Writing Fellow
The American Prospect
PHOTO: The American Prospect
https://prospect.org/justice/2023-01-19-immigration-case-backlog-title-42/
JAROD FACUNDO in The American Prospect:
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All of these particularities matter, because once all available options have been exhausted, cases generally end up inside an immigration court before an immigration judge. The administrative snarls that predate a case before it arrives in immigration court are thus a result of policy from the top, for better or worse.
On paper, courts are supposed to be independent bodies. They are supposed to be immune from the political agendas of other government operatives or serve as independent mediators that can rectify previous errors.
But immigration courts are not. As a part of the Justice Department, at the end of the day, they work under the attorney general. While other courts function under a de jure practice of independence, immigration courts are held to the same standard despite not possessing the same protections that allow other judges to carry out their basic job functions. This creates an impossible work environment for immigration judges to fairly adjudicate every case with the attention it deserves. Instead, their measurements of success are based on accomplishing the president’s goals, which are translated into quotas for immigration courts. For example, Biden administration officials touted removing 1.3 million migrants last year.
As the Prospect has previously reported, immigration judges have long pointed out the tenuous environment they must work in.
But later this month, the Federal Labor Relations Authority (FLRA) will be hearing from the National Association of Immigration Judges (NAIJ) over whether or not their union will be reinstated. The FLRA will now have a majority of Biden appointees.
A dysfunctional immigration system can only start to work with independent courts. But that change can only happen through congressional action. In the meantime, a never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.
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Many thanks to prodigious immigration commentator Nolan Rappaport for passing this along to me.
There is consensus among experts that an independent Article I Immigration Court is urgently needed and long overdue. There is also a consensus that the chance of achieving this critical legislative change with a GOP-controlled House is zero. At the same time, we must remember that Dems didn’t exactly give any priority to this essential and far-reaching reform when they had “unified control” over the political branches.
There is also consensus that in the absence of Article I there are things that Garland and the Biden Administration could and should have done administratively that would have drastically improved the due process, expertise, quality, efficiency, “customer service,” and professionalism of EOIR.
Gee whiz, a Harvard Law student figured it out! They have constructive suggestions for administrative reforms to change culture, improve training, place docket control in the hands of judges not politicos and bureaucrats, increase independence, improve quality, and insulate IJs from the political whims and enforcement agendas of each Administration. See https://wp.me/p8eeJm-8hE?
But, a Harvard Law grad, long-time Federal Judge, and Supremes’ nominee, and his band of supposedly smart and high-powered political lieutenants couldn’t or wouldn’t get it done for a Dem Administration? Gimmie a break!
A Dem Administration that was supposed to get us beyond the cruelty, White Nationalism, xenophobia, and “malicious incompetence” of the Trump Administration falls flat on its face on a critical and achievable part of immigration reform and racial justice in America! Go figure!
Meanwhile, the cries of pain keep coming from those subjected to Garland’s dystopian “courts!”
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Had an “interesting” IH today with this IJ. [IJ] denied my motion to continue the case by email the evening before the 8:30 am hearing, even though I had four IHs scheduled in the same time slot and had filed a motion to continue a month before the hearing. [IJ] refused to grant me a few minutes to speak with OPLA counsel before the hearing to narrow issues, saying that discussion should have already taken place. [IJ] spent an inordinate amount of time on housekeeping issues. [IJ] read a list of “rules.” [IJ] would insist that counsel stand when they spoke. [IJ] would routinely deny motions for webex hearings. [IJ] went through the biographical information excruciatingly slowly, including having the respondent spell the names of all the riders, provide their birth dates, etc.
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It was a case where DHS had stipulated to 42b and the only issue would’ve been discretion but the IJ didn’t care. [IJ] told me to let everyone know that [IJ] reads each and every single document submitted in . . . court from back to front and . . . has a lot of questions . . . . [IJ] went on to conduct a full hearing, chastised DHS for stipulating, made a big deal of every little thing, asked irrelevant questions about medicaid forms that [client] may have filled for her children (not included as part of evidence), insinuated that she committed medicaid fraud, and made the ACC change position on each and every issue.
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[The IJ] denied the asylum application of a young gay man from El Salvador. This is a first for me, in my 20+ years of asylum practice. We’ve never lost such a case that I can recall.
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The facts are pretty typical – the kid lived a life of humiliation and abuse in El Salvador due to his sexual orientation; tried to commit suicide several times; and ultimately left the country when the Mara 18 tried to get him to deliver marijuana for them. Arguably, not a strong case for past persecution, but such cases typically prevail where a judge fairly evaluates a claim of well-founded fear of future persecution and considers the country condition reports and articles about the horrendous human rights abuses against the LGBT community in El Salvador. This didn’t fly with IJ. [IJ] simply said “there is no meaningful evidence in the record to demonstrate that the Respondent would experience harm amounting to persecution in El Salvador” and then went on to say that the client would likely experience more bullying and discrimination, but that doesn’t mean it would be persecution. [IJ] did not mention any country conditions report or article from the record to support his ruling.
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[T]he DHS attorney called me directly after the hearing to empathize and tell me that it’s well-known even on their side that this judge is a piece of work and it’s always a good idea to take PD if offered.
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[T]his judge is a menace. I don’t know what to do to protect my clients from [IJ] other than prepare strong BIA appeals.
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This is the third email I have received to schedule MORE cases. No one will tell me what the goal is. I’ve put them on notice of the health issues this is/has been causing me.
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Please tell the higher ups that this practice of overscheduling the private bar is taking a serious toll on practitioners’ health. Medical documentation is below and attached. I’m really not sure why the court has felt the need to overschedule practitioners to this level, but it is really taking a serious toll on everyone. Can someone please shed light on this urgent need to overwhelm the limited number of defense attorneys we have in the area?
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- Another outstanding Immigration Court practitioner told me that they had left courtroom practice and taken a “research and writing” position because the EOIR courtroom “experience” under Garland was so dehumanizing, demoralizing, stressful, and life consuming!
- A different attorney called me with concerns that an IJ’s “over the top” abuse of pro bono counsel would discourage others from taking cases in Immigration Court.
IJ’s wasting time; discouraging negation and stipulation by parties; taking over hearings; abusing continuance discretion; failing to abide by Cardoza & Mogharrabi; showing bias; producing wildly inconsistent anti-immigrant results; showing thin knowledge of law; rudely treating counsel and clients; over-scheduling; abusing power; endangering the health of those appearing before them; driving practitioners to leave the EOIR courtrooms; discouraging pro bono!
Everything that is NOT what a fair, independent, court of law should be is present and allowed, perhaps even encouraged, in Garland’s broken EOIR! Why is this type of grotesque mismanagement, bad judging, unprofessional conduct, and disregard of fundamental due process “business as usual” under a Dem Administration?
This “star chamber” system needs new, expert, progressive, due-process-focused, free from political hackery and inane gimmicks, “kick-ass” management! Garland isn’t getting the job done!
Meanwhile, the Biden Administration’s incredibly short-sighted and legally flawed “Miller Lite” asylum and border policies, of which Garland’s broken EOIR and unwillingness to stand up for human rights are a critical part, have “gone over like a lead balloon” with younger progressive Dems in Congress. See, e.g., https://link.vanityfair.com/click/30312106.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.
These younger progressives are exactly the “core support” that Dems will need to win future elections! How does “dissing” them with inept leadership and ineffective nativist-derived immigration policies help the cause?
Honestly, what a mess! Garland’s dystopian EOIR is the Democratic Party’s shame!
🇺🇸 Due Process Forever!
PWS
02-22-23
