BIDEN PLAN TO REFORM ASYLUM SYSTEM @ THE BORDER MAKES SENSE, BUT ONLY IF CORRECTLY IMPLEMENTED WITH THE RIGHT PERSONNEL — The Devil 👿 Is In The Details & Major Progressive Judicial Reforms @ EOIR ⚖️ Are A Prerequisite! — “Early Returns” On Actually Solving Immigration/Human Rights/Due Process Problems From “Team Biden” Not Encouraging!☹️

Frranco Ordonez — Franco Ordonez
White House Correspondent
NPR
PHOTO: Twitter

https://www.npr.org/2021/04/01/982795844/biden-administration-considers-overhaul-of-asylum-system-at-southern-border

Franco Ordonez reports for NPR:

President Biden’s top advisers promise “long-needed systemic reforms” to address a backlog of more than 1 million asylum cases in the immigration court system, which often keeps people applying for asylum waiting years to resolve their cases. That could mean some big changes to how asylum cases are processed at the southern border.

The plan the Biden administration is considering to speed up the process would take some asylum cases from the southern border out of the hands of the overloaded immigration courts under the Department of Justice and instead handle them under the purview of the Department of Homeland Security, where asylum officers already process tens of thousands of cases a year, two people familiar with the discussions who were not authorized to speak about administration plans told NPR exclusively.

Those familiar with the discussions say one outcome could be discouraging unauthorized migration. That’s because those who can argue for a certain fear of persecution are able to gain temporary residence and often a work permit as they wait out their cases.

. . . .

Advocates say they welcome a more efficient system, provided changes are not used as a way to expedite removals as the Trump administration did.

Eleanor Acer of Human Rights First says there are a host of reasons to allow asylum officers to conduct the first set of interviews and reduce the numbers, but she says it’s important that applicants have a chance to appeal to the court before being removed.

“The massive backlog must be dealt with,” she said. “But the answer to that problem is not to deprive asylum seekers of due process and a fair hearing, or to weaponize the asylum process to try to deter other people from seeking U.S. protection.”

The Biden administration has already ended two of the Trump administration’s programs, the Prompt Asylum Case Review and the Humanitarian Asylum Review Program, that were designed to quickly return Mexican and Central American asylum seekers suspected of having invalid claims.

POLITICS

House Passes 2 Bills Aimed At Overhauling The Immigration System

Department of Homeland Security officials declined to discuss plans to shift border cases to the asylum division.

But an administration official said last week they are now working on a number of policies and regulations to create “a better functioning asylum system.”

That includes establishing refugee processing in the region and strengthening other countries’ asylum systems.

Biden also resurrected the Central American Minors program that reunited children with parents who are in the United States legally.

The Biden administration is now seeking to “pick up the pieces” after the Trump administration, with a different set of policies that abide by U.S. law but also international obligations, Meissner said.

“We need to have access to asylum,” Meissner said, “but it needs to be done in a way that can be prompt and fair, not in a way that leads to waits of years and years and court backlogs.

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

Read the complete article at the link.

Why it could work:

Granting relief at the lowest level of the system is cost effective;
It’s easier to hire, train, and assign Asylum Officers than Immigration Judges;
Immigration Court time should be reserved for those cases where there is a real issue as to whether relief can be granted.

Why it probably won’t work:

Leadership is critical. Right now, there are only a few experts in government with the knowledge, proven leadership ability, organizational skills, and courage to lead this program.
- Two obvious names that come to mind are Judge A. Ashley Tabaddor, currently USCIS Chief Counsel, and Judge Dana Leigh Marks, one of the “founding mothers” of U.S. asylum law and pioneer of the well-founded fear standard. Both are past Presidents of the NAIJ. Neither has yet been tapped for this assignment.
- By contrast, there are a number of experts in the private/NGO sector who could lead this effort. Obvious choices would be Judge Paul Grussendorf, former Immigration Judge, Asylum Officer, UN Representative, and professor; Professor Karen Musalo, Director, Center for Refugee & Gender Studies, UC Hastings Law; Eleanor Acer, Senior Director, Refugee Protection, Human Rights First (quoted in this article); Professor Michele Pistone, Creator and Founder of the VIISTA asylum training program at Villanova Law; Professor Phil Schrag, Co-Director of the CALS Asylum Clinic at Georgetown Law and author of Baby Jails and the upcoming release The End of Asylum; Michelle Mendez, Director, Defending Vulnerable Populations at CLINIC; or Judge Ilyce Shugall of our Round Table. But, nobody of that caliber has been tapped either.
- Without creative, dynamic, expert leadership, and a different approach to personnel, the program will be yet another bureaucratic failure. In case nobody has noticed, after four years of never ending abuse, gross mismanagement, and intentional misdirection by the Trump kakistocracy, the USCIS Asylum & Refugee program is also in shambles — demoralized, disorganized, leaderless, incredibly backlogged. An obvious untapped source is retired Asylum Officers and Adjudicators who could be brought back on a limited-term basis, intensively trained by experts from a “Better EOIR,” and who often are in a position to travel frequently and on short notice.

It’s not about deterrence. Already, this article speaks of “possible deterrent effect.” WRONG! The purpose of an asylum adjudication system is to provide fair, timely, generous adjudications of asylum eligibility in accordance with the letter and spirit of the Refugee Act of 1980, the U.N. Convention and Protocol on which it is based, and the due process clause of our Constitution. We have never had such a system, which inevitably would be more orderly and efficient, but also result in many more grants.
- The main reason why we don’t currently have a functioning asylum system, and never have had the system that asylum seekers need and deserve, is that the system is at the mercy of a bogus Executive-controlled “court” system that time and time again has been compromised by politicos seeking who use it as an enforcement tool rather than an independent court of justice.
  - In 2014, the last year that I taught Refugee Law & Policy at Georgetown Law I “graded” the U.S. Asylum system at “B-.” Not as good as it should be, but not as bad as it could be.
  - Now I’d give it an “F.” Completely dysfunctional, highly arbitrary, and a tool of institutionalized racism and White Nationalism.
- The system is ineffective as a deterrent. There is no known basis to believe that quick and often arbitrary and wrongful “rejections” are an effective deterrent. That’s particularly true because rejections are seldom explained in a reasonable, understandable manner. So, to the extent that there is a “message” it’s that you got the wrong officer or the wrong judge on the wrong day or that the U.S. legal system is inherently unfair and should be avoided by hiring a smuggler to get you to the interior of the U.S. where, as a practical matter, you have a better chance of obtaining “de facto refuge.”
- The only “efficiency and leverage” that comes from the Asylum Officer system is in quickly identifying and consistently granting a substantial number of applications. That, and only that, does actually relieve the Immigration Court system of unnecessary cases. Otherwise, “non-grants” still have to go to the Immigration Courts for de novo review. I probably granted the majority of asylum cases “referred” from the Asylum Office. That leaves plenty of room to believe that a better trained and operated system with some positive guidance and effective supervision by better Immigration Judges and a truly expert BIA would achieve substantially higher grant rates and higher efficiency at the Asylum Office, thereby keeping many cases out of court and speeding the process for asylees to obtain permanent residence and eventually U.S. citizenship!

Some assumptions appear invalid. This article also repeats the unproven assumption that a fair, just, and efficient asylum system would result in rejection of the majority of cases. I doubt that.
- Prior to the Trump disaster, approximately 75-80% of asylum applicants at the Southern Border passed “credible fear.” That the majority of them never achieved asylum was due less to the lack of merit in their claims than to factors such as: 1) lack of a system to match asylum seekers with qualified counsel; 2) wrong-headed anti-asylum precedents from the BIA that were specifically directed against asylum seekers from Latin America — basically institutionalized racism in the guise of “enforcement;” 3) poor selection, training, and motivation of Immigration Judges some of whom simply did not treat asylum seekers fairly, nor were they given any incentive to do so.
- I granted asylum or other protection to many refugees from the Northern Triangle. I probably could have granted twice that number had the BIA precedents actually fairly and reasonably interpreted asylum law to specifically cover gender-based claims and claims arising from persecution by gangs basically operating “in lieu of government authorities” in most of the Northern Triangle.
- Additionally, an honest interpretation of the CAT by the BIA would have allowed life-saving protection to be extended to many others who lacked nexus but had a high probability of torture with Government acquiescence upon return. I believe that a return to the original Acosta-Kasinga line of asylum analysis and adoption of proper CAT interpretations along the lines set forth by the (exiled) dissenting judges in Matter of J-E- would result in grants of some type of protection (asylum, withholding, or CAT) in the majority of Southern Border cases coming from the Northern Triangle that passed credible fear or reasonable fear.
- Asylum, along with refugee status, is a key form of legal immigration to the U.S. There is absolutely nothing wrong with that. It’s NOT a “loophole.” It’s the law! Studies by groups of experts such as CMS have shown the huge benefits that refugees confer on the U.S. I have no reason to believe that asylum seekers as a group are any different.
- As long as we keep treating the reality of human migration and the strengths and humanity of asylum seekers as a negative rather than a positive, we will continue to fail, as we have for decades, to fully comply with either our own laws or international conventions.

A broken, dysfunctional, unfair EOIR will continue to drag American justice down. There must be de novo review of denials by EOIR and far, far more competent review and direction in the review of credible fear denials by EOIR. A better BIA could actually set binding precedents on “credible fear” and “reasonable fear.”
- Currently, EOIR is incapable of producing either consistently fair results (particularly for asylum seekers) or the inspired legal scholarship and leadership for the asylum system to be functional and held accountable. It’s going to require all new leadership, an all new BIA, elimination of all of the Trump-era precedents that impede fairness for asylum seekers, new merit-based selection criteria for Immigration Judges, professional administration from judicial experts, and an immediate slashing of the largely self-created “backlog” of 1.3 million cases by closing and removing from the docket every case more than a year old that doesn’t relate to a priority (most are folks who would be covered by Biden’s legalization program anyway; many are eligible for relief that USCIS could grant) to get EOIR in a position to provide the necessary legal guidance and system accountability for the Asylum Office. The absurdist notion that we could or would want to remove every one of the 10-11 million undocumented residents (many performing essential services that propped us up through the pandemic) is one of the “big lies” that has prevented rational reforms of our immigration system.
- In plain terms, EOIR needs an immediate “rebuild” with a new progressive, humanitarian judiciary of experts. There is no early indication that Judge Garland either understands that “mission-critical” need or has a plan for achieving it.

As we say in the business the “devil is in the details.” Right now, I can see neither the details nor the leadership in place or “in the pipeline” to solve the debilitating problems in our asylum system that actually are undermining the entire U.S. justice system.

Biden could fix it. But, I wouldn’t count on it. That means that the only real fix in the offing will be for the NDPA to force the Administration to “get it right” through aggressive, never-ending litigation as well as continuing to seek better legislators. Highly inefficient. Yet, sometimes it’s the only way to get the attention of those in power.

If nothing else, we’ll continue to make an important historic record of the cruelty and stupidity with which the current asylum system is being administered. It doesn’t have to be this way. We can always choose to follow our “better angels.” It just takes the courage and the good judgement to get the right folks in the right jobs to make it happen.

Due Process Forever!

PWS

04-01-21

THANKSGIVING 🙏🏼 UPDATE ON ROUND TABLE 🛡⚔️ BATTLES FROM SIR JEFFREY! — Mostly Wins, One Disappointment!

Hon. “Sir” Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Hi all: A few outcomes right before the holiday (two good, one bad):

(1) The Fourth Circuit just granted the motion for rehearing en banc in Portillo-Flores v. Barr, in which the Round Table filed an amicus brief. This was a decision with a very problematic unwilling/unable determination by two judges (the petitioner, who was 14 when the events occurred, stated on the third time he was asked that it was possible the police might have taken some action), and a very strongly worded dissent.

(2) In a bond case in the Second Circuit in which we also filed an amicus brief in a case represented by Legal Aid., Arana v. Barr, the petitioner was released from custody today after having two prior requests denied. Legal Aid believes our brief was helpful in achieving that result. Counsel is expecting a stipulation for dismissal without prejudice.

(3) The bad news: in a petition to the 4th Circuit in support of CAIR Coalition involving Matter of A-B- issues, the 4th Cir. denied the petition for review, but did so in an unpublished decision.

Wishing everyone a very safe and happy Thanksgiving!

All my best, Jeff

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

Thanks, Sir Jeffrey!

I’m so thankful for all of the fantastic work that you and our other knightesses and knights of the Round Table do to keep due process and best practices on the forefront and spread truth in the face of tyranny, lies, and false narratives. While we often focus on the weekly amicus briefs we file with tribunals across the nation, the work also goes on in analysis, public speaking, media interviews, teaching, political involvement, video appearances, and grass roots pro bono and community work.

For example, our amazing colleague Judge Charlie Pazar of Tennessee just reported that he was featured on a CLE panel entirely devoted to the work and impact of our Round Table! Way to go Charlie! You are one of those who tirelessly works to improve American justice on all levels and you are certainly “super generous” in sharing your time, knowledge, expertise, and perspective!

Just recently, Sir Jeffrey, along with Round Table knightesses Judge Denise Slavin and Judge Sue Roy, in addition to yours truly and our friend NAIJ President Judge Ashley Tabaddor, were quoted by Suzanne Monyak in a Law360 article about the future of the NAIJ and the Immigration Court in a Biden Administration. Sadly, the article is “hidden behind the pay wall,” but those with access can read it in its entirety.

Compare these unselfish, teamwork-oriented, effective, expert professional activities aimed at improving the justice system and access to it for everyone with the disgraceful, ignorant, divisive, counterproductive, and often downright racist and illegal actions of the current regime’s immigration kakistocracy, starting, but by no means ending, with the deadly ☠️⚰️🏴‍☠️ “EOIR Clown Show” 🤡!

Think what a “Better EOIR” and a “better bureaucracy,” led by members of the NDPA could do to solve problems, promote the rule of law and best practices, and make “equal justice for all” a reality rather than a false promise that is intentionally never fulfilled! It isn’t rocket science. But, it does take replacing the kakistocracy, on all levels, throughout Government with experts from the NDPA committed to achieving “good government in the public interest.”

Due Process Forever!

PWS

11-27-20

🤡🤡POLITICIZED “CLOWN COURTS” BEHOLDEN TO DOJ POLITICAL HACKS CONTINUE TO THREATEN PUBLIC HEALTH IN ADDITION TO ERADICATING DUE PROCESS WHILE FECKLESS CONGRESS AND ARTICLE IIIS LOOK ON !

Josh Gerstein reports for Politico:

https://www.politico.com/news/2020/03/17/anger-virus-dangers-immigration-courts-134709

Anger builds over virus dangers in immigration courts

After protests, Trump administration makes late-night move to scale back deportation hearings

Prior to the curtailment announced Tuesday night, a spokeswoman for the DOJ unit said: “EOIR continues to evaluate the information available from public health officials to inform the decisions regarding the operational status of each immigration court. “

However, individual scheduled hearings were not covered by the Sunday announcement nor were those for those in detention. “All other hearings proceeding,” the twitter message that night said.

One immigration judge dismissed the limitation announced Sunday as a “drop in the bucket.”

Immigration court participants complained that they were being notified by late-night Twitter posts rather than a more detailed public announcement of how the risks and benefits were being weighed.

“The immigration courts need to close. Period,” said Jeremy McKinney of the American Immigration Lawyers Association. “Most of these hearings can wait in order to put the safety of the public first….Close the courts for a few weeks until screening and proper testing can be done.”

Closing the immigration courts altogether would create thorny issues, particularly for immigrants who are being held in custody. Such a move would likely trigger legal challenges on due process grounds.

However, immigration lawyers said there are workarounds for many of the issues, including handling bond hearings via written filings and conducting hearings by video or teleconference. Video conferencing is already used to beam detainees into hearings in many courts.

Morning Shift

Get the latest on employment and immigration, every weekday morning — in your inbox.

Still, some of the steps being promoted by lawyers for immigrants could be viewed as undermining aspects of the Trump administration’s aggressive enforcement policies.

Immigrant advocates are urging the administration to “parole” into the U.S. asylum applicants sent back to Mexico under the remain-in-Mexico policy. That would be similar to the prior policy that administration officials derided as “catch and release.”

Several court participants said they found it ironic that immigration courts were largely shuttered during a government shutdown last year when their personnel were deemed non-essential, but the same personnel were told this week they are essential and must report to work despite officials at all levels of government urging Americans to remain home if at all possible.

“What is outrageous is that our non-detained courts were shut down for the government furlough, for political reasons,” said Dana Leigh Marks, a San Francisco immigration judge and former president of the judges’ union. “Yet, here we have a health emergency and no action.”

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

Gee, it’s not like there aren’t thousands and thousands of us out here who have been pointing out for years the outrageous unconstitutionality and threat to our country presented by these “captive courts” under the Trump regime! It’s also not that they haven’t already killed folks: certainly their politicized misapplication of asylum and other protection laws have done just that! But, do we really have to have them mindlessly spreading an epidemic to have folks take notice!

We need regime change in November! We also need a re-examination of the composition of our Article III Judiciary, specifically on the Supremes and Courts of Appeals, to determine why so few Federal Appellate Judges have had the guts and integrity to stand up for the Constitution, the rule of law, and human decency in the time of crisis and in the face of patent Executive incompetence and tyranny. The “institutional failures” go well beyond the continuing farce in the Immigration Courts and the inexcusable failure of the regime to be better prepared for crisis.

Due Processe Forever! Clown Courts Never!🤡🤡

PWS

03-18-20

BORDER CLOSINGS GO BOTH WAYS: Guatemala Refuses More U.S. Deportations — Regime’s “4-D” Approach About To Hit a Brick Wall?

Molly O’Toole
Immigration Reporter
LA Times

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=e7303b6a-98d8-40e2-af8f-cc25ea5200ab&v=sdk

Molly O’Toole and Cindy Carcamo report for the LA Times:

GUATEMALA CITY — Guatemala on Tuesday became the first Central American nation to block deportation flights from the United States in an effort to prevent the spread of the coronavirus, a dramatic turnabout on Trump administration policies barring entry to asylum seekers from the region.

Guatemala’s Foreign Ministry announced that all deportation flights would be paused “as a precautionary measure” to establish additional health checks. Ahead of the announcement, President Alejandro Giammattei said in a Monday news conference that Guatemala also would close its borders completely for 15 days.

“This virus can affect all of us, and my duty is to preserve the lives of Guatemalans at any cost,” he said.

Guatemala, a major source of migration to the United States as well as a primary transit country for people from other nations headed to the U.S.-Mexico border, in recent days has blocked travelers from the U.S., as well as arrivals from Canada and a few European and Asian countries.

The Guatemalan government under Giammattei’s new administration had confirmed six coronavirus cases as of Monday morning. But it has taken a hard tack in its response to the pandemic to try to prevent the rapid spread seen in North America and elsewhere, becoming among the first in the region to bar entry of Americans.

Other nations in the Western Hemisphere, including El Salvador, Honduras, Panama, Colombia, Ecuador, Argentina, Chile and Peru, also have taken steps to bar foreigners and, in some cases, to shut their borders, including to their own returning citizens.

Guatemala’s move to refuse deportations will have a significant impact on the Trump administration’s efforts to ramp up a controversial agreement under which the United States sends migrants who are seeking asylum in the United States to Guatemala instead, even those who aren’t Guatemalan citizens.

The deal between the U.S. and Guatemala, called the Asylum Cooperative Agreement, denies the asylum seekers the opportunity to apply in the United States for refuge and instead allows them only to seek asylum in Guatemala.

Guatemala’s highest court initially blocked the agreement. Since November, the U.S. has sent Guatemala more than 900 men, women and children who have arrived at the border from El Salvador and Honduras.

. . . .

On Monday, the ACLU and other groups filed suit against ICE, seeking the release of immigrants in detention who are particularly vulnerable to COVID-19. Immigration judges, prosecutors and lawyers also called on the Justice Department to close immigration courts.

Judge A. Ashley Tabaddor, president of the National Assn. of Immigration Judges, said judges had been told to continue holding hearings with immigrants during the health crisis.

“Call DOJ and ask why they are not shutting down the courts,” she said, referring to the Justice Department.

O’Toole reported from Guatemala City and Carcamo from Los Angeles. Times staff writer Maura Dolan in Orinda, Calif., contributed to this report.

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

Read the full article at the link.

I suppose that the regime will just start dumping all deportees from all countries in Mexico. But, viruses know no borders.

To date, Mexico’s reported number of coronavirus cases is much lower than the U.S. However, we don’t know whether or not that is a product of there actually being fewer cases or Mexico having poor testing and reporting procedures. But, eventually what happens in Mexico will affect the U.S. Of that, we can be sure. And, no wall or Executive Order will stand in the way.

Seems like it would be a good time for some mutual cooperation between the U.S. and Mexico to determine the best mutually effective ways of handling border control issues in the time of pandemic, consistent with controlling the spread of disease in both countries. The regime did reach an agreement with Canada on border limitations today. But, when dealing with countries to our south, the regime has shown a strong preference for unilateral actions or bogus “agreements” obtained by duress and threats.

In any event, the end of direct deportations by air could be a consequence of the pandemic. And, given the limitations on detention and its health risks, the regime might be forced to come up with other approaches on how best to treat all persons within our borders, whether we like it or not. The regime’s “4-D Immigration Policy” — Detain, Deny, Deport, Distort — might be “hitting the wall.”

Still not clear what’s happening in the Immigration Courts.

PWS

03-18-20

EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!

CNN Digital Expansion 2019, Priscilla Alvarez
Politics Reporter, CNN

Trump administration puts pressure on completing deportation cases of migrant children

By Priscilla Alvarez, CNN

Updated 6:57 PM ET, Wed February 12, 2020

(CNN)The Trump administration is reinforcing a tight deadline for immigration cases of unaccompanied migrant children in government custody in an effort to make quicker decisions about deportation, according to an email obtained by CNN.

The message seems designed to apply pressure on immigration judges to wrap up such cases within a 60-day window that’s rarely met and falls in line with a broader effort by the administration to complete immigration cases at a faster speed.

Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said deadlines are “putting the judge between a rock and a hard place.”

“The only thing that can get done within 60 days is if someone wants to give up their case or go home or be deported,” Tabaddor told CNN.

The Executive Office for Immigration Review, which oversees the nation’s immigration court system, sent the email last month to assistant chief immigration judges, reminding them that unaccompanied children in government custody are to be considered the same as detained adults for purposes of scheduling cases.

While the 60-day deadline cited in the email is not new, it’s difficult to meet for cases of unaccompanied kids, in part, because of the time it takes to collect the relevant information for a child who comes to the United States alone. As a result, cases can often take months, if not years, to resolve.

Last year, an uptick in unaccompanied children at the US-Mexico border strained the administration’s resources. Over the course of the 2019 fiscal year, Border Patrol arrested around 76,000 unaccompanied children on the southern border, compared to 50,000 the previous fiscal year.

Unaccompanied children apprehended at the southern border are taken into custody by the Department of Homeland Security and referred to Health and Human Services. While in care at shelters across the country, case managers work to place a child with a sponsor in the United States, like a parent or relative.

Like adults and families who cross the US-Mexico border, unaccompanied children are put into immigration proceedings to determine whether they can stay in the United States.

The email from EOIR, dated January 30, says unaccompanied migrant children who are in the care of the government should be on a “60-day completion goal,” meaning their case is expected to be resolved within 60 days. It goes on to reference complaints received by the office of the director, but doesn’t say who issued the complaints or include a punishment for not meeting the completion goal.

EOIR spokeswoman Kathryn Mattingly told CNN that she could not comment on internal communications.

Golden McCarthy, deputy director at the Florence Immigrant and Refugee Rights Project, which works with unaccompanied migrant children, said “it does take time to reach out to” a child’s caretaker or adults in the child’s life.

“We all know that many times the child doesn’t necessarily have the full picture of what happened; it does take time to reach out to caretakers and adults in their lives to understand,” McCarthy said.

Initiatives designed to quickly process cases have cropped up before.

The Obama administration tried to get cases scheduled more expeditiously but deferred to the judges on the timeline thereafter, whereas the Trump administration’s move seems to be an intent to complete cases within a certain timeframe, according to Rená Cutlip-Mason, chief of Programs at the Tahirih Justice Center and a former EOIR official.

The Trump administration also appears to be getting cases scheduled faster. In Arizona, for example, the Florence Immigrant and Refugee Project has begun seeing kids called into immigration court earlier than they had been before.

In a statement submitted to the House Judiciary Committee in January, the group detailed the cases of children, one as young as 10 years old, who appeared before an immigration judge within days of arriving to the US.

“I think our clients and the kids we would work with are resilient,” McCarthy, the deputy director at the project, said. “But to navigate the complex immigration system is difficult for adults to do, and so to explain to a kid that they will be going to court and a judge will be asking them questions, the kids don’t typically always understand what that means.”

It can also complicate a child’s case since he or she may eventually move to another state to reunify with a parent or guardian, requiring the child’s case to move to an immigration court in that state.

Under the Trump administration, the Justice Department has rolled out a slew of other policies — such as imposing case quotas — to chip away at the nearly one million pending cases facing the immigration court system. Some of those controversial policies have resulted in immigration judges leaving the department.

In its latest budget request to Congress, the White House called for $883 million to “support 100 immigration judge teams” to ease the backlog.

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

How to build a 1.3 million case backlog with no end in sight: Anatomy of “Aimless Docket Reshuffling:”

2014: Obama Administration “prioritizes” unaccompanied minors, throwing existing dockets into chaos;
2017: Trump Administration “deprioritizes” unaccompanied minors, creating more docket chaos;
2020: Trump Administration “reprioritizes” unaccompanied minors, creating more docket chaos;
Result:
- Unfairness to unaccompanied minors rushed through the system without due process;
- Unfairness to long-pending cases continuously “shuffled off to Buffalo:”
- Gross inconvenience to the public;
- Demoralized judges whose dockets are being manipulated by unqualified bureaucrats for political reasons;
- Growing backlogs with no rational plan for resolving them in the foreseeable future.

This reminds me of my very first posting on immigratoncourtside.com – from Dec. 27, 2016 —

SAVING CHILD MIGRANTS WHILE SAVING OURSELVES

By Paul Wickham Schmidt

They cross deserts, rivers, and territories controlled by corrupt governments, violent gangs, and drug cartels. They pass through borders, foreign countries, different languages and dialects, and changing cultures.

I meet them on the final leg of their trip where we ride the elevator together. Wide-eyed toddlers in their best clothes, elementary school students with backpacks and shy smiles, worried parents or sponsors trying to look brave and confident. Sometimes I find them wandering the parking garage or looking confused in the sterile concourse. I tell them to follow me to the second floor, the home of the United States Immigration Court at Arlington, Virginia. “Don’t worry,” I say, “our court clerks and judges love children.”

Many will find justice in Arlington, particularly if they have a lawyer. Notwithstanding the expedited scheduling ordered by the Department of Justice, which controls the Immigration Courts, in Arlington the judges and staff reset cases as many times as necessary until lawyers are obtained. In my experience, retaining a pro bono lawyer in Immigration Court can be a lengthy process, taking at least six months under the best of circumstances. With legal aid organizations now overwhelmed, merely setting up intake screening interviews with needy individuals can take many months. Under such conditions, forcing already overworked court staff to drop everything to schedule initial court hearings for women and children within 90 days from the receipt of charging papers makes little, if any, sense.

Instead of scheduling the cases at a realistic rate that would promote representation at the initial hearing, the expedited scheduling forces otherwise avoidable resetting of cases until lawyers can be located, meet with their clients (often having to work through language and cultural barriers), and prepare their cases. While the judges in Arlington value representation over “haste makes waste” attempts to force unrepresented individuals through the system, not all Immigration Courts are like Arlington.

For example, according to the Transactional Records Clearinghouse at Syracuse University (“TRAC”), only 1% of represented juveniles and 11% of all juveniles in Arlington whose cases began in 2014, the height of the so-called “Southern Border Surge,” have received final orders of removal. By contrast, for the same group of juveniles in the Georgia Immigration Courts, 43% were ordered removed, and 52% of those were unrepresented.

Having a lawyer isn’t just important – it’s everything in Immigration Court. Generally, individuals who are represented by lawyers in their asylum cases succeed in remaining in the United States at an astounding rate of five times more than those who are unrepresented. For recently arrived women with children, the representation differential is simply off the charts: at least fourteen times higher for those who are represented, according to TRAC. Contrary to the well-publicized recent opinion of a supervisory Immigration Judge who does not preside over an active docket, most Immigration Judges who deal face-to-face with minor children agree that such children categorically are incompetent to represent themselves. Yet, indigent individuals, even children of tender years, have no right to an appointed lawyer in Immigration Court.

To date, most removal orders on the expedited docket are “in absentia,” meaning that the women and children were not actually present in court. In Immigration Court, hearing notices usually are served by regular U.S. Mail, rather than by certified mail or personal delivery. Given heavily overcrowded dockets and chronic understaffing, errors by the Department of Homeland Security (“DHS”) in providing addresses and mistakes by the Immigration Court in mailing these notices are common.

Consequently, claims by the Department of Justice and the DHS that women and children with removal orders being rounded up for deportation have received full due process ring hollow. Indeed a recent analysis by the American Immigration Council using the Immigration Court’s own data shows that children who are represented appear in court more than 95% of the time while those who are not represented appear approximately 33% of the time. Thus, concentrating on insuring representation for vulnerable individuals, instead of expediting their cases, would largely eliminate in absentia orders while promoting real, as opposed to cosmetic, due process. Moreover, as recently pointed out by an article in the New York Times, neither the DHS nor the Department of Justice can provide a rational explanation of why otherwise identically situated individuals have their cases “prioritized” or “deprioritized.”

Rather than working with overloaded charitable organizations and exhausted pro bono attorneys to schedule initial hearings at a reasonable pace, the Department of Justice orders that initial hearings in these cases be expedited. Then it spends countless hours and squanders taxpayer dollars in Federal Court defending its “right” to aggressively pursue removal of vulnerable unrepresented children to perhaps the most dangerous, corrupt, and lawless countries outside the Middle East: El Salvador, Guatemala, and Honduras. The Board of Immigration Appeals (“BIA”), the institution responsible for enforcing fairness and due process for all who come before our Immigration Courts, could issue precedent decisions to stop this legal travesty of accelerated priority scheduling for unrepresented children who need pro bono lawyers to proceed and succeed. But, it has failed to act.

The misguided prioritization of cases of recently arrived women, children, and families further compromises due process for others seeking justice in our Immigration Courts. Cases that have been awaiting final hearings for years are “orbited” to slots in the next decade. Families often are spread over several dockets, causing confusion and generating unnecessary paperwork. Unaccompanied

children whose cases should initially be processed in a non-adversarial system are instead immediately thrust into court.

Euphemistically named “residential centers” — actually jails — wear down and discourage those, particularly women and children, seeking to exercise their rights under U.S. and international law to seek refuge from death and torture. Regardless of the arcane nuances of our asylum laws, most of the recent arrivals need and deserve protection from potential death, torture, rape, or other abuse at the hands of gangs, drug cartels, and corrupt government officials resulting from the breakdown of civil society in their home countries.

Not surprisingly, these “deterrent policies” have failed. Individuals fleeing so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras have continued to arrive at a steady pace, while dockets in Immigration Court, including “priority cases,” have mushroomed, reaching an astonishing 500,000 plus according to recent TRAC reports (notwithstanding efforts to hire additional Immigration Judges). As reported recently by the Washington Post, private detention companies, operating under highly questionable government contracts, appear to be the only real beneficiaries of the current policies.

It doesn’t have to be this way. We could save lives and short-circuit both the inconsistencies and expenses of the current case-by-case protection system, while allowing a “return to normalcy” for most already overcrowded Immigration Court dockets by using statutory Temporary Protected Status (known as “TPS”) for natives of the Northern Triangle countries. Indeed, more than 270 organizations with broad based expertise in immigration matters, as well as many members of Congress, have requested that the Administration institute such a program.

The casualty toll from the uncontrolled armed violence plaguing the Northern Triangle trails only those from Syria, Afghanistan, and Iraq. TPS is a well- established humanitarian response to a country in crisis. Its recipients, after registration, are permitted to live and work here, but without any specific avenue for obtaining permanent residency or achieving citizenship. TPS has been extended among others to citizens of Syria and remains in effect for citizens of both Honduras who needed refuge from Hurricane Mitch in 1998 and El Salvador who needed refuge following earthquakes in 2001. Certainly, the disruption caused by a hurricane and earthquakes more than a decade ago pales in comparison with the very real and gruesome reality of rampant violence today in the Northern Triangle.

Regardless, we desperately need due-process reforms to allow the Immigration Court system to operate more fairly, efficiently, and effectively. Here are a few suggestions: place control of dockets in the local Immigration Judges, rather than bureaucrats in Washington, as is the case with most other court systems; work cooperatively with the private sector and the Government counsel to docket cases at a rate designed to maximize representation at the initial hearings; process unaccompanied children through the non-adversarial system before rather

than after the institution of Immigration Court proceedings; end harmful and unnecessary detention of vulnerable families; settle ongoing litigation and redirect the talent and resources to developing an effective representation program for all vulnerable individuals; and make the BIA an effective appellate court that insures due process, fairness, uniformity and protection for all who come before our Immigration Courts.

Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to “stem the tide.” It is time to demand an immigrant justice system that lives up to its vision of “guaranteeing due process and fairness for all.” Anything less is a continuing disgrace that will haunt us forever.

The children and families riding the elevator with me are willing to put their hopes and trust in the belief that they will be treated with justice, fairness, and decency by our country. The sole mission and promise of our Immigration Courts is due process for these vulnerable individuals. We are not delivering on that promise.

The author is a recently retired U.S. Immigration Judge who served at the U.S. Immigration Court in Arlington Virginia, and previously was Chairman and Member of the Board of Immigration Appeals. He also has served as Deputy General Counsel and Acting General Counsel of the former Immigration and Naturalization Service, a partner at two major law firms, and an adjunct professor at two law schools. His career in the field of immigration and refugee law spans 43 years. He has been a member of the Senior Executive Service in Administrations of both parties.

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

Tragically, as a nation, we have learned nothing over the past more than three years. Things have actually gotten much, much worse as we have unwisely and unconscionably entrusted the administration of our laws to a cruel, corrupt, scofflaw regime that sees inflicting pain, suffering, and even death on children and other vulnerable seekers of justice as an “end in an of itself.” They actually brag about their dishonesty, racism, selfishness, contempt for human decency, and “crimes against humanity.”

So far, they have gotten away nearly “Scot-free” with not only bullying and picking on vulnerable children and refugee families but with diminishing the humanity of each of us who put up with the horrors of an authoritarian neo-fascist state.

History will, however, remember who stood up for humanity in this dark hour and who instead sided with and enabled the forces of evil, willful ignorance, and darkness overtaking our wounded democracy.

Due Process Forever; Child Abuse & Gratuitous Cruelty, Never.

PWS

02-13-20

MALICIOUS INCOMPETENCE: SESSIONS & BARR ERADICATED DUE PROCESS WHILE DOUBLING THE IMMIGRATION COURT BACKLOG: “[S]uch backlogs result when ‘the government focuses concern on immigrants and puts enforcement ahead of due process and civil rights.'” – Complicit Article III Appellate Courts Are Likely To End Up With The Absolute Disaster They Enabled!

https://apple.news/AbprF_RZWSBmtsn5WT35I_w

By DANAE KING, THE COLUMBUS DISPATCH

Immigration court backlog has nearly doubled under Trump

November 25, 2019 05:00 PM EST

The nation’s backlog of active immigration court cases has surpassed the 1 million mark and has nearly doubled since President Donald Trump took office, a new analysis shows. In Ohio, 12,851 cases are pending in Cleveland’s immigration court, which includes Columbus-area cases. That’s up from 3,295 in 2009.

While most people might look a few weeks into the future when scheduling appointments for work, Amy Bittner has put court dates on her calendar for 2022.

The Columbus-based immigration lawyer already knows she’ll have to make the 280-mile round trip to Cleveland to represent a client at a hearing in three years.

“The backlog is a victim of this administration’s priorities. There did not used to be this backlog,” Bittner said.

Nationwide, the backlog has almost doubled, from 542,411 pending cases when President Donald Trump took office in January 2017 to just over 1 million as of Sept. 30, according to an October report by TRAC, a Syracuse Universityclearinghouse that gathers and analyzes immigration data from government agencies.

In Ohio, 12,851 cases are pending in Cleveland Immigration Court, the state’s only such court. That is up significantly from 3,295 in 2009. It’s also double the 6,184 in 2016.

Hearings are scheduled in the Cleveland court through Dec. 30, 2022.

Trump administration policies have not helped temper the rise in the country’s immigration court backlog, the TRAC report says.

Austin Kocher, a faculty fellow at TRAC and an Ohio State alumnus , said such backlogs result when “the government focuses concern on immigrants and puts enforcement ahead of due process and civil rights.”

“Very little resources actually go to the immigration court system and judges” compared with enforcement efforts, Kocher said.

Although the judges in northeastern Ohio stay busy, the backlog at Cleveland’s immigration court isn’t the worst in the country. In areas such as New York, Chicago and Philadelphia, immigrants are waiting an average of 1,450 days, or just under four years, to see a judge.

Part of the reason for the backlog, TRAC says, is that then-U.S. Attorney General Jeff Sessions in May 2018 ordered the nation’s immigration judges to end their practice of removing cases from their dockets without issuing decisions. That resulted in formerly closed cases being reopened, according to TRAC.

“The decision to reopen previously closed cases has single-handedly exacerbated the immigration court crisis, yet it has not received sufficient attention,” the TRAC report states. “This single policy decision has caused a much greater increase in the court’s backlog than have all currently pending cases from families and individuals arrested along the southwest border seeking asylum.”

Others blamed the delays in part on one of Trump’s earliest executive orders, from January 2017, when he made every immigrant who was in the country illegally a priority for deportation. The norm had been to prioritize those who had committed crimes.

“It is a senseless waste of taxpayer money to attempt to remove people who are not criminals and who are well-integrated into our community,” Bittner, the Columbus immigration lawyer, told The Dispatch in an email.

She said U.S. Immigration and Customs Enforcement should close deportation cases involving long-term U.S. residents who are not dangerous.

The Executive Office for Immigration Review, the Department of Justicebranch that supervises the federal immigration court system, did not respond to requests by The Dispatch for comment.

The backlog has grown despite the Trump administration having given the immigration courts “the greatest amount of resources,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, a union.

The nation has 442 immigration judges, according to TRAC. Although about 220 judges have been hired in the past three years, about 100 others have left, Tabaddor said. She said that many of those who have left have expressed feeling like the Trump administration doesn’t allow them to do their jobs properly while adding quotas and micromanaging their work.

Each judge has about 2,000 cases, according to TRAC.

In 2016, when Cleveland’s immigration court had three judges, Bittner went to the court only twice. Now it has six judges, and she goes more than once a month.

Hiring more judges hasn’t fixed the backlog, Bittner said.

“It is very frustrating because justice delayed is justice denied, and while foreign nationals wait years for the adjudication of their cases, they are putting down roots here and having families, which makes removal from the United States even crueler if their case is ultimately denied,” Bittner wrote in the email.

She said some of her clients are grateful for the wait because they have more time to build a life here. Others, however, are frustrated, Bittner said, because they feel that they are constantly in limbo, and once they’ve built a life, it could all come crashing down when their day in court finally arrives.

A few of her clients who had waited years to make their asylum case in the U.S. court left for Canada instead, hoping things would go more smoothly up north.

“It just seems to be getting worse,” Bittner said.

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

Actually, this article significantly understates the true scope of the backlog. Because, as noted in the article, in Castro-Tum, Sessions unethically, mindlessly, and unlawfully created a situation that, if not halted by the Congress or the Appellate Courts (note the 4^th Circuit Court of Appeals has “just said no” to Session’s bogus ruling), will require that over 300,000 low priority, properly “administratively closed” cases be restored to the docket. They vast majority of these are (absurdly) themselves backlogged, “awaiting re-docketing” (more than a clerical process in the antiquated, non-automated, paper heavy Immigration Courts). That makes the total backlog well over 1.4 million and still growing every day.” “Aimless Docket Reshuffling” at its worst!

And, because of the almost guaranteed legal and quality control problems with the Regime’s “cutting corners to deny due process” approach, many of these will end up in the Circuit Courts of Appeals in a condition that requires “return to sender.”

It doesn’t take a legal scholar or much of a judge to recognize that today’s Immigration “Courts” being run by biased, maliciously incompetent DOJ prosecutors don’t satisfy the basic requirement for “fair and impartial adjudications” to conform to Fifth Amendment Due Process. Moreover, the incompetent, “bad faith” mis-management of the Immigration Courts basically “throws garbage” into the higher courts and precludes effective, timely judicial review.

The solution: recognize that this travesty is unconstitutional and require a court-approved “special master” to run the Immigration Courts in place of the DOJ until Congress fixes the glaring Due Process and court management problems with an independent Article I U.S. Immigration Court as recommended by almost all experts!

We also must remember the DOJ’s & EOIR’s concerted White Nationalist attacks on foreign nationals and their legal and Due Process rights in the Immigration Courts is also a vicious, unprovoked assault on the courageous attorneys representing the most vulnerable among us and trying, against the odds, to make the system function for everyone’s good. By failing to aid and support “officers of the court” in this dire situation, the Federal Judiciary basically undermines our entire justice system and brings it into disrepute!

Constantly Confront Complicit Courts 4 Change!

Due Process Forever; Complicit Courts Never!

PWS

11-26-19

MEET THE PRESS: NAIJ President Hon. A. Ashley Tabaddor & Others Appear @ National Press Club To Explain Need For Independent Article I U.S. Immigration Court In Light Of Trump Administration’s All-Out Assault On Due Process!

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Dear NAIJ Members,

On Friday, September 27, 2019, the National Press Club (NPC) convened a Headliners “Newsmaker” Press Conference entitled “Immigration Courts in Crisis.” Moderated by NPC President and award-winning AP Washington Investigations Editor journalist Alison Fitzgerald Kodjak, the panel presentation explored sweeping and controversial changes in the nation’s Immigration Courts. The presentations were led by NAIJ President Ashley Tabaddor, followed by the ABA President Judy Perry Martinez, and the American Immigration Lawyers Association (AILA) Second Vice President Jeremy McKinney. The trio expressed broad consensus around key concerns undermining the independent decision making authority of Immigration Judges and compromising the integrity of the court.

Judge Tabaddor honed in on the specifics of how the decisional independence of judges and the independence of the court is under attack by the Department of Justice through their actions ranging from the imposition of unrealistic and unreasonable quotas and deadlines to the recent announced DOJ regulation, effective immediately, which collapsed into a single individual the role of the chief policy director with the role of the chief appellate judge. The EOIR Director was previously prohibited from engaging in any judicial role over cases because of the political nature of the position, but has now been given authority to interfere in individual cases, direct the result of cases, and to sit as an appellate judge over immigration judge decisions. Judge Tabaddor also reported on Friday’s filing of two unfair labor practice petitions against the Department of Justice with the Federal Labor Relations Authority. The ULPs stem from the Agency’s efforts to decertify the Association under the guise of reclassifying the Immigration Judges as managers and policy-makers and its subsequent personal attacks on the Association leadership from the podium of the Department of Justice.

ABA President Perry Martinez (Judy) was a powerful voice on a number of important issues ranging from support for fair proceedings and the rule of law to the importance of effective representation for individuals in removal proceedings.

Finally, AILA Vice President McKinney (Jeremy) reported on the impact of the “tent” courts that have been shrouded in secrecy with wholly inadequate operational logistics related to attorney access. He said, “DHS not only has complete control over access to these facilities, but DHS also has complete control over attorney/client representation when migrants are on the U.S. side of the border.” He explained that the program creates insurmountable hurdles to attorney representation, and as a result, as of the end of June, only 1.2% of asylum seekers had been able to obtain counsel.

The three speakers were aligned in the NAIJ’s call for a lasting solution to these and other problems plaguing the Immigration Court system — legislative action to restructure the courts in a manner offering independence from the Department of Justice, and the creation of an independent Article I Immigration Court.

Several national and local news outlets, including the Wall Street Journal, the New York Times, CNN, and others, were present and have reported on the event. To watch the press conference, see:

https://spaces.hightail.com/receive/RRowcRdtrK

For a sampling of the articles, please check out the NAIJ website at:

https://www.naij-usa.org/news

If you have any questions or comments, or if you would like to have copies of the ULPs or Judge Tabaddor’s remarks, please feel free to reach out to Judge Tabaddor directly atashleytabaddor@gmail.com.

Sincerely,

Your NAIJ Executive Board

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

Keep up the fight!

Every day, the Trump Administration is further reducing the Immigration Courts to “Kangaroo Courts” while Congress and the Article IIIs shirk their respective duties to protect Due Process!

PWS

10-03-19

MICHELLE HACKMAN @ WSJ: Immigration Judges’ Union Fights Back Against DOJ’s Heavy-Handed Attempt To Quash It! – Like The “Whistleblower,” The NAIJ Has Been Outspoken In Exposing Bias, Denial Of Due Process, & Improper Politization Of U.S. Immigration Courts By Corrupt DOJ!

https://apple.news/APq7A4ihtTZ280UVWJnfkNg

From the WSJ:

By Michelle Hackman

September 27, 2019, 10:00 a.m. EDT

WASHINGTON—The union representing the nation’s more than 400 immigration judges filed a labor complaint against the Justice Department, escalating an already tense situation between the Trump administration and the judges carrying out its immigration policy.

The judges—who unlike most other jurists work for the Justice Department—based their complaint on two recent incidents.

The most recent occurred in late August, when the Executive Office of immigration Review, which oversees the judges, included a link to a blog post on a white nationalist website in its daily news briefing emailed to all employees. The blog post in question described immigration judges using several racial and ethnic slurs, angering judges around the country and prompting a formal letter to the office’s director.

The other incident came in April, when the union sought clarification from the Justice Department on whether the judges’ positions made them regular employees or managers in the course of contract negotiations. The Justice Department didn’t respond to the query but later filed a petition with the Federal Labor Relations Authority to decertify the union, on the basis it considered the judges managers.

The union’s complaint was filed with the Federal Labor Relations Authority, and could slow the Justice Department’s attempts to disband the union.

The judges’ union, known formally at the National Association of Immigration Judges, allows its leadership to fill a unique role as government employees empowered to criticize their employer and, by extension, the administration’s immigration policies.

The union has been outspoken about the government’s efforts to exert increasing political control over the nation’s immigration court system, narrowing the judges’ discretion around who can qualify for asylum.

Attorney General William Barr, for example, overruled the Board of Immigration Appeals in deciding people with family ties to gang targets or others with domestic violence claims couldn’t qualify for asylum. More recently, the administration has been temporarily allowed to enforce a rule disqualifying anyone for asylum if they traveled through a third country en route to the U.S. The rule faces further court challenges.

In its effort to move more quickly through a backlog of pending cases that has grown to more than one million, the Justice Department has also placed new quota requirements on the judges. It has pressed individual judges to move through cases faster, giving judges a one-year deadline to decide each case and setting a 700-case annual quota. Only about a third of judges are on track to meet that goal, according to A. Ashley Tabaddor, the union’s president.

The administration has also begun shifting cases to judges known to work quickly, sometimes handing cases to courts located far from where an immigrant is living. More recently, it has also begun diverting some judges from their normal duties to hear cases of the government’s “remain in Mexico” program, under which migrants who have claimed asylum must wait in Mexican cities while their cases make their way through the courts.

The government has set up makeshift tent courts at ports of entry to process these cases more quickly, and judges have been hearing cases using a videoconferencing tool. These courts, unlike most others in the country, aren’t open to the public or to journalists.

The union rebuked the tent courts’ closed conditions as “another glaring reason why the immigration courts have been deprived of key characteristics of what it means to be a court in the United States.”

The union has also argued that immigration courts should be given judicial independence, rather than answering to the Justice Department’s political leadership.

Write to Michelle Hackman at Michelle.Hackman@wsj.com

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

Thanks, Michelle, for bringing into the national spotlight this important story about the DOJ’s improper influence over the U.S. Immigration Courts and their outrageous attempts to suppress and punish truth and dissent.

We need an independent Article I U.S. Immigration court enacted by Congress. Until that happens, vulnerable individuals will continue to have their most important rights denied by this unconstitutional parody of a fair and impartial court system. In the meantime, the Article III Courts continue to ignore the glaring constitutional defects that must be addressed before approving any more defective “removal orders” and denials of asylum and other relief emanating from these fatally defective “captive courts” that have been “redesigned” to function as part of the DHS enforcement apparatus.

PWS

09-27-19

WHERE “JUSTICE” IS A CRUEL FARCE: As Career Officials Continue To Flee Or Be Thrown Off The Ship, Restrictionists Tighten Political Control Over Immigration “Courts” — Institutions Created To Insure Due Process Now Being Weaponized To Eradicate It, As Congress & Article IIIs Shirk Their Constitutional Duties!

Katie Benner
Justice Correspondent
NY Times

https://www.nytimes.com/2019/09/13/us/politics/immigration-courts-judge.html

Katie Benner writes in The NY Times:

By Katie Benner

Sept. 13, 2019

WASHINGTON — The nation’s immigration judges lost a key leader this week, the latest in a string of departures at the top of the system amid a backlog of cases and a migrant crisis at the southwestern border.

The official, David Neal, said that he would retire from his position as head of the judges’ appeals board effective Saturday. “With a heavy heart, I have decided to retire from government service,” Mr. Neal wrote in a letter sent to the board Thursday and obtained by The New York Times.

He gave no reason for his abrupt departure and asked his colleagues to “keep true to your commitment to fairness and justice.”

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No replacement has been announced, and a Justice Department spokesman declined to comment, citing a policy to not do so on personnel matters.

Mr. Neal’s decision follows a shake-up at the Executive Office for Immigration Review, the court system that adjudicates the country’s immigration cases, including asylum cases. It is part of the Justice Department, not the judicial branch.

Three of its senior career officials — MaryBeth T. Keller, the chief immigration judge; Jean King, the general counsel; and Katherine H. Reilly, the deputy director — all left their roles this summer. Ms. King stayed at the immigration office in a different post.

Mr. Neal’s departure also comes amid the backdrop of the Trump administration’s efforts to curb both illegal and legal immigration, which have taxed the immigration courts, the criminal courts and border patrols along the nation’s southwestern border and prompted long-running discontent among immigration judges that they are being used to expedite deportations.

As Mr. Trump has sought to suppress immigration and cut down on the number of people who claim asylum in the United States, he has notched two wins at the Supreme Court.

On Wednesday, justices said in an unsigned order that amid an ongoing legal battle, the administration could bar most Central American migrants from seeking asylum in the United States if they passed through another country and were not denied asylum there. That decision will allow the administration to effectively bar migration across the southwestern border by Hondurans, Salvadorans, Guatemalans and others who must travel through other countries to get to the United States.

And in July, the Supreme Court said that the Trump administration could use $2.5 billion in Pentagon money to build a barrier along the border with Mexico, which would help Mr. Trump fulfill a campaign promise to build a wall on the border to stop immigration.

Amid these hard-line policies, a vocal group of immigration judges — part of the larger total of about 400 judges and appeals judges — have been at loggerheads with the Trump administration for more than a year.

Leaders of the judges’ union have pushed back against the imposition of quotas that they have said would expedite deportations at the expense of due process. Under former Attorney General Jeff Sessions, they accused the Justice Department of trying to turn the immigration courts into a deportation machine.

Mr. Sessions treated the judges “like immigration officers, not judges,” said Paul Schmidt, a former judge in the immigration courts.

Some judges have also bristled at a recent Justice Department decision that handed over the power to rule on appeals cases to the director of the office, a political appointee. The judges saw the move as an attempt to undermine their authority.

That decision also directly impacted Mr. Neal, demoting him “in practice,” by transferring his authority to decide appeals cases to the director of the office, said Ashley Tabbador, the president of the union that represents immigration judges.

“This regulation upends the entire system created to decide these cases,” Ms. Tabbador said. Should the new system run into problems, “the chairman would have been held accountable. I would have quit, too, if I were in David’s position.”

Though they are part of the Justice Department, many immigration judges view themselves as independent arbiters of the law and believe they must act within the confines of existing immigration statutes.

They have long deliberated over whether they should be part of the Justice Department — a debate that has intensified under President Trump.

Last month, tensions increased when a daily briefing that is distributed to federal immigration judges contained a link to a blog post that included an anti-Semitic reference and came from a website that regularly publishes white nationalists.

After the episode, the immigration review office said that it would stop sending the daily briefing and would not renew its contract with the service that provided it.

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

The farce taking place as the Trump DOJ politicos “remake” the Immigration Courts into a tool of DHS enforcement and repression of Due Process and fundamental fairness will go down as one of the darkest and most disturbing episodes in American legal history.

The inability or unwillingness of the other two branches of Government, Congress and the Article III Judiciary, to intervene and fulfill their Constitutional duties of protecting Due Process, fundamental fairness, equal protection, First Amendment rights of union members, and separation of powers show a catastrophic failure of American institutions that are charged with protecting and advancing all of our rights.

In the end, nobody including Trump’s tone-deaf supporters and enablers, will escape the adverse consequences of giving in to White Nationalist authoritarianism.

PWS

09-15-19

TAL @ SF CHRON TAKES US INSIDE EOIR’S LATEST ASSAULT ON DUE PROCESS: Lack Of Live Interpretation Causing Confusion, Delays, Misinformation, & Denials Of Fundamental Fairness In U.S. Immigration Courts — Bogus “Court” System Continues To Make Major Changes Diminishing Due Process Without Consulting Judges, Attorneys, Or The Affected Individuals!

Tal Kopan reports for the SF Chron:

https://www.sfchronicle.com/politics/article/Confusion-delays-as-videos-replace-interpreters-14414627.php

Confusion, delays as videos replace interpreters at immigrants’ hearings

By Tal Kopan

WASHINGTON — The Trump administration has been slow to implement its new policy replacing in-person interpreters with informational videos at immigrants’ initial hearings, but the switch is causing delays and confusion where it has been introduced, including in San Francisco, observers say.

The Justice Department informed immigration judges in late June that it would replace in-person interpreters at the first court appearance for immigrants facing deportation with videos advising them of their rights. The switchover began in July.

So far, the policy has been rolled out to courts in just four cities: San Francisco, Los Angeles, Miami and New York.

It’s not clear when the policy will expand. A spokesman for the Justice Department division that oversees the courts said the agency “is taking into consideration all feedback before additional translation videos are created and the program is rolled out to further immigration courts.”

Judges and attorneys observing the courts say the change has mostly served to delay proceedings, by adding lengthy steps and information that is not necessary for all migrants to hear.

After the videos are shown, each immigrant is called up for his or her individual hearing and may have questions for the judge. Although judges are now barred from scheduling in-person interpreters for the hearings, at times interpreters can be found on short notice in the courthouses. When none is available, judges must try a telephone service to reach an interpreter.

At issue are what are called master calendar hearings — immigrants’ first appearance in courts that determine whether they can remain in the U.S. The typically rapid-fire sessions serve to inform migrants of their rights and the process they will go through. Judges also schedule their next hearings.

Many immigrants in the system are Spanish speakers, but it’s also common for Chinese, Creole, and several indigenous languages from Central America and around the world to be spoken in courtrooms.

Judges in courts that have made the change are required to play either a Spanish-dubbed or English-language video for immigrants who do not have attorneys representing them. The 20-minute video runs through a lengthy list of technical legal advisories. Videos in other languages are not yet available, but the Justice Department has plans to introduce them.

Most of the dozens of immigrants going through their initial hearings Tuesday in San Francisco were shown the video. Many of them had attorneys present who translated, and others were able to use a Spanish-speaking interpreter who was on hand. Languages spoken in court included Spanish, Punjabi, Hindi, Mandarin and Fijian.

One hearing in the courtroom of Judge Arwen Swink involved a Mongolian woman who needed translation. After about five minutes, Swink was able to secure an interpreter in her language through the telephone service Lionbridge.

Swink asked the interpreter to introduce himself to the woman, who did not have an attorney, to ensure that she understood him. The interpreter said he had trouble hearing, but court staffers brought the microphone closer to the woman and the session was able to proceed.

With an interpreter in the room, such a hearing can take five minutes or less. The woman’s case took 15 minutes.

The Chronicle has obtained transcripts of the separate videos that are played for immigrants who are in detention and not in detention, as well as an FAQ handout they receive.

Roughly a fifth of the videos are devoted to a discussion of “voluntary departure,” under which immigrants can go back to their home country without being penalized if they try to come back someday. The videos also warn immigrants of the criminal consequences of trying to re-enter the country illegally after being deported.

Legal experts and veteran immigration judges say neither topic was commonly brought up in initial hearings before the videos were introduced because they are most relevant at the end of cases, if migrants do not prevail in their bid to remain in the U.S. Several said they feared the emphasis on voluntary departures and criminal penalties could prompt immigrants with valid claims to stay in the U.S. to waive their right without fully understanding what they’re doing.

The Justice Department did not consult with the union that represents immigration judges before making the change, and has proceeded despite ongoing bargaining with the group. The result is “lots of confusion, constantly changing parameters of the program by the agency and frustration among many judges,” said Ashley Tabaddor, president of the National Association of Immigration Judges and an immigration judge in Los Angeles.

Tabaddor added that courts in New York and Miami have had trouble securing help by phone, and that cases have been delayed in the Los Angeles court because of shortages of interpreters.

Amiena Khan, the union’s executive vice president and a judge in New York, said the videos make for a “really long day” for unrepresented immigrants who have to wait through proceedings for all migrants who have attorneys before watching a 20-minute video. She finds herself repeating or adding key advisories when immigrants are called before her.

“There was no problem that needed to be solved by the introduction of the video,” Khan said. “What I think really bothers me is that it’s mandatory. I think if it was discretionary as a tool for the judge to use, it could be helpful. (But) it takes away our judicial independence as to what method to employ to best get through the day’s docket.”

Khan and former immigration Judge Jeffrey Chase, who reviewed the transcripts, also noted that the videos do not include information that would be important for immigrants, including that they have only one year to formally apply for asylum in the U.S.

“The information provided is misleading in a way that can lead to a noncitizen’s removal,” said Chase, who now volunteers for organizations that provide legal assistance to immigrants.

Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, said the transcripts show that the videos use “scare tactics” instead of informing immigrants of their rights. The videos warn immigrants against filing frivolous asylum claims, but don’t explain what asylum is, she noted.

“The videos provide an overwhelming amount of information that no one can easily digest in one setting,” Lynch said. “What’s more disturbing is that the content itself only tells one side of the story.”

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

Click on the link for Tal’s full story with links to actual transcripts of this “parody of justice.”

This is DOJ/EOIR’s “malicious incompetence” in action. Accurate interpretation is essential to Due Process and fundamental fairness as well as the hallmark of a competently and professionally run court system. Somewhere along the line, the money for interpreters was frittered away by what passes for “management” at DOJ/EOIR. And, let’s not even think about the waste of money on absurd “Immigration Judge Dashboards” while the two decades old overwhelming need for a functional nationwide e-filing system goes unmet.

Right now, Congress is paralyzed. When are the Article III Courts going to wake up, get some backbone, and enforce the U.S. Constitution by putting an end to this so-called “court system” run by prosecutors that provides not even a semblance of fair and impartial (and at least minimally competent) adjudication? No more “Clown Court!”🤡

PWS

09-05-19

IMMIGRATION COURTS: After Two Years Of Trump Administration Anti-Immigrant Shenanigans At EOIR, The Backlog Has Mushroomed To 975,298, Morale Has Hit Rock Bottom, & Due Process Is Mocked Every Day — There Is A Solution, But Will Our Republic Survive Enough To Reach It?

https://www.themarshallproject.org/2019/08/28/is-it-time-to-remove-immigration-courts-from-presidential-control

Julia Preston reports for The Marshall Project:

By JULIA PRESTON

A string of directives from President Donald Trump’s Justice Department that have reduced the authority of immigration judges and limited their control of their courtrooms has given new urgency to calls for a complete overhaul of the immigration courts.

Those courts now exist within the Justice Department and answer to the attorney general. Proposals for Congress to exercise its constitutional powers and create separate, independent immigration courts have long been dismissed as costly pipe dreams. But under Trump, judges and others in the court system say they are facing an unprecedented effort to restrain due process and politicize the courts with the president’s hard line on immigrants and demands for deportations.

“It’s time for the Department of Justice and the immigration courts to get a divorce,” said Jeremy McKinney, an attorney who is a vice-president of the American Immigration Lawyers Association.

In a letter in July, the immigration lawyers joined the American Bar Association, the Federal Bar Association and the immigration judges’ union to call on Congress to “establish an independent court system that can guarantee a fair day in court.” The idea is percolating in the Democratic presidential contests, with three candidates—Julián Castro, Beto O’Rourke and Sen. Elizabeth Warren—presenting specific plans. Another candidate, Sen. Kirsten Gillibrand, drafted a bill last year to make the change.

The chairman of the House Judiciary Committee, Rep. Jerrold Nadler, a Democrat from New York, said he will hold hearings on the proposals this fall. There is little chance such a plan would have traction in the Republican-controlled Senate.

Under the proposals, the immigration courts would become a stand-alone agency that would not be run or controlled by outside officials, with the goal of insulating judges from political pressure by any administration.

Department of Justice officials say they are working on a fast track to modernize courts that have been relegated to institutional backwaters. They oppose any plan to separate the courts, saying it would create a bureaucratic and legal morass that would do little to resolve massive backlogs and other chronic problems.

The costs and logistical hurdles “would be monumental and would likely delay pending cases even further,” said Kathryn Mattingly, a Justice Department spokeswoman. The proposals present “significant shortcomings, without any countervailing positive equities,” she said.

But several judges, including three who spoke anonymously because they are not authorized to make public statements, said the Trump administration has pushed the courts too far. The latest salvo emerged from a thicket of legal language in a rule issued Monday by the Justice Department. In a major change, it gives the official in charge of running the courts, who is not a sitting judge, the last word in appeals of some immigration cases. It also gave that official—the director of the Executive Office for Immigration Review, the formal name of the immigration court agency—expanded power to set broadly-defined “policy” for the courts.

The judges’ union reacted with alarm. Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said the rule “removes any semblance of an independent, non-political court system.”

The judges’ association was already reeling after receiving what amounted to a declaration of war on Aug. 9, when the Justice Department filed a decertification petition that would bar judges, who are department employees, from being represented by the union.

Former Attorney General Jeff Sessions used his authority extensively, eliminating judges’ ability to close deportation cases and narrowing the path to asylum for migrant families from Central America fleeing domestic abuse, gang violence and cutthroat cartels. In a recent decision, Attorney General William Barr went further to deny families asylum, overruling long-standing opinions by judges.

Late last year the current director of the courts, James McHenry, under pressure from the White House, ordered judges in 10 busy courts to give priority to cases of families seeking asylum, pushing those cases to the front of their dockets while postponing others. Many judges are frustrated with the “rocket dockets,” finding that they deny many immigrants time to prepare for hearings while unreasonably delaying other cases, further stretching out backlogs.

In recent months McHenry, citing budget constraints, began to limit the availability of language interpreters for initial hearings, where judges see immigrants who speak many different languages. Translators have been replaced with videos providing boilerplate explanations of an immigrant’s rights. Judges said the videos are befuddling to immigrants in their first encounter with the court, and take away time for judges to address each person individually.

What really antagonized many judges was the imposition of quotas for finishing cases, tied to their performance reviews. Since last October, judges must complete at least 700 cases a year, with less than 15 percent of decisions being sent back to them by appeals courts. Time limits were set for many other decisions.

To remind judges of their standing, Justice officials designed a speedometer that sits on judges’ computer screens, with green marking numbers of decisions that meet the metrics and stoplight red indicating where they are lagging.

“So you sit down and you see that dashboard staring at you, updated every day, and you have 50 motions on your desk to decide whether to continue a case,” said Denise Noonan Slavin, who retired as an immigration judge in March after 24 years on the bench. The metrics, she said, inevitably discourage judges from granting more time for cases, even if an immigrant presents a valid argument.

“If judges get into that red, they can lose their job,” Slavin said.

Last October the Justice Department initiated performance metrics for immigration judges (referred to as IJs), setting benchmarks that they must complete at least 700 cases a year and finish other decisions within certain time limits. Speedometers sit on judges’ computer screens, with green showing they are on track with their cases and red signaling they are far behind. U.S. DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Most proposals to reconfigure the courts would have Congress act under Article One of the Constitution. The courts would become a separate agency governed by judges, but would remain within the executive branch. There is no appetite for the vast costs and litigation it would take to move the courts to the federal judiciary.

Reformers cite the example of the tax court, which Congress set up in 1969 to have independent judges deciding federal tax disputes, taking them out of the grip of the Internal Revenue Service. Similarly, Judy Perry Martinez, president of the American Bar Association, said in an interview that the immigration courts cannot be fully impartial while they are subordinate to the attorney general, the nation’s top prosecutor.

The Federal Bar Association, which has written a model bill for the transformation, insists it would not be as daunting as it sounds. The bill is drafted “with the idea of simply lifting the courts,” and their budget, out of the Justice Department, said Elizabeth Stevens, chair of the organization’s immigration law section. Under this plan, the courts would remain in existing facilities and current judges would continue to serve for four years before being re-appointed by Senate-confirmed appeals judges to serve in the new system.

Proponents have a harder time explaining how the transition would avoid even more of a bureaucratic sinkhole than existing courts, where the backlog stands at more than 930,000 cases. But Slavin said independent judges would take back their ability to manage cases efficiently, which she said micromanagement under Trump had eroded.

Advocates have few illusions that Trump and a Congress locked in immigration feuds will address their complaints soon. But they want to get the issue on the election year agenda, contending that Democrats and some judicial conservatives among Republicans could vote for an eventual bill.

The Justice Department can be expected to resist. But McKinney, from the lawyers association, said that with the sense of siege in the courts, “Suddenly something that was a dream or a theory is becoming something that could become a reality.”

Julia Preston covered immigration for The New York Times for 10 years, until 2016. She was a member of The Times staff that won the 1998 Pulitzer Prize for reporting on international affairs, for its series that profiled the corrosive effects of drug corruption in Mexico. She is a 1997 recipient of the Maria Moors Cabot Prize for distinguished coverage of Latin America and a 1994 winner of the Robert F. Kennedy Award for Humanitarian Journalism.

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

Lost in the shuffle: With all the money poured down the drain on mindless schemes to DENY DUE PROCESS rather than enhance it, after 19 years of “study and development,” EOIR IS STILL WITHOUT A FUNCTIONAL E-FILING SYSTEM!

Plenty of money for absurd “Judicial Dashboards;” none for even minimally competent court administration. And, how about the reduction in essential interpreter services mentioned in Julia’s article? Talk about “malicious incompetence” in action!

Also, the 975,298 “docketed” cases in the backlog (according to TRAC, as of 07-31-19) DOES NOT include most of the approximately 330,000 “Administratively Closed” cases that Sessions and Barr have idiotically tried to “force” back on the already-backlogged dockets. This week, the Fourth Circuit “called out” this illegal nonsense by emphatically rejecting Sessions’s scofflaw ruling in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018). This development was reported in “Courtside” yesterday. https://immigrationcourtside.com/2019/08/29/gonzo-apocalyopto-slammed-unanimous-panel-of-4th-cir-rejects-matter-of-casto-tum-exposes-irrationality-of-biased-unqualified-restrictionist-former-ag/.

Unfortunately, however, the Fourth Circuit’s ruling in Zuniga Romero v. Barr currently only applies in the Baltimore, Arlington, and Charlotte Immigration Courts. This leaves the rest of the country in the type of mass confusion and uncertainty that the Trump Administration strives to create.

It’s past time for the Article III Courts to do their duty, put this patently unconstitutional mess out of its misery, and appoint a “Special Master” to restore at least some semblance of Due Process, fundamental fairness, impartiality, quasi-judicial independence, and competent court management to this system pending Congressional reforms to comply with the Constitution.

Most important: judicial intervention might save some human lives that will otherwise be lost as a result of the “malicious incompetence” with which the Trump Administration regularly has abused the “captive” U.S. Immigration Courts.

PWS

08-30-19

HATE ON THE DOCKET: As Administration’s Attacks On Judicial Independence Mount, DOJ/EOIR Pelt Immigration Judges With White Nationalist Hate Group’s Racist, Anti-Semitic Propaganda! — Slurs Target Union Officials Leading The Resistance To DOJ’s Union-Busting Effort!

https://apple.news/AAsWdQ8tyR365PO0Me_6IZg

Hamed Aleaziz reports for BuzzFeed News:

The Justice Department Sent Immigration Judges A White Nationalist Blog Post With Anti-Semitic Attacks

BuzzFeed News Reporter

Attorney General William Barr

An email sent from the Justice Department to all immigration court employees this week included a link to an article posted on a white nationalist website that “ directly attacks sitting immigration judges with racial and ethnically tinged slurs,” according to a letter sent by an immigration judges union and obtained by BuzzFeed News.

According to the National Association of Immigration Judges, the Justice Department’s Executive Office for Immigration Review (EOIR) sent court employees a link to a blog post from VDare, a white nationalist website, in its morning news briefing earlier this week that included anti-Semitic attacks on judges.

The briefings are sent to court employees every weekday and include links to various immigration news items. BuzzFeed News confirmed the link to a blog post was sent to immigration court employees Monday. The post detailed a recent move by the Justice Department to decertify the immigration judges union.

A letter Thursday from union chief Ashley Tabaddor to James McHenry, the director of the Justice Department’s EOIR, said the link to the VDare post angered many judges.

“The post features links and content that directly attacks sitting immigration judges with racial and ethnically tinged slurs and the label ‘Kritarch.’ The reference to Kritarch in a negative tone is deeply offensive and Anti-Semitic,” wrote Tabaddor. The VDare post includes pictures of judges with the term “kritarch” preceding their names.

Tabaddor said the term kritarchy is a reference to ancient Israel during a time of rule by a system of judges.

“VDare’s use of the term in a pejorative manner casts Jewish history in a negative light as an Anti-Semitic trope of Jews seeking power and control,” she wrote.

Tabaddor called on McHenry to take immediate action over the distribution of white nationalist content.

“Publication and dissemination of a white supremacist, anti-semitic website throughout the EOIR is antithetical to the goals and ideals of the Department of Justice,” she wrote. The court, Tabaddor wrote, should immediately withdraw the email and issue an apology to all immigration judges, including those mentioned in the post.

“Separately, EOIR should take all appropriate safety and security measures for all judges given the tone and tenor of this posting,” she wrote.

After publication of this article, a DOJ spokesperson told BuzzFeed News the email briefing was compiled by a contractor and should not have included a link to the VDare post.

“The daily EOIR morning news briefings are compiled by a contractor and the blog post should not have been included,” the spokesperson said.

EOIR Assistant Press Secretary Kathryn Mattingly told BuzzFeed News that “the daily EOIR morning news briefings are compiled by a contractor and the blog post should not have been included. The Department of Justice condemns Anti-Semitism in the strongest terms.”

A former senior DOJ official said that the email in question was “generated by a third-party vendor that utilizes keyword searches to produce news clippings for staff. It is not reviewed or approved by staff before it is transmitted.”

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

So, it’s “mere coincidence” that the two Judges leading the NAIJ’s resistance are specifically targeted with slurs within a few days of the DOJ’s filing of a petition to “decertify” the NAIJ? Not credible!

Coincidence that a White Nationalist racist Administration biased against asylum seekers distributes White Nationalist hate propaganda directed at Immigration Judges who stand up for Due Process? Unlikely!

No, starting with Trump & Sessions, this Administration has had a long-term love affair with White Supremacist hate groups. It’s no coincidence that acts of violence by White Nationalist domestic terrorists have increased under Trump. While the DOJ and DHS are busy reviving up baseless fear and loathing of foreigners, the real threats to our national security by White Nationalist domestic terrorists, and frankly by the Trump Administration itself, are left unaddressed and not so subtly encouraged.

There are lots of scummy characters involved in the latest assault on Due Process, fundamental fairness, and simple human decency by Trump’s DOJ.

But there is another major enabler at fault here: the unconstitutional and unethical placement of “judges” within a law enforcement agency has been painfully obvious for years. Yet, life tenured Federal Judges have looked the other way as clearly substandard adjudications have emanated from the Immigration Courts under the last three Administrations. Kind of a “who cares” attitude where rights of foreign nationals are involved.

Now, however, as in the Bush II Administration, U.S. citizen judges are being targeted for harassment and career derailment because of their views.

Trump and his henchmen have already made it clear that they will target anyone who fails to roll over for their White Nationalist agenda, judge or not. Myopic Federal Judges who fail to hold the Administration accountable for abuses and to put an end to the “EOIR travesty” might well find themselves on the receiving end of the Administration’s racist hate campaign at some point. Who will stand up for the rights of those unwilling to stand up for others?

PWS

08-22-19

PWS

THE “GOOD GUYS” STRIKE BACK: NAIJ, AILA Issue Statements Strongly Condemning Administration’s Attempt to “Decertify” Immigration Judges’ Union!

NAIJ Press Release on Attempt to Decertofu 8-12-19

For immediate release – August 12, 2019

Contact: Jamie Horwitz,jhdcpr@starpower.net, 202/549-4921

Trump Administration Seeks to Silence Federal Immigration Judges’ Union DOJ Files Legal Documents to End the Labor Rights of Judges

Retribution for Speaking Out and Exposing Problems in the Courts

Judges Make Bipartisan Appeal Asking Congress to Create an Independent Court Free From Political Influence

WASHINGTON — On Friday, August 9, the U.S. Department of Justice filed legal documents with the Federal Labor Relations Authority (FLRA) seeking to eliminate the rights of federal Immigration Judges (IJs) to be represented by a union. The petition filed by the administration asserts that IJs are “management officials” who formulate and advance policy.

“This is nothing more than a desperate attempt by the DOJ to evade transparency and accountability, and undermine the decisional independence of the nation’s 440 Immigration Judges,” said Judge Ashley Tabaddor, an Immigration Judge who hears cases in Los Angeles, speaking in her capacity as the president of the National Association of Immigration Judges (NAIJ). “We are trial court judges who make decisions on the basis of case specific facts and the nation’s immigration laws. We do not set policies, and we don’t manage staff,” she added.

The nation’s immigration courts are not part of the judicial branch of the government. The courts where immigration cases are heard are managed by the DOJ, allowing the

nation’s chief prosecutor, the U.S. Attorney General, oversight authority and the power to hire, fire, and control the judges who preside over immigration hearings.

Over the past two years, NAIJ has been highly critical of the administration’s moves to create a quota of 700 cases per year for every IJ and to pressure judges to process cases faster, irrespective of the law and the facts of the case. The NAIJ has also documented and publicly commented on how the government shutdown earlier this year added to the case backlog. Other issues raised by the NAIJ during the Trump years have included challenges to the Attorney General’s stripping IJs of needed docket management authority and depriving IJs of adequate support staff and resources such as interpreters, courtrooms, law clerks, and access to current technology. The move to decertify NAIJ is a clear effort to thwart criticism.

“It’s absurd that anyone would consider us managers,” said Tabaddor. “We don’t even have the authority to order pencils.”

This is not the first time that the DOJ has floated the theory that Immigration Judges are managers. Two decades ago, the DOJ made a similar attempt at decertifying the judges’ union. In 2000, the FLRA ruled at that time that IJs do not act as managers. Since that decision, the role and responsibilities of IJs has further been reinforced as trial judges rather than as managers. In the last two years, for example, the DOJ has eliminated any opportunity for IJs to serve in an advisory capacity to management officials and has repeatedly refused even to consult NAIJ on decisions affecting daily court operations. Additionally, the docket schedule of each IJ is micromanaged to advance law enforcement priorities rather than priorities or scheduling set by an individual judge.

NAIJ is affiliated with the International Federation of Professional and Technical Engineers, a much larger union that represents thousands of highly-educated federal employees including NASA rocket scientists, engineers employed by the U.S. Navy and the Army Corp of Engineers, and administrative law judges who hear cases involving Social Security claims. According to IFPTE’s president Paul Shearon, “This is nothing

more than union busting plain and simple, and part of a disturbing pattern. The White House has

signed a series of executive orders that limit the ability of federal unions to raise questions about abuses and inefficiencies, and they have tried to hinder a union’s ability to fully represent federal workers who are often stuck in a bureaucratic maze.” Added Shearon, “This administration doesn’t want to be held accountable, and they especially don’t want anyone looking over their shoulder on immigration issues.”

“It’s in the best interests of the American people for judges to hear cases based solely on the law and the facts presented, free from political considerations,” said Judge Tabaddor. “This is not a Democrat or Republican or a left, right issue.” NAIJ has long advocated for Immigration Judges to be placed in an independent agency, similar to the nation’s bankruptcy and tax courts, rather than under the control of the DOJ. In recent months, this move to create an independent agency to operate the immigration courts has been gaining traction on both sides of the aisle in Congress.

“We think many on Capitol Hill, from both parties, will oppose this effort to mute the nation’s Immigration Judges,” said Tabaddor. “When Congress returns in September, we will redouble our efforts to maintain judicial independence and due process through the creation of an independent court. The DOJ’s actions, designed to silence judges and their union, further demonstrates why judges who hear immigration cases need to be placed in an independent agency. Our rallying cry as we make the rounds in the halls of Congress will be ‘remember August 9’.”

The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.

# # #

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

AILA – AILA: DOJ Seeks Termination of Immigration Judges Union, Further Undermining Court Independen

AILA: DOJ Seeks Termination of Immigration Judges Union, Further Undermining Court Independence

AILA Doc. No. 19081591 | Dated August 15, 2019

CONTACTS:

George Tzamaras
202-507-7649
gtzamaras@aila.org Tessa Wiseman
202-507-7661
twiseman@aila.org

WASHINGTON, DC – On Friday, August 9, 2019, the U.S. Department of Justice (DOJ) petitioned the Federal Labor Relations Authority (FLRA) in an effort to strip immigration judges of their right to be represented by a union. In the petition, DOJ asserts that immigration judges should be considered “management officials” and therefore should be excluded from forming or joining labor unions. The National Association of Immigration Judges (NAIJ), the recognized collective bargaining representative of our nation’s immigration judges, deemed DOJ’s claim as “absurd” and said that DOJ’s actions are “designed to silence judges and their union.” Representatives Jerrold Nadler (D-NY) and Zoe Lofgren (D-CA) of the House Judiciary Committee also decried the move in a statement this week.

Benjamin Johnson, Executive Director of the American Immigration Lawyers Association (AILA) responded, “DOJ’s petition to decertify the NAIJ is an effort to suppress the voices of immigration judges, who have denounced DOJ efforts to strip their authority. Ironically, while the petition contends that immigration judges are ‘management officials,’ this Administration has made every effort to limit the judges’ independence, management, and authority – micromanaging dockets, limiting discretion in adjudication, and imposing strict performance quotas.

Congress must protect the sanctity of due process, efficiency, and fairness in the court system by exercising its oversight authority over these politically motivated actions of the DOJ. Oversight alone is not enough; these actions are only possible because DOJ has total control over the immigration court system. America can no longer afford to have a system that can be so easily manipulated. AILA urges Congress to pass legislation establishing an independent immigration court under Article I of the Constitution.”

Cite as AILA Doc. No. 19081591.

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

An outrageous waste of our taxpayer money, abuse of our legal system, and unlawful attempt to silence the Administration’s critics. Note that the ONLY U.S. Immigration Judges who have a right to “speak out” against the fraud, waste, and abuse of the system by the current Administration (in other words, to “speak truth”) are senior officials of the NAIJ.

The DOJ and EOIR have effectively “muzzled” the rest of the active Immigration Judges. They are not allowed to speak to the press. Under this Administration, they aren’t even allowed to participate in educational programs and seminars aimed at educating the public about practice before the Immigration Courts.

Yet, while treating the judges little better than well-paid but overworked clerks, the Department of Justice asserts, with a straight face, that they are “management officials.” Just what, one might ask, are they “managing?”

Moreover, since judges generally need support but little if any day to day “management” in a functioning system (I wonder how much time Chief Justice Roberts spends “managing” his colleagues or how much time any Chief Judge in a legitimate system spends “managing” his or her judicial colleagues), what’s the purpose of the bloated management structure in the “EOIR Tower” in Falls Church, VA?

The real needs of the Immigration Judges — more clerks, more time off the bench to prepare, more educational opportunities, better equipment, better courtrooms, less time spent on non-productive work like reporting progress on case quotas — remain unaddressed by what passes for “management” at today’s EOIR. The filing of this meritless “decertification petition” by EOIR appears to be yet another in the long series of disingenuous efforts by DOJ and EOIR to deflect attention from their own gross mismanagement of the Immigration Court system that has helped to create monumental, unprecedented backlogs even as more resources are thrown into the maelstrom.

A truly horrible system — essentially a “Rube Goldberg Contraption — that must be abolished by Congress and reinstituted as an independent Article I Court dedicated to delivering “Due Process with efficiency.”

Due Process forever; malicious incompetence never!

PWS

08-19-19

FRAUD, WASTE, & ABUSE @ “JUSTICE” – Barr & Co. Seek To Punish National Association of Immigration Judges (”NAIJ”) For Daring To Stand Up For Due Process & Judicial Independence!

https://www.nytimes.com/2019/08/10/us/immigration-judges-union-justice-department.html?searchResultPosition=1

Christina Goldbaum reports for the NY Times:

By Christina Goldbaum

10, 2019

The Justice Department has moved to decertify the union of immigration judges, a maneuver that could muffle an organization whose members have sometimes been openly critical of the Trump administration’s immigration enforcement agenda.

The department filed a petition on Friday asking the Federal Labor Relations Authority to determine whether the union, the National Association of Immigration Judges, should have its certification revoked because its members are considered “management officials” ineligible to collectively organize, according to a Justice Department spokesman.

The move suggested escalating tensions between overwhelmed immigration judges desperate for greater resources and a Justice Department pushing them to quickly address a backlog of immigration cases.

“This is a misguided effort to minimize our impact,” said Judge Amiena Khan, vice president of the judges’ union, which has publicly criticized the use of a quota system in immigration court and other attempts to speed up proceedings.

“We serve as a check and balance on management prerogatives and that’s why they are doing this to us,” said Judge Khan.

Unlike other federal judges who are part of the judicial branch, immigration judges are appointed by the attorney general and are employees of the Justice Department. Though sitting judges are prohibited from speaking publicly about issues that could be considered political, representatives of the immigration judges’ union can speak publicly about Justice Department policies on behalf of its members.

This is not the first time an administration has challenged the organization. The Clinton administration also tried to decertify the immigration judges’ union, a move that the Federal Labor Relations Authority rejected, according to former immigration judges.

Both Judge Khan and the union president, Judge Ashley Tabaddor, have spoken out repeatedly against what they say is an attempt to turn immigration judges from neutral arbiters of the law to law enforcement agents enacting the White House’s policies. They have called for immigration judges to be independent of the Justice Department.

Last year, the union criticized the department’s quota system, which required immigration judges to complete 700 cases per year, as well as a move to bar judges from an administrative tool they had previously used to reduce their caseloads. The union says the focus on efficiency impedes judges’ ability to work through complicated cases and could affect the due process rights of immigrants in court.

The pressure to hear more cases more quickly amounts to “psychological warfare,” Judge Tabaddor said last year.

Addressing some of the union’s concerns, the Justice Department has tried to tackle the backlog, which now totals more than 830,000 cases, by hiring more immigration judges. Judges appointed by President Trump now make up 43 percent of the nation’s immigration judges, a larger share than under any of his five predecessors, according to a recent analysis by The Associated Press. A large number of his appointees are former military or Immigration and Customs Enforcement lawyers, the analysis found.

But that hiring has not been accompanied by other necessary support, Judge Khan said.

“I can’t work alone, I am reliant on support staff,” said Judge Khan. “Right now there are two judges to one support staff person,” which has delayed the progress of cases despite the additional judges, she said.

The judges’ union plans to officially respond to the Justice Department’s petition once it receives official notification from the Federal Labor Relations Authority.

If the attempt to decertify the union is successful, it could leave judges without recourse for their already overwhelming workload, judges said.

“The union won’t be able to help judges with overall working conditions at a time when most all judges would tell you working conditions are worse now than they have ever been,” said Paul Schmidt, a former immigration judge.

Judge Khan called the Justice Department’s petition part of “a systematic attack on unions” representing federal employees under the Trump administration. Last year, Mr. Trump signed a series of executive orders that rolled back the workplace role of unions for at least two million federal workers and made it easier to fire them. The administration said the move would make the government more efficient.

The Justice Department’s recent petition will most likely prompt an investigation by the Federal Labor Relations Authority, according to a department spokesman.

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

Seems like the investigation ought to be into ethical violations and attempts to misuse Federal labor laws by Bill Barr. A substantially identical challenge to the NAIJ was soundly rejected by the same agency, the FLRA, back in the late 1990’s under the Clinton administration.

Since then, over the strong objection of the NAIJ, the status of Immigration Judges has been even farther reduced to that of glorified “deportation clerks.” The idea that individuals whose little remining discretion has been removed have somehow morphed into “management officials” is both totally absurd and a confirmation that so-called “management officials” in the Federal Government under the Trump Administration have nothing to manage.

Seems like this clear abuse of our legal system by Barr and his cronies should be a subject for investigation by the House Judiciary Committee and would warrant commencement of impeachment proceedings against arrogant, anti-American scofflaw Bill Barr. Not that Barr hasn’t already been found in contempt of Congress and the American people – he has. He’s a disgusting character – a disgrace to public service and the legal profession.

I suppose he will escape accountability in his lifetime. But, the “Jefferson Davis of the Justice Department” will certainly receive the judgement of history against him for his betrayal of his country and his racist, White Nationalist misconduct clothed in a thin veneer of undeserved credibility based on his success in the corporate legal world. If anything, that a sleazy and corrupt character like Barr could prosper in the world of “white shoe corporate law” is an indictment of that system and its total lack of values and ethical standards.

Meanwhile, it appears that the actions of the NAIJ have been successful in striking a nerve among the DOJ kakistocracy. As with the corrupt, inept, and racist-infested DHS, the current inability of the DOJ as an institution to stand up to Barr’s dishonesty, corruption, and lawless behavior certainly merits a reexamination of the role and structure of the DOJ down the line with an eye toward determining how an institution supposedly staffed with “officers of the court” could be so cowardly and inept when it comes to standing up against internal abuses and contempt for our Constitution.

In addition, the latest abuse of authority by Barr emphasizes the need for immediate removal of the Immigration Courts from Barr’s control and a reversal of the “Chevron doctrine” of “judicial task avoidance” that has granted the DOJ’s immigration kakistocracy clearly unwarranted and unjustified “deference.”

Finally, I pass along my favorite quip from one of my former colleagues about the exalted “management role” of today’s Immigration Judges: “I often say I am not even permitted to manage the pencils in my courtroom.”

While there is a certain type of “dark humor” in the actions of Barr and the other “malicious incompetents” in the Trump Administration, there is nothing funny about the innocent lives being lost or threatened by their actions or the damage that these “evil clowns” are inflicting on our Constitution and our instructions.

PWS

08-10-19

JULIA PRESTON & ANDREW R. CALDERON @ POLITICO: DISORDER IN THE COURTS! — How The Trump Administration’s Cruel, Biased, Yet Fundamentally Stupid, Policies Are Creating Endless Backlogs And Destroying A Key Part Of The U.S. Justice System! — “Malicious Incompetence” Generates “Aimless Docket Reshuffling” & Creates An Existential Crisis While The Two Branches That Could Put An End To This Nonsense — Congress & The Article III Courts — Sit By & Twiddle Their Collective Thumbs!

How Trump Broke the Immigration Courts

Julia Preston

Questions are still swirling around the immigration raids that President Donald Trump said he launched over the weekend, but one thing is certain: Many immigrants caught in their net will be sent into a court system already crippled by a vast backlog of ca…

READ ON POLITICO.COM

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This is a national disaster of gargantuan proportions unfolding in plain sight every day. Yet, somehow it remains largely “below the radar screen.” Nobody except those of us (and a few conscientious reporters, like Julia) who truly understand the relationship of the intentionally broken and thoroughly trashed U.S. Immigration Courts to our overall justice system seems motivated to fix this disgraceful mockery of fundamental fairness and impartial decision-making.

This definitely has the real potential to “crash” the entire U.S. justice system. Under Trump, Barr, and the rest of the sycophants, the backlogs will keep growing exponentially until the Immigration Court system collapses, spewing forth one to two million backlogged cases into the laps of those same smug Article IIIs who are closing their eyes to the miscarriages of justice befalling others on their watch. I guess you can’t hear the tormented screams of the abused way up in the “ivory tower.”

Obviously, as proved over and over again during the past two years, the Trump Administration is without shame, incompetent, and beyond accountability.

However, Members of Congress and the Article III Judges could act tomorrow (yes, there are bills already drafted that nobody is seriously considering, and the multiple Due Process violations of our Constitution infecting every part of this corrupt system are patently obvious, even to my Georgetown Law students, let alone so-called “real” judges) to put an end to this nonsense that is literally killing folks and destroying innocent lives. They should be held fully accountable for their gross dereliction of duty and their mass failure to uphold their oaths of office.

On a cheerier note, here’s my favorite comment about Julia’s article from my good friend, colleage, and fellow blogger, retired Judge Jeffrey S. Chase:

[Retired Judge] Bob Vinikoor and I are quoted.The author, Julia Preston, actually first asked me “Is this Jeffrey Chase, the actor?”She had seen me perform in the play [Waterwell’s NY production of ‘The Courtroom’], and said I had sworn her in as a US citizen in the last scene, which, since she was born in Illinois, was something she had not previously experienced.

Hope your Actor’s Equity Card is in good standing, my friend!

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PWS

07-16-19

CONTACTS:
George Tzamaras 202-507-7649 gtzamaras@aila.org	Tessa Wiseman 202-507-7661 twiseman@aila.org

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