as an adjunct of ICE Enforcement.

And, remember that ability to be released on bond pending removal proceedings is often “outcome determinative.” Those free on bond can usually get attorneys, prepare and document a case for relief, and have a decent chance of prevailing. Those forced to proceed in DHS detention (a/k/a the “New American Gulag”) are usually “shot like fish in a barrel” — with little chance of understanding, preparing, or presenting a case.

Then, there is the intentionally and inherently coercive effect of detention in the DHS’s substandard, sometimes life threatening, “Gulag.” Detainees too often are treated like statistics rather than human beings with rights. That’s how politicos “jack up” removal statistics. But, it bears little resemblance to Due Process or justice in any independent court system in America.

That’s why we need the “New Due Process Army” fighting every day to make the unkept, now openly disregarded, promise of “guaranteeing fairness and Due Process to all” of those appearing in our Immigration Courts a reality rather than a sick joke!

PWS

02-13-19

🤡”CLOWN COURT REPORT” — “ADR [“Aimless Docket Reshuffling”] is the watchword” — Yeah, it’s hard times under the Big Top (particularly if you’re in search of elusive and officially maligned Constitutionally-required Due Process!)

🤡🤡🤡🤡🤡

🤡”CLOWN COURT REPORT” — “ADR [“Aimless Docket Reshuffling”] is the watchword” — Yeah, it’s hard times under the Big Top (particularly if you’re in search of elusive and officially maligned Constitutionally-required Due Process!)

An inherently reliable, highly anonymous source deep within America’s most dysfunctional court system tells Courtside: “ADR is still the watchword. No telling how many cases are off calendar at this point.”

Origins of the term “Clown Court” 🤡 (it actually preceded the Trump Administration):

Once upon a time, when I was an Immigration Judge, I was assigned to do a 100-case Master Calendar by televideo to a court in another state. Slight problem: All of the files were in a third place. Another hitch: All of the ICE Assistant Chief Counsel’s files had been sent to the wrong office. In other words, no “government files” of any kind for 100 cases. Adding to the degree of difficulty: EOIR sent me a Spanish interpreter; but almost everyone on the calendar actually spoke French or a West African language (something clearly shown in the EOIR “computer system,” such as it was). I “finished” with this circus about 5 pm. But, none of my colleagues was around. They were in the conference room. I burst through the door and yelled “This is ——————— Clown Court.” Unfortunately, the then Chief Immigration Judge was making one of his rather infrequent visits to our Court. Needless to say, he wasn’t amused by my sudden outburst of unvarnished truth. Fortunately, he happened to be a long-time friend who owed his original hiring at the “Legacy INS” as well as several “up-ladder career moves” largely to me when I was the Deputy General Counsel/Acting General Counsel. So, I survived to “perform under the big top” another day. And remember, this was back when the Immigration Court was actually better managed by comparison with today’s intentional “man-made disaster.” Then, it was “quirky,” but not necessarily “beyond the pale.” It’s been straight downhill since. Every time we think it’s hit bottom, DOJ and EOIR management seem to dig a little deeper.

PWS

01-31-19

PROVING MY POINT: DOJ/EOIR “NO-SHOW” STATS LIE, PARTICULARLY WHEN IT COMES TO ASYLUM SEEKERS!

http://immigrationimpact.com/2019/01/30/asylum-seekers-show-up-for-court/

Aaron Reichlin-Melnick writes for Immigration Impact:

Immigration restrictionists have often repeated a bold and erroneous claim: that there is a serious problem of asylum seekers who come to the U.S. border and disappear once released from detention. But both fact-checkers and independent studies show this is not true. In reality, the vast majority of asylum seekers diligently attend all of their immigration court hearings.

Given that studies consistently show a high appearance rate for asylum seekers, why do some people keep getting this wrong? Boiled down to its simplest answer: the only government measurement on failures to appear in court has been unreliable for years.

If an immigrant fails to appear for a scheduled immigration court hearing, they may be issued an order of removal “in absentia” (or “while absent”). Each year, the Executive Office for Immigration Review (EOIR) reports the total number of cases that were “completed” by immigration judges. The government report looks at cases that finished with a grant of relief from removal or an order of removal, as well as the percent of case completions which involved an order of removal for failure to appear.

In Fiscal Year 2017, there were 41,384 orders of removal for failure to appear issued out of 149,436 total cases completed. EOIR reported this as a 28 percent failure to appear rate. However, immigration court cases often require multiple hearings before they can be completed and, due to skyrocketing backlogs in the last decade, the average immigration court case takes almost three years to complete.

The government’s statistic counts failures to appear only against the number of cases that are fully completed. By doing this, it neglects to account for the many immigrants who appeared in court in ongoing cases that have not yet reached completion.

As a result, because tens of thousands of immigrants appeared in court in 2017 but did not have a case completed, EOIR’s number does not represent the rate at which immigrants missed court.

Since there are now more than 800,000 people in immigration court, the failure to include these incomplete cases is extremely misleading.

In addition, by only reviewing initial case completions, the statistic doesn’t consider cases where an immigrant missed court through no fault of their own (like in the event of an emergency) and then successfully overturned a removal order. According to an analysis from the Transactional Records Access Clearinghouse (TRAC), excluding cases where the immigrant successfully overturned a removal order for failure to appear “significantly impacts and reduces the calculated rates.”

From 2012 to 2017, over 1.25 million new cases were filed in immigration court, but only 151,000 removal orders were issued for failure to appear; 13.5 percent of the total. When looking only at 2017, cases in which an immigrant was ordered removed for failure to appear constituted just five percent of the 802,503 cases pending or completed in immigration court.

Despite the flaws with using the failure to appear rate as a proxy for the rate at which immigrants miss court proceedings, the government continues to use this number to make policy. This is a mistake; good policy can only be made based on good data.

Given this error, what is the actual rate at which immigrants fail to appear in court? Unfortunately, there is no exact answer for this. But a series of studies has made one thing clear: the vast majority of asylum-seekers attend all their immigration court hearings.

The Detaining Families report, for example, reviewed every case between 2001 and 2016 where a family was detained by ICE and then released. It determined that 86 percent of families had not missed a single court hearing. This number rose to 96 percent when a member of the family filed an application for asylum.

Other studies have come to similar conclusions. According to a review of immigration court records by TRAC, only 22.9 percent of the 167,219 women and children who entered the United States between 2014 and 2017 were ordered removed for failure to appear. Those who managed to obtain counsel were the most likely to appear for their hearings; only 2.3 percent of that group were ordered removed for failure to appear.

Even government studies show similar results. In 2018, U.S. Citizenship and Immigration Services published a study analyzing the outcomes of every person encountered by Customs and Border Protection in 2014. Of the roughly 60,000 individuals who sought asylum at the border that year, only 14 percent had been issued an order of removal that ICE was not able to carry out—likely because the asylum-seeker failed to appear in court and fled.

As long-term studies show, when you actually track individual cases from start to finish, most asylum-seekers diligently appear in court. The government should make policy based on this reality and not their own flawed metrics.

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

Trump, Miller, Nielsen, Sessions, Whitaker, and the rest of the “Band of Sycophants” make immigration policy based on a false White Nationalist agenda incorporating intentional lies, distortions, misrepresentations, and racist myths.

Not only do the stats show that asylum applicants show up for Immigration Court, but the also show a high correlation between represented respondents and appearance.

Rather than disgracefully wasting money on all sorts of expensive, ineffective, and often illegal “gimmicks,” one of the best things the Government could do is work with NGOs, pro bono organizations, and the private bar to achieve “universal representation.” It’s much more “doable” and infinitely more effective than the “Wall folly.” The Government could also help facilitate more trained, non-attorney “accredited representatives” to increase Asylum Office and Immigration Court representation.

Instead, Jeff Sessions slandered and went out of his way to disrespect immigration lawyers and make their already difficult jobs next to impossible. And, Nielsen went out of her way to bar, that’s right, bar, attorneys from initial interviews under her inaptly named “Migrant Protection Protocols.” Those protocols also obviously are a thinly veiled attack on representation at the Immigration Court level.

The Trump Administration and its motley crew of corrupt political officials should be confronted with and held accountable for their tireless lies and White Nationalist distortions that endanger the lives and rights of migrants. Harm to one of the most vulnerable among us is harm to all! And, intentional and unnecessary harm to the most vulnerable is a staple of the Trump Administration!

PWS

01-31-19

CLOWN COURTS: EOIR CONTINUES ASSAULT ON DUE PROCESS, DUMBING DOWN JUDICIARY WITH CREATION OF HAZY “IMMIGRATION ADJUDICATION CENTERS” TO MASS PRODUCE REMOVALS BY TV WITHOUT DUE PROCESS!

http://immigrationimpact.com/2019/01/07/the-judicial-black-sites-the-government-created-to-speed-up-deportations/

Katie Shepard writes in Immigration Impact:

As the Tru. mp administration continues to strip away due process in immigration courts, the recent creation of two “Immigration Adjudication Centers” is cause for concern. The two new facilities are called “Centers,” not “courts,” despite being places where judges decide whether to issue orders of deportation.

The Centers came out of a “Caseload Reduction Plan” devised by the Executive Office for Immigration Review (EOIR) as one of several mechanisms designed to reduce the number of cases pending before the immigration courts. This initiative first surfaced in December 2017 ostensibly as one of a series of ways to address the record-high backlog within the immigration court system. In fact, EOIR’s caseload has almost tripled since 2011, from fewer than 300,000 pending cases to 810,000 as of November 2018. This is likely to worsen given the current government shutdown.

A total of fifteen Immigration Judges currently sit in the two Centers—four in Falls Church, Virginia, and 11 in Fort Worth, Texas.

It is unclear whether the Centers are open to the public, despite laws stating such hearings must be. All the cases heard by immigration judges in the Centers will be conducted exclusively by video-teleconference (VTC), with immigrants, their lawyers, and prosecutors in different locations.

According to one source, it’s likely that “thousands of immigration cases will be heard with respondents never seeing a judge face-to-face.”

The utter lack of transparency around these Centers is alarming, given the documented concerns with the use of video teleconferencing and the current administration’s commitment to speed up immigration court hearings, even at the risk of diminished due process.

Speeding up cases could benefit detained individuals who often languish for months or even years behind bars before their release or deportation. However, the impact of these Centers overall could be much more ominous.

The Centers raise serious questions about whether detained immigrants will be disadvantaged by the arrangement. These questions include:

How will an individual who is unrepresented and detained in a facility three time zones away from the judge submit critical evidence to the court during a hearing?

How can an immigration judge adequately observe an asylum seeker’s demeanor for credibility without being in the same room?

Will the immigration judges be required to postpone hearings if there are issues with the telephonic interpreters, and could this lead to prolonged detention?

Further, only 14 percent of detained immigrants have attorneys and many may not have the ability to adequately prepare for their cases on an expedited timeframe. A very real outcome of speeding up cases in this manner is that many immigrants are deported even though they may have valid claims to stay in the United States.

Until the government is more transparent with these Centers, there is simply no way of knowing how many detained individuals—including children—have been deported without the opportunity to obtain counsel, and without appropriate safeguards preventing their removal to imminent harm.

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

The degrading “de-judicilization” of the Immigration Courts under the Trump DOJ politicos and their EOIR subordinates continues. I suppose next Immigration Judges will be retitled as “Special Inquiry Officers” or “Removal Adjudicators.”

Hopefully, EOIR will get some much needed oversight and accountability from the House.

PWS

01-11-19

TAL @ SF CHRON: Dreamer Deal To End Shutdown Seems Unlikely — PLUS BONUS COVERAGE: My Essay “Let’s Govern!”

https://www.sfchronicle.com/politics/article/Why-a-DACA-deal-to-end-the-shutdown-is-unlikely-13517915.php?t=e29fabd761

Tal reports:

WASHINGTON — A perennial trial balloon is once more floating on the horizon: Could protecting young undocumented immigrants from deportation in exchange for border security money get Washington out of a lengthy government shutdown?

The idea is already rapidly falling back to Earth.

President Trump and House Speaker Nancy Pelosi, D-San Francisco, have both brushed aside suggestions that passing protections like the Deferred Action for Childhood Arrivals program could be a way out of the shutdown, which is nearing the end of its third week with no hint of a resolution.

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DACA temporarily protects many undocumented immigrants who arrived in the U.S. under the age of 16 from being deported. Trump, whose attempt to end DACA is tied up in the courts, said Sunday that he would “rather have the Supreme Court rule and then work with the Democrats” on extending protections for program recipients.

“They’re two different subjects,” Pelosi said last month when asked about trading DACA for Trump’s southern border wall — $5.7 billion for which he is demanding before he will sign any government funding bills for the agencies that have been shut down.

Democrats are not universally against the idea. San Mateo Rep. Jackie Speier told MSNBC last week that she “personally would support it” and “there is a willingness to look” at a DACA-for-wall money deal in the caucus. DACA protections for nearly 700,000 immigrants nationwide, 200,000 of whom are in California, are in limbo, and hundreds of thousands more would be eligible for the program.

But numerous other Democrats — including several on the influential Hispanic, Asian Pacific and black caucuses that have leadership’s ear on immigration — said a DACA deal involving wall money is a nonstarter in shutdown negotiations without serious and uncharacteristic overtures from Trump.

Here’s why it’s unlikely:

Trump thinks time, and the Supreme Court, are on his side. The White House believes the court will ultimately invalidate the Obama-era DACA program or side with Trump’s attempt to end it, which has been blocked by lower courts. When that happens, the administration believes, Trump will have more leverage to cut a better deal with Democrats desperate to keep sympathetic young DACA recipients from being deported, and Congress will be forced to deal with a dilemma it has long avoided.

Democrats don’t trust Trump, who has walked away from a number of DACA proposals in the past year. “Donald Trump is not a deal-maker, he’s a deal-breaker,” said Rep. Ruben Gallego, D-Ariz. “We’ve seen this happen numerous times, and we’re not going to come approach him with a deal that he’s only going to take and then reject and then come back and move the goalposts on.”

Pelosi is in touch with her base, and her base isn’t eager to broach that deal. “People don’t want to trade a wall for something that isn’t even real,” said Rep. Pramila Jayapal, D-Wash., co-chair of the Congressional Progressive Caucus. “People don’t want a wall, period, and I think there’s no trust that there’s any credible negotiation around something positive on immigration, given (Trump’s) history.”

Trump wants much more on immigration than just physical border security, where there are some areas of potential compromise. A presentation that Homeland Security Secretary Kirstjen Nielsen prepared for congressional leaders last week included calls not just for the wall, but the rollback of a bipartisan bill designed to protect human trafficking victims and a court-ordered settlement intended to safeguard immigrant children. Both of those are nonstarters with Democrats, who say the protections are needed and getting rid of them does not promote border security.

Republicans question whether Democrats are as motivated as they say they are to resolve the DACA issue. They’re skeptical Democrats want to take the political leverage off the table. Rep. Mario Diaz-Balart of Florida, a moderate Republican who has long worked on immigration reform, called the potential to get a deal out of the shutdown fight the “opportunity of a lifetime.”

“It requires the Democratic leadership to actually do something that they have not done in the past,” Diaz-Balart said, “which is match their rhetoric on DACA with actual action.”

Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.com Twitter: @talkopan

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HERE’S YOUR “BONUS COVERAGE” ESSAY FROM “COURTSIDE:”

LET’S GOVERN!

By

Paul Wickham Schmidt

United States Immigration Judge (Retired)

I still think the best deal for America would be some form of “Wall for Dreamers” compromise. To me, the huge downside of “The Wall” would be more than offset by getting 800,000 great American young people — literally the future of our country – out of the shadows and contributing their maximum skills, talents, and creativity to making America really great (not the hollow mockery of “greatness’ peddled by Trump and his base).

But, Tal’s usually got her head “closer to the ground” than I do these days from my retirement perch in Alexandria. So, I’ll assume for the purposes of this piece that Tal is correct and that the “great compromise” isn’t in the cards – at least at this time.

So, where does we go from here? This is crystal clear: Trump can neither govern in America’s best interest nor can he cut any reasonable deal. So, it seems like the only alternative for America is for the Democrats in Congress to get together with the GOP and develop a plan for governing in the absence of a competent Executive. That means passage of “veto-proof” legislation that also places some specific limits and directions on Executive actions.

What could a “veto proof” compromise to reopen Government look like. Well, of course, to start it must fund the affected Government agencies through the end of the fiscal year.

But, it also could include a robust $5.9 Million “Border Security” package. Here’s what could be included:

Additional Asylum Officers;
Additional port of entry inspectors;
Additional Immigration Judges and court staff;
Additional funding for Office of Refugee Resettlement for health and safety of children;
Required e-filing and other management improvements at EOIR (including elimination of counterproductive “quotas” on judges, and providing at least one judicial law clerk for each judge);
Additional Assistant Chief Counsel for ICE;
Funding for counsel for asylum applicants and resettlement agencies;
Additional Anti-Smuggling, Intelligence, and Undercover Agents for DHS;
Smart Technology for and between ports of entry at the border and the interior;
Required improvements in management planning, hiring, and supervision within DHS;
Limitations on wasteful immigration detention (including a prohibition on long-term detention of children except in limited circumstances) and reprogramming of detention funds to alternatives to detention;
Funding for additional border fencing or fencing repairs in specific areas with an express prohibition on additional physical barriers without a specific appropriation from Congress.
Assistance to Mexico, the UNHCR, and other countries in the hemisphere to improve refugee processing and address problems in the Northern Triangle;

Sure, Trump could, and maybe would, veto it – although he’d be wise not to. And, I suppose, that veto, which would be overridden, could be the “red meat” for his base that he apparently favors over the “art of governing.”

But, in the meantime, Congress would fulfill its important role of governing in a bipartisan manner that will keep America moving forward even in the times of a weak and incompetent Executive. And, unlike the bogus “Wall,” the foregoing measures would actually contribute to our country’s security and welfare without wasting taxpayers’ money or trampling on individual rights and legal obligations. In other words, “smart governance.” That seems like a fair and worthy objective for both parties in Congress.

PWS

01-09-19

IMMIGRATION COURTS: WILL TRUMP’S SHUTDOWN BE THE FINAL NAIL IN THE COFFIN? — Demoralized, Backlogged, Mismanaged, Immigration Courts Experiencing A New Wave Of Politically Caused “Aimless Docket Reshuffling,” As More Cases That Should Have Been Completed Are Mindlessly “Orbited” to 2021 & Beyond Because Of Trump’s Intransigence!

https://www.washingtonpost.com/world/national-security/shutdown-worsens-strain-on-us-immigration-system/2019/01/02/97dd0ef6-0ebe-11e9-84fc-d58c33d6c8c7_story.html

Nick Miroff reports in the WashPost:

. . . .

The Executive Office for Immigration Review, the immigration court system run by the Justice Department, did not respond to requests for comment, because its public affairs staff has been furloughed.

But Ashley Tabaddor, president of the National Association of Immigration Judges, the union that represents the country’s approximately 400 judges, said the impact of the disruption has been “immense.”

Immigration judges all received furlough notices on Dec. 26, she said, but many have since been instructed to return to court to adjudicate cases of detainees in immigration custody. The judges are also working without pay.

Some of those judges have their calendars booked three to four years in advance because of the backlog of cases, Tabaddor said, so hearings that have been canceled in recent days cannot be rescheduled until 2021 or beyond.

“The irony is not lost on us,” Tabaddor said, “that the immigration court is shut down over immigration.”

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

Read Nick’s complete report at the link.

This confirms what many have been saying all along: Trump neither knows nor cares about effective immigration enforcement. No, he’s all about blowing racist “dog whistles” for the benefit of a White Nationalist “base.”

I remember how previous shutdowns were the beginning of the “Aimless Docket Reshuffling” that has so damaged our Immigration Courts and artificially jacked up the backlog. First, the politicians show their disdain for the Government they are supposed to be running and the civil servants who are actually doing the work of that Government. Then the politicos at DOJ show their disrespect by designating most Immigration Court functions as “nonessential.” Then, when work resumes, EOIR basically says “no heroics, just put all the cancelled cases at the end of the docket.” So much for urgency, priorities, Due Process, and respect.

In fact, an operating, well-staffed, highly professional Immigration Court with expertise in asylum and other complex provisions of immigration law and an unswerving commitment to enforcement of Due Process for all individuals within its jurisdiction is essential for effective immigration enforcement. Indeed, this was “at least one central reason” for the removal of the Immigration Courts from the “Legacy INS” and the establishment of EOIR as a separate quasi-judicial entity within the DOJ during the Reagan Administration.

For a time, EOIR made substantial progress toward professionalism and judicial independence until the advent of Attorney General John Ashcroft and his notorious nativist sidekick Kris Kobach in 2001. Thereafter, it’s been pretty much straight downhill, starting with Ashcroft’s trashing of the BIA and continuing through Sessions’s gross mismanagement and overt attacks on judicial independence, due process, and substantive asylum law.

Today, the Immigration Court system is in shambles, unable to provide either consistent fairness and Due Process to respondents or timely removal orders for those who might be legitimate enforcement priorities for the DHS. The BIA fails to provide true deliberation, commitment to Due Process, and expertise, particularly in the areas of asylum, CAT, and the provisions for removal of certain criminals. This, in turn, erodes deference and debilitates efficient review from the “real” Article III Courts.

The Trump Administration has made a complete hash out of the immigration laws. However, at some point, reasonable, responsible leadership will return to the political scene. When it does, an independent Article I U.S. Immigration Court must be at or near the top of the legislative agenda.

Until then, the dysfunction will increase unless and until the Article IIIs figure out and impose a temporary fix. Otherwise, they are likely to have little if any judicial time to devote to anything other than the chaos thrust upon them by the rapidly failing Immigration Court system.

PWS

01-05-19

BOGUS BACKLOG BUILDS! — DOJ Politicos Use Trump Shutdown As Excuse To Shutter Most US Immigration Courts, Creating More Backlogs & “Aimless Docket Reshuffling!”

Immigration Court Operating Status During Lapse in Appropriations
During the current lapse in appropriations, the following operating status is in place for EOIR:
Detained docket cases will proceed as scheduled.
Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.

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

The above “official notice” from EOIR is a striking reminder that we have idiots running our Government, starting at the very top. These are folks who can invent a “national emergency” over a few thousand desperate migrants waiting for routine legal processing at our border. But, the same folks can’t come up with a rationale for keeping the vast bulk of the nation’s already collapsing Immigration Courts operating. Since the system isn’t automated either, the result will be more backlog and more of the “Aimless Docket Reshuffling” for which DOJ and EOIR are infamous.

Notably, most of DHS appears to be “up and running” even without appropriations.

In my thirteen years a the Arlington Immigration Court, I was usually “nonessential,” but occasionally “essential” during various shutdowns, depending on the whims of the politicos at DOJ and the EOIR front office. So, the problem pre-existed this Administration. Indeed, mindless shutdowns over the years helped contribute mightily to both backlog and morale problems at the U.S. Immigration Courts. There’s no better way to “demotivate” people than to tell them that their work is “non-essential.”

During the 2013 “shutdown,” then D.C. Mayor Vincent Gray, never known as the most creative politician to hold office, simply declared every D.C. employee “essential” — and he got away with it.

The next time that this or any other Administration, or Congress, tries to blame their bogus, self-created Immigration Court “backlog” on migrants, their lawyers, Immigration Judges, or EOIR line court employees, just “call B.S.” Know and remember who’s causing the real problems in this beleaguered, politicized, and totally mismanaged mess of a “court” system (a/k/a “Clown Court”)!

PWS

12-26-18

Data Lacking on Why Immigration Courts Not Overwhelmed with Family Cases

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LET’S GOVERN!

By

Paul Wickham Schmidt

United States Immigration Judge (Retired)

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