Hon. James McHenry EOIR Director – Page 5

TRUTH MATTERS: SETTING THE RECORD STRAIGHT: AILA Blasts EOIR’s False & Unethical Anti-Asylum Screed! — “Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions. EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.”

https://www.aila.org/advo-media/aila-policy-briefs/aila-policy-brief-facts-about-the-state-of-our

Policy Brief: Facts About the State of Our Nation’s Immigration Courts May 14, 2019
Contact: Laura Lynch (llynch@aila.org) or Kate Voigt (kvoigt@aila.org)
On May 8, 2019, the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) distributed a document to journalists that contained misleading material related to our nation’s immigration courts.1 The document, which purports to list “myths” and “facts”, is also filled with political rhetoric.2 America’s courts are meant to be impartial, dedicated to fairly and efficiently adjudicating the cases brought before them. Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions.3 EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.
• The immigration court structure is inherently flawed
Unlike many judicial bodies, the immigration courts lack independence from the executive branch because they are administered by EOIR, which is housed under DOJ – the same agency that prosecutes immigration cases at the federal level.4 This inherent conflict of interest is made worse by the fact that immigration judges (IJs) are considered merely government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the U.S. Attorney General (AG), the chief prosecutor in immigration cases.
Because of this structural flaw, the immigration court system has long been vulnerable to political pressure from the executive branch. For example, the courts have been repeatedly subject to “aimless docket reshuffling” based on politically motivated priorities.5 President Obama’s administration prioritized the adjudication of “family unit” cases which EOIR recently determined “coincided with some of the lowest levels of case completion productivity in EOIR’s history.”6 President Trump ordered IJs deployed to detention facilities on the border where they reported that they had very few cases to adjudicate. Over 20,000 cases were rescheduled as a result of the Administration’s deployment.7
• EOIR imposed unprecedented case completion quotas on judges, pressuring them to rush through cases at the expense of well-reasoned decisions
Despite opposition from immigration judges,8 EOIR imposed unprecedented case completion quotas, tying judges’ individual performance reviews to the number of cases they complete.9 Under the new requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.10 A strict time frame for completion of cases can interfere with a judge’s ability to ensure that a person’s right to examine and present evidence is respected, to provide adequate time to obtain an attorney, secure various expert witnesses, and obtain evidence from overseas.11 This kind of rushed, assembly-line justice is unacceptable to impose on IJs who are making important, often life-or-death, decisions.
During a March 7, 2019 congressional hearing, the director of EOIR asserted that several other agencies also utilize “case completion goals.”12 However, other agencies’ goals are used to determine resource allocation, while EOIR’s case completion quotas are tied directly to an IJ’s performance evaluations.13
AILA Doc. No. 19051438. (Posted 5/14/19)

AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the National Association of Immigration Judges (NAIJ) as a “death knell for judicial independence.”14 In fact, recommendations made by an independent third party in a report commissioned by EOIR itself propose a judicial performance review model that “emphasizes process over outcomes and places high priority on judicial integrity and independence.”15
• Scholars have concluded that immigrants represented by attorneys fare better at every stage of the court process
While Federal law guarantees immigrants facing deportation the right to be represented by an attorney, it does not provide immigrants with an attorney at the government’s expense if they cannot afford representation.16 Only 37 percent of all noncitizens and 14 percent of detained noncitizens are represented.17 However, the American Immigration Council has found that “immigrants with attorneys fare better at every stage of the court process” – people with attorneys are more likely to be released from detention during their case, they are more likely to apply for some type of relief, and they are more likely to obtain relief from deportation.18 The consequences for people who face removal without representation are severe: detained immigrants in removal proceedings who lack representation are about ten times less likely to obtain relief.19 Despite statistics that show the assistance of counsel has a significant positive impact on outcomes, thousands of families and unaccompanied children fleeing persecution and violence at home have appeared in immigration court over the years without a lawyer at their side.
Attorneys also help facilitate more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, stated, “when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”20 Recent studies have also confirmed that immigrants with representation are far more likely to comply with court appearance requirements.21 A recent report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) found that, as of December 2017, 97 percent of mothers in immigration court represented by counsel were in compliance with their immigration court obligations over a three year period.22
• The Legal Orientation Program improves judicial efficiency and fundamental fairness
EOIR has operated the Legal Orientation Program (LOP) in immigration detention centers since 2003.23 While not a substitute for legal counsel, LOP is often the only source of basic legal information that assists detained immigrants in navigating a complex court process. In fact, LOP has been proven to increase court efficiency and save taxpayer dollars. A 2012 study commissioned by DOJ demonstrated that the program decreased the average length of time a person is detained by an average of six days, saving approximately $17.8 million each year.24 EOIR’s own website publicly endorsed the LOP program in 2017, stating that “[e]xperience has shown that the LOP has had positive effects on the immigration court process,”25 and an independent report commissioned by EOIR recommended that DOJ “consider expanding know your rights and legal representation programs, such as … LOP.”26 Despite this overwhelming support, DOJ attempted to end the program in April 2018 and removed content on its website that endorsed the program.27 After significant criticism, it rescinded its proposed termination, but continues to undermine the program by releasing flawed evaluations of its efficacy. 28
• Court statistics demonstrate that asylum grant rates vary widely depending on the judge
It is well-documented that the disparity in asylum grant rates is an endemic problem.29 The grant rates for cases vary widely depending on the judge—asylum grant rates are less than 5 percent in some jurisdictions yet higher than 60 percent in others—and give rise to criticism that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.30 EOIR has not taken adequate
2
AILA Doc. No. 19051438. (Posted 5/14/19)

corrective action to address this problem and ensure that court proceedings are conducted in a fair and consistent manner. The agency’s inadequate response illustrates the weakness of a court system not overseen by an independent judicial agency whose primary function is to ensure the rule of law, impartiality, and due process in the adjudication of cases.
• Use of video teleconferencing (VTC) undermines the quality of communications during immigration hearings and threatens due process
For years, legal organizations have opposed the use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.31 An empirical study published in the Northwestern University Law Review revealed that detained respondents appearing via VTC were more likely to be deported than those with in-person hearings.32 In April of 2017, a separate EOIR-commissioned report explained that VTC technology does not provide for the ability to transmit nonverbal cues, which can impact an immigration judges’ assessment of an individual’s demeanor and credibility.33 The report concluded that proceedings by VTC should be limited to procedural matters because appearances by VTC may interfere with due process.”34
Additionally, technological glitches such as weak connections and bad audio can make it difficult to communicate effectively via VTC. An EOIR-commissioned study revealed that 29 percent of EOIR staff reported that VTC caused meaningful delay, a finding that is supported by accounts from courts including Omaha, which reported that VTC technology works “sometimes,” Salt Lake City, where observers stated that “technical delays are common,” and New York City, where immigration attorneys describe a VTC connection that “often stops working.”35 While EOIR claims that few cases are continued due to VTC malfunction, in reality, judges are only allowed to record one reason for a case being continued even if VTC issues contribute to a delay, which means that EOIR’s data is far from precise. 36 Despite these concerns, EOIR has expanded its use of VTC for substantive hearings, going as far as to create two immigration adjudication centers where IJs adjudicate cases from around the country from a remote setting.37
• Congress must establish an Article I immigration court system to ensure functioning courts
Congress should conduct rigorous oversight into policies that have eroded the court’s ability to ensure that decisions are rendered in a timely manner and consistent with the law and the Constitution’s guarantee of due process. However, given its political dysfunction, years of underfunding, and inherently flawed structure, our immigration court system must be restructured into an Article I court system in order to restore the most important guarantee of our legal system: the right to a full and fair hearing by an impartial judge.38 For more information, go to www.aila.org/immigrationcourts.
1 EOIR, Myths vs. Facts About Immigration Proceedings, May 8, 2019.
2 The National Association of Immigration Judges (NAIJ) stated that “DOJ’s key assertions under both the “myths” and the “facts” either mischaracterize or misrepresent the facts.” See NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019. Furthermore, twenty-seven retired immigration judges (IJ) and former members of the Board of Immigration Appeals (BIA) deemed the document to be “political pandering” and proclaimed that “American Courts do not issue propaganda implying that those whose cases it rules on for the most part have invalid claims.” Round Table of Former Immigration Judges, EOIR “Myth vs. Fact” Memo, May 13, 2019.
3 Catherine Shoichet, CNN Politics, The American Bar Association says US immigration courts are ‘on the brink of collapse’, Mar. 20, 2019.
4 DOJ, Organization Chart, Feb. 5, 2018.
5 Retired Immigration Judge Paul Schmidt, Speech to the ABA Commission, Caricature of Justice: Stop the Attack on Due Process, Fundamental Fairness, and Human Decency in Our Captive Dysfunction U.S. Immigration Courts!, May 4, 2018; NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
3
AILA Doc. No. 19051438. (Posted 5/14/19)

6 Eric Katz, Government Executive, ‘Conveyer Belt’ Justice: An Inside Look at Immigration Courts, Jan. 22, 2019; EOIR, Tracking and Expedition of “Family Unit” Cases, Nov. 11, 2018
7 National Immigrant Justice Center (NIJC), Internal DOJ Documents Reveal Immigration Courts’ Scramble to Accommodate Trump Administration’s “Surge Courts, Sept. 27, 2017.
8 NAIJ, Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, May 2, 2018.
9 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018; Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018; and EOIR’s Strategic Caseload Reduction Plan, Oct. 23, 2017.
10 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018.
11 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence. See AILA Policy Brief: Imposing Numeric Quotas on Judges Threatens the Independence and Integrity of Courts, Oct. 12, 2017.
12 House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies (116th Congress), Executive Office for Immigration Review, Mar. 7, 2019.
13 In fact, Congress “specifically exempted ALJs from individual performance evaluations as a mechanism to ensure their independence from such measures and protect the integrity of their decisions.”
See NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
14 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges, Oct. 2017.
15 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
16 8 U.S.C. §1362 (West 2018).
17 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016.
18 Id.
19 AILA and the American Immigration Council, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018.
20 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
21 Human Rights First, Immigration Court Appearance Rates, Feb. 9, 2018.
22 Retired Immigration Judge Paul W. Schmidt, Immigration Courts: Reclaiming the Vision, May 2017.
23 The American Immigration Council, Legal Orientation Program Overview, Sept. 2018.
24 DOJ, Cost Savings Analysis – The EOIR Legal Orientation Program, Apr. 4, 2012.
25 The Wayback Machine, EOIR Legal Orientation Program, as of Dec. 24, 2017.
26 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
27 Maria Sacchetti, The Washington Post, Justice Dept. to halt legal advice-program for immigrants in detention, Apr. 10, 2018; The Wayback Machine, EOIR Legal Orientation Program, as of May 5, 2018.
28 U.S. Department of Justice, Opening Statement of Attorney General Jeff Sessions Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Apr. 25, 2018. See also Vera Institute of Justice, Statement on DOJ Analysis of Legal Orientation Program, Sept. 5, 2018.
29 See Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016; See also GAO Report, Asylum Variation Exists in Outcomes of Applications Across Immigration Courts and Judges, Nov. 16, 2016, “For fiscal years 1995 through 2014, EOIR data indicate that affirmative and defensive asylum grant rates varied over time and across immigration courts, applicants’ country of nationality, and individual immigration judges within courts.”
30 AILA Statement, Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration Hearing on “Strengthening and Reforming America’s Immigration Court System,” Apr. 18, 2018.
31 AILA Comments, ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Comments to ACUS, Responds to Taking Steps to Enhance Quality and Timeliness in Immigration Removal Adjudication, Feb. 17, 2012. 32 Ingrid Eagly, Northwestern Law Review, Remote Adjudication in Immigration, 2015.
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33 Booz Allen Hamilton Report on Immigration Courts. In June of 2017, the GAO issued a report raising concerns that, “EOIR has not adopted the best practice of ensuring that its VTC program is outcome-neutral because it has not evaluated what, if any, effects VTC has on case outcomes.”
34 Booz Allen Hamilton Report on Immigration Courts.
35 Booz Allen Report on Immigration Courts; Tom Hals, Reuters, Groups sue U.S. to stop deportation hearings by videoconference in New York, Feb. 13, 2019; Kelan Lyons, Salt Lake City Weekly, Technical Difficulties, Oct. 10, 2018; Beth Fertig, WNYC, Do Immigrants Get a Fair Day in Court When It’s by Video? Sept. 11, 2018.
36 EOIR, Myths vs Facts About Immigration Proceedings, May 8, 2019; NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019.
37 U.S. Department of Justice, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017. See also Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
38 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
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Seems like there is more than enough here for Congress to request that the DOJ Inspector General institute an investigation into ethical abuses and gross mismanagement by McHenry and other EOIR officials who are not only failing to fairly, impartially, and efficiently administer the Immigration Court system, but are also using Government time and resources to spread demonstrable lies and a nativist political propaganda. They also are using these knowingly false narratives to “shift blame” for their mismanagement to the victims: asylum applicants, their attorneys, and NGOs.

BTW, what exactly do the Chief Immigration Judge and the Chairman of the BIA do these days? These supposedly high level (and well-compensated) EOIR Senior Executives responsible for insuring judicial independence and fundamental fairness apparently have disappeared from public view. Have they been reduced to “hall walker” status in the finest tradition of the DOJ (under all Administrations) of “exiling” senior career officials who “don’t fit with the Administration’s political program? ” Perhaps the IG should also check into this.

In any event, the amount of corruption and “malicious incompetence” in EOIR management should make an independent Article I U.S. Immigration Court a legislative imperative!

PWS

05-16-19

THE ASYLUMIST WEIGHS IN ON EOIR’S “FACT SHEET:” “Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun?”

http://www.asylumist.com/2019/05/15/the-myths-and-facts-that-eoir-does-not-want-you-to-see/

Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.

I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.

EOIR has released a new “Myths vs. Facts” brochure.

This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:

Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more.
Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.

Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream.
Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.

Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS.
Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!

Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget.
Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.

Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration.
Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…

So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?

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Jason is absolutely correct. Truth eventually will win out.

But, some have already died or been irreparably harmed, and other migrants will be needlessly sacrificed on the alter of nativist White Nationalism before this corrupt Administration eventually is removed.

We have already diminished ourselves as a nation. Will we ever recover? Will those responsible at EOIR, DOJ, DHS, Congress, the Article III Courts, and elsewhere ever be held fully accountable for their lies and corrupt roles in trashing human rights and our Constitution?

PWS

05-17-19

MULTIPLE ORGANIZATIONS “CALL BS” ON EOIR’S “LIE SHEET” — No Legitimate “Court” Would Make Such a Vicious, Unprovoked, Disingenuous Attack On Asylum Seekers & Their Hard-Working Representatives!

Here’s a compendium of some of the major articles ripping apart the “litany of lies and misrepresentations” created by EOIR, America’s most politically corrupt and ineptly run “court” system.

Thanks to the the National Association of Immigraton Judges (“NAIJ”) for assembling this and making it publicly available.

https://www.naij-usa.org/news/setting-the-record-straight

PWS

05-13-19

SPECIAL: “ROUNDTABLE OF FORMER IMMIGRATION JUDGES” BLASTS EOIR DIRECTOR McHENRY FOR SPREADING LIES & MISREPRESENTATIONS, POLITICAL PANDERING, UNDERMINING JUDICIAL INDEPENDENCE, AND GROSS DERELICTION OF DUTY TO PROTECT DUE PROCESS! — “The time for you to renew the agency mission is long overdue. Your job is to insulate the agency from political influences from the Department of Justice and beyond. Nothing short of judicial independence, neutrality, and fairness is acceptable for courts that make life and death determinations such as those which arise in immigration claims.” Today’s EOIR Is A Massive Fraud That Must Be Replaced With Real Courts Committed To Providing Justice To All!

https://www.naij-usa.org/news/setting-the-record-straight

Judge Jeffrey S. Chase, Leader of the Roundtable of Former Immigration Judges

James McHenry, Director
Executive Office for Immigration Review 5107 Leesburg Pike, 26th Floor
Falls Church, VA 22041
Re: EOIR “Myth vs. Fact” memo Mr. McHenry:
As former Immigration Judges and BIA Board Members, we write to state our offense at EOIR’s recently issued memo purporting to present imagined “myths” and wildly inaccurate and mis- leading information labeled as “fact.” The issuance of such a document can only be viewed as political pandering, at the expense of public faith in the immigration courts you oversee.
Even if anything contained in the memo is actually correct, it is simply not EOIR’s place to be issuing such a document. EOIR’s function is to protect the independence and integrity of the hundreds of judges who sit in its Immigration Courts, on the BIA, and within OCAHO.
American courts do not issue propaganda implying that those whose cases it rules on for the most part have invalid claims; that the participation of lawyers in its hearings provides no real value and has no impact on outcome; that the government’s own program to assist litigants in obtaining legal representation is a waste of taxpayer money; or that those unable to surmount the government-created obstacles to filing asylum applications are somehow guilty of deceit. Such statements indicate a bias which is absolutely unacceptable and, frankly, shocking.
We all had the honor of serving as judges within EOIR. Many of us remember when EOIR’s stated vision was “through teamwork and innovation, [to] be the world’s best administrative tri- bunals guaranteeing fairness and due process for all.” We remember a time when EOIR’s lead- ership took that mission seriously, and strove to achieve it.
The time for you to renew the agency mission is long overdue. Your job is to insulate the agency from political influences from the Department of Justice and beyond. Nothing short of judicial independence, neutrality, and fairness is acceptable for courts that make life and death determinations such as those which arise in immigration claims.
May 13, 2019

Hon. Steven Abrams, Immigration Judge, New York, Varick St., and Queens Wackenhut Detention Center, 1997-2013
Hon. Sarah M. Burr, Assistant Chief Immigration Judge and Immigration Judge, New York, 1994-2012
Hon. Esmerelda Cabrera, Immigration Judge, New York, Newark, and Elizabeth, NJ, 1994-2005 Hon. Teofilo Chapa, Immigration Judge, Miami, 1995-2018
Hon. Jeffrey S. Chase, Immigration Judge, New York, 1995-2007
Hon. George T. Chew, Immigration Judge, New York, 1995-2017
Hon. Bruce J. Einhorn, Immigration Judge, Los Angeles, 1990-2007 Hon. Cecelia M. Espenoza, Board Member, BIA, 2000-2003
Hon. Noel Ferris, Immigration Judge, New York, 1994-2013
Hon. John F. Gossart, Jr., Immigration Judge, Baltimore, 1982-2013 Hon. Miriam Hayward, Immigration Judge, San Francisco, 1997-2018 Hon. Rebecca Jamil, Immigration Judge, San Francisco, 2016-2018 Hon. William P. Joyce, Immigration Judge, Boston, 1996-2002
Hon. Carol King, Immigration Judge, San Francisco, 1995-2017
Hon. Elizabeth A. Lamb, Immigration Judge, New York, 1995-2018
Hon. Donn L. Livingston, Immigration Judge, New York and Denver, 1995-2018 Hon. Margaret McManus, Immigration Judge, New York, 1991 – 2018
Hon. Charles Pazar, Immigration Judge, Memphis, 1998-2017
Hon. Laura Ramirez, Immigration Judge, 1997-2018
Hon. John W. Richardson, Immigration Judge, Phoenix, 1990-2018
Hon. Lory D. Rosenberg, Board Member, BIA, 1995 – 2002.
Hon. Susan G. Roy, Immigration Judge, Newark, 2008-2010.

Paul W. Schmidt, Chairman and Board Member, BIA, 1995 – 2003; Immigration Judge, Arlington, 2003-2016.
Hon. Denise Slavin, Immigration Judge, Miami, Krome, and Baltimore, 1995-2019 Hon. Ilyce Shugall, Immigration Judge, San Francisco, 2017-2019
Hon. Andrea Hawkins Sloan, Immigration Judge, Portland, 2010 – 2017
Hon. Polly A. Webber, Immigration Judge, San Francisco, 1995-2017

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Right on! EOIR, which has become an spreader of lies and false marratives, and which has abandoned its due process focused mission, needs to be eliminated. More will be coming on the disgusting “Lie Sheet” put out by EOIR last week. EOIR “Management,” which has demonstrated beyond any reasonable doubt its inability to competently administer the Immigration Court system, is also a morass of intellectual dishonesty and political toadyism. What a waste of taxpayer money and public trust!

PWS

05-12-19

EOIR DIRECTOR McHENRY TRIES TO EXPLAIN TRASHING OF DUE PROCESS TO SKEPTICAL HOUSE DEMS — DOJ Leadership Has Turned “Courts” Into “A DMV For Deportation,” Says Chairman Jose Serrano (D-NY)!— Many Cases From Trump Shutdown Still “MIA” While Lives Hang In The Balance!

https://www.cbsnews.com/news/immigration-court-government-shutdown-immigrants-waiting-for-cancelled-hearings-rescheduled-2019-03-11/

Kate Smith reports for CBS News:

Immigration courts are still wading through the disruptions caused by the government shutdown, which closed the courts and effectively cancelled between 50,000 and 95,000 hearings in December and January.

Many immigrants are still waiting to have those hearings rescheduled, James McHenry, the director of the Executive Office for Immigration Review which oversees the nation’s immigration courts, told lawmakers during a hearing last week. “The courts are in the process of rescheduling those, they’ve been working overtime since the shutdown ended to get that done,” McHenry said.

Congressman Jose Serrano, who chaired the hearing, called the delay “deeply problematic,” in an email to CBS News. The nation’s immigration courts reopened on January 28 after being closed for over a month during the partial government shutdown.

“It is ironic that this Administration’s obsession with building a wall only increased the number of immigrants in limbo, aggravating an already serious crisis,” said Serrano, who represents New York’s 15th district. “There needs to be a serious effort to reschedule these hearings quickly”

Although McHenry estimated that 50,000 immigration cases were cancelled during the shutdown, others say the number could be nearly double that. According to Syracuse University’s TRAC, 80,051 hearings during the shutdown were either outright cancelled or had their status left unchanged — the hearing date simply came and went without acknowledgement, leaving affected migrants to wonder what comes next.

TRAC said the number of cancelled cases rises to more than 94,000 when it includes other factors, like “Docket Management” or “Immigration Judge Leave.”

Many hearings scheduled for the week after the government reopened were also postponed as court clerks waded through over a month’s worth of filings that hadn’t been touched during the shutdown. Rather than processing those documents, court administrators in Charlotte, North Carolina, for example, threw them into brown cardboard boxes for clerks to deal with once the court opened, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina.

The immigration court system, which is overseen by the Department of Justice, handles a range of cases involving non-citizens, including issuing green cards and ruling on asylum claims. The courts also serve as a necessary step toward temporary Social Security cards — needed for work permits and driver’s licenses — making hearings intensely important for immigrants.

The Executive Office of Immigration Review declined to comment on the status of the courts after the shutdown.

CBS News spoke with six immigration attorneys, all of which have at least one client whose cancelled case hasn’t yet been rescheduled. Many of the hearings that were have yet to be rescheduled are for migrants seeking asylum, a legal form of immigration for people fleeing persecution and threats in their home country. One immigrant was waiting on a final hearing on their asylum case, a decision that would determine whether she gets to stay in the United States or be deported.

“The impact on the client is just not knowing,” said McKinney.

The cancellations have also added to the system’s record-high case backlog, which McHenry estimated to be 850,000 during Thursday’s hearing. Once the courts have fully realized the impact from the shutdown, immigration advocates predict it will get even bigger.

For the immigrants with cancelled hearings, getting back in front of a judge could take years. At the Newark, New Jersey immigration court, some cancelled hearings have been penciled in as far back as August 2021, said Alan Pollack, an immigration attorney in New Jersey, in an interview with CBS News. In Houston, the immigration court begun issuing dates in 2022, said Ruby Powers, an immigration attorney.

“We’re getting a bit used to things taking a while and a dose of chaos,” Powers said.

First published on March 11, 2019 / 12:29 PM

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

Here’s Subcommittee Chairman Jose Serrano’s (D-NY) “spot on” statement about the DOJ’s “dissing” of Due Process at EOIR.

https://appropriations.house.gov/news/press-releases/chairman-serrano-statement-at-hearing-on-executive-office-for-immigration-0

Chairman Serrano Statement at Hearing on Executive Office for Immigration Review

March 7, 2019

Press Release

Congressman José E. Serrano (D-NY), Chair of the Commerce, Justice, Science and Related AgenciesAppropriations Subcommittee, delivered the following remarks at the Subcommittee’s hearing on the Executive Office for Immigration Review:

The subcommittee will come to order.

For our second hearing of the year, today we welcome James McHenry, the Director of the Executive Office for Immigration Review, or EOIR. EOIR primarily functions as our nation’s immigration court system, where it administers and adjudicates our nation’s immigration laws. Thank you for being with us, Director McHenry.

I wanted to hold this hearing because I have deep concerns about how our nation’s immigration courts are operating. Some of those concerns are longstanding, while others have been exacerbated by the decisions of the Trump Administration.

Our nation’s immigration courts handle a wide variety of immigration-related claims, from removal proceedings to asylum claims. These are complex, nuanced proceedings that require time, understanding, and care. In many cases, the consequence—removal from this country—is so severe that we must have significant due process to ensure that no one’s rights are violated in an immigration court proceeding.

Unfortunately, these concerns are increasingly being shoved aside. This, in part, is due to the enormous, and growing, backlog of pending cases before the courts, which is now more than 1 million cases, according to the Transactional Records Access Clearinghouse at Syracuse University. That growth is largely due to the significant increase in immigration enforcement efforts over the past 15 years, which has not been followed by a similar growth in the immigration court system. Although this subcommittee has included significant increases in immigration judge teams for the past two fiscal years, the backlog has actually increased under the Trump Administration. This situation was worsened by the recent government shutdown.

The reasons for that are sadly clear. The leadership at the Justice Department has attempted to turn our immigration courts into a sort of deportation DMV– where immigrants get minimal due process on their way out the door. This Administration has chosen to: impose quotas on immigration judges to limit case consideration regardless of complexity; limit the ways in which immigrants can make valid claims for asylum; increase the use of videoconferencing to reduce in-person appearances; and undermine the discretion of immigration judges to administratively close cases, among many other things. Ironically, these choices, supposedly aimed at efficiency, have actually increased the backlog.

I believe our immigration courts should strive to be a model of due process. A couple of bright spots in that effort are the Legal Orientation Program and the Immigration Court Help Desk, both of which help to better inform immigrants about their court proceedings. We should seek to expand such programs.

Despite these efforts, in our current system, an estimated 63 percent of immigrants do not have legal counsel. We’ve all read stories about children, some as young as 3 years old, being made to represent themselves. That is appalling. Our immigration laws are complicated enough for native English speakers, let alone those who come here speaking other languages or who are not adults. We can, and should, do better than this.

Today’s hearing will explore the choices we are making in our immigration court system, to better understand how the money we appropriate is being used, and whether it is being used in line with our expectations and values. Thank you, again, Director McHenry, for being here.

Now let me turn to my friend, Mr. Aderholt, for any comments he may have.

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

It’s painfully obvious that Director McHenry doesn’t have the faintest idea how many cases are actually “off docket” because of the Trump Administration’s malicious incompetence, a/k/a ”Aimless Docket Reshuffling.”

As Chairman Serrano observed, the vision of the Immigration Courts once was “through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” That noble vision has been replaced by a “partnership” with DHS Enforcement to misconstrue the law, deny rights, punish those we should be protecting, and reduce “Immigration Judges” to menial “rubber stamps” on cruel, illegal, and unduly harsh enforcement actions in the hopes that the Article III Courts will “take a dive” and “defer” rather than intervening to put an end to this travesty.

Chairman Serrano and others have identified the problem. But they haven’t solved it!

That will require the removal of the Immigration Courts from the DOJ and establishing an independent Article I U.S. Immigration Court where Due Process can flourish, fundamental fairness will be the watchword, “best practices” (not merely expediency) will be institutionalized, and all parties will be treated equally and respectfully, thus putting an end to years of preferential treatment of DHS.

PWS

03-12-19

GOVERNMENT BY MALICIOUS INCOMPETENTS: Trump Administration’s Latest “Backlog Reduction Plan” — Slow Down Hiring Of U.S. Immigration Judges & Support Staff — Abandon E-Filing (Again) — Barr Wins His First “Five Clown” Rating In Record Time! 🤡🤡🤡🤡🤡

https://www.buzzfeednews.com/amphtml/hamedaleaziz/trump-administration-immigration-judges-hiring-pause?__twitter_impression=true

Hamed Aleaziz reports for BuzzFeed News:

The Trump administration will pause its hiring of immigration judges, slow its procuring of support staff, and cancel a training conference, dealing a setback to the government’s efforts to cut down on a crushing backlog of cases, according to a Justice Department email obtained by BuzzFeed News.

James McHenry, director of the Executive Office for Immigration Review, notified immigration court staff in an email Wednesday morning, advising that the timing of the 2019 budget process has left them “considerably short of being able to fulfill all of our current operational needs.”

McHenry cited increases in costs related to transcriptions, operational needs, and interpreters.

“This challenging budget situation has led us to a position where difficult financial decisions need to be made,” wrote McHenry.

As a result of the funding issues, McHenry said, the court does not “anticipate” it will be able to hire additional judges after an already scheduled class of judges is brought on board in April. The budget costs will also impact the court’s hiring of 250 attorneys needed to support immigration judges.

The pause on hiring delivers a blow to an administration that has long complained that the immigration court backlog, which has increased in recent years to more than 800,000 cases, has led to wait times stretching months and years.

The budget signed by President Trump this year had been described as a way for the immigration court to hire an additional 75 immigration judge teams.

A Department of Justice official, Steven Stafford, disputed the notion it would freeze hiring, arguing that it was simply not continuing to hire judges at the same pace. McHenry noted that the administration had hired 174 new immigration judges in the last two years and now has more than 400 judges on staff.

Rebecca Blackwell / AP

A migrant family enters the US near Imperial Beach, Calif., after squeezing through a small hole under the border wall.

The news comes a day before McHenry is set to speak before the House Appropriations Committee and as the court withstands criticisms from the union that represents immigration judges and moves to increase productivity, including quotas.

In recent months, many judges, who oversee asylum claims and deportation cases, have retired or resigned citing interference in how they were handling cases.

“This administration has justified so many of their more draconian policies in terms of ‘we have got to lower the backlog’ and then all of a sudden they don’t have the funds to hire more immigration judges,” said Jeffrey Chase, a former immigration judge. “If their true goal is to provide fair adjudications more quickly, then this is inconsistent with that. More people will wait longer.”

The nationwide rollout of a new online filing system, meant to help improve efficiency, will be frozen, McHenry said, and additional delays on new court spaces will also be possible this year.

“We are doing our best at headquarters to ensure that our funds are spent in the most fiscally responsible manner possible,” he said in the email to staff, “while consistently meeting the needs and mission of the agency.”

Quick takes:

Duh! Who would have thought that hiring more judges would require more interpreters, transcripts, and “operational support.” Certainly not the geniuses at DOJ/EOIR;
After 18 years of fruitless effort, DOJ/EOIR fail yet again to deliver on e-filing (in and of itself enough reason to get this out of DOJ and “can” the EOIR ineffective management structure);
Apparently, building largely useless walls and wasting money on troops at the border are more important “priorities” for reducing the backlog than actually hearing and deciding cases;
Court morale is already at an all time low — this ought to send it even lower;
Count on this touching off yet another round of EOIR’s renowned “Aimless Docket Reshuffling” and more vicious and disingenuous “Victim Blame Shaming;”
Bad start for new AG Bill Barr — Sessions “set the bar on the ground,” but you still might not get over it;
On the bright side, since in the “wacky incompetent world” of DOJ/EOIR more judges actually = more backlog, perhaps fewer judges will = less backlog.

The Immigration Court system is a farce, and EOIR doesn’t have the faintest idea of how to fix it (nor does anyone else in the Trump Kaksitocracy for that matter). Unfortunately, lives are at stake here. To quote Casey Stengel again: “Can’t anyone here play this game?”

TODAY’S FIVE CLOWN AWARD GOES TO RECENTLY APPOINTED AG BILL BARR — SELDOM HAS SOMEONE LOOKED SO STUPID WITHIN SUCH A SHORT TIME OF TAKING AN OFFICE (THAT HE PREVIOUSLY HELD):

🤡🤡🤡🤡🤡

PWS

03-07-19

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

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

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

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

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

I. Crippling Asylum Access, then Touting Low Approval Rates

as Evidence of Fraud

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

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

January 2019 immigrantjustice.org

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

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

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

II. Distorting Immigration Court Representation and Appearance Data

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

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

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

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

2

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

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

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

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

“Criminal” Immigrants

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

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

3

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

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

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

Conclusion

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

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

4

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

Acknowledgments

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

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

Endnotes

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

02-15-19

EOIR CLIMBS ON TRUMP’S WHITE NATIONALIST DEPORTATION EXPRESS BY UNFAIRLY TARGETING REFUGEE FAMILIES — Read The Latest Analysis From Hon. Jeffrey S. Chase!

https://www.jeffreyschase.com/blog/2018/12/13/eoirs-creates-more-obstacles-for-families

Dec 13 EOIR’s Creates More Obstacles for Families

In a November 16 memo to immigration judges, EOIR’s Director, James McHenry, announced that after a nearly two-year reprieve, “Family Unit” cases are again being prioritized, under conditions designed to speed them through the immigration court system, ready or not, with or without representation, due process be damned.

“Family Unit” is a term created by the Department of Homeland Security as an “apprehension classification” which consists of an adult noncitizen parent or legal guardian, accompanied by his or her own juvenile noncitizen child. Of course, many of the highly-publicized cases of children separated from their parents at the border fall within this category.

Under the new procedures, all Family Unit (or in EOIR parlance, “FAMU”) cases must be completed within 365 days of the commencement of removal proceedings. Just as a point of comparison, many immigration judges in New York are presently setting non FAMU cases for hearings in late 2021. So EOIR wants FAMU cases to be completed in a third of the time of other cases.

In order to accomplish this, such cases (at least in the New York court) are to be scheduled for their first Master Calendar hearing before an immigration judge within 30 days of the court’s receipt of the charging document that commences proceedings. The parent and child are then to be given only one continuance of 40 to 45 days in order to try to obtain counsel. After that, the cases are to be set for a final merits hearing another five to six months out. That only adds up to about 8 months, I imagine to allow another four month “safety zone” just in case. Immigration judges are further directed to make sure they complete the cases in 365 days, and to get them done as soon as possible.

To further increase the odds of success, the FAMU cases are being assigned to brand new immigration judges, for the following reasons. First, the new judges are mostly former ICE prosecutors. Secondly, the new judges are on probation for two years, making them more likely to obey rules in a desire to keep their jobs. The new judges have also just been through training at which they were instructed by the Attorney General that sympathy has no place in their work, that those fleeing domestic violence and gang violence are undeserving of asylum, and that it is more important for them to be efficient than fair.

Judges are expected to bump non-FAMU cases if necessary to meet the completion goals. In other words, those who have patiently waited three years or longer for their day in court, and who have their evidence and witnesses lined up in the hopes of finally obtaining legal status in this country, now run the risk of having their hearings bumped for who knows how much longer in order to speed through the case of a parent and child who likely need more time to obtain counsel and prepare their claims.

I have checked with legal service providers in New York City, and have been told that the 40 to 45 days being provided by EOIR is generally not a sufficient amount of time for the respondents in such cases to retain counsel. Outside of large cities like New York, this time frame is even less realistic, due to the fewer number of NGOs receiving funding to do this type of work.

The new policy therefore lessens the likelihood that families will be able to be represented in their removal proceedings. Unfortunately, recent changes in the law achieved through the certification of cases by the Attorney General (which has continued even under interim AG Whitaker) has made the need for legal representation far more important. It is a daunting task for an unrepresented victim of domestic violence to clearly state a detailed particular social group, defined by an immutable characteristic (but not by the feared harm), and establishing the group’s particularity and social distinction in society; to then establish that the persecutor was motivated by her membership in such group; and then demonstrate both that the government was unwilling or unable to protect her and that she could not reasonably relocate within her country

As I noted in an earlier blog post, https://www.jeffreyschase.com/blog/2018/1/26/0sg8ru1tl0gz4becqimcrtt4ns8yjz the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 28 that “a person is a refugee within the meaning of the 1951 Convention as soon as he fulfills the criteria contained in the definition…Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.” So the above requirements for particular social group claims are essentially an obstacle course that someone who is already a refugee must negotiate in order to have our government grant them the legal status to which they are entitled. The recent AG decisions have increased the difficulty of the course, and the new FAMU directive will mean that these most vulnerable refugees will have to negotiate the course at breakneck speed, and likely without the assistance of counsel. It bears noting that whatever particular social group definition the asylum-seeker offers the judge is crucial; if it contains one word too many or too few, pursuant to a recent BIA precedent decision, it cannot be corrected on appeal, even if by that stage the applicant has managed to procure representation.

Through these methods, the present administration is playing a game which will result in fewer grants of asylum. The lower grant rate will then allow the administration to claim that those seeking refuge at our southern border are not really refugees, which in turn will allow them to create even greater obstacles, which will in turn lead to even fewer asylum grants.

Tragically, the stakes in this game are high. A recent Washington Post article https://www.washingtonpost.com/graphics/2018/local/asylum-deported-ms-13-honduras/?fbclid=IwAR1vLkNYocAUDPMpfHYgCGKq9jgudMgoTZE5_akRomir-Xk-u4US3crFX88&utm_term=.b7a523fb913e reported on an asylum-applicant who, after being deported to Honduras, was killed by MS-13, just as he had predicted during his hearing in immigration court. The same article stated that Columbia University’s Global Migration Project has tracked more than 60 deportees who were harmed or killed upon return to their countries. As the process is sped up, the number of mistakes leading to wrongful deportations will only increase.

As a former immigration judge, I can say with authority that it takes time and effort to reach the correct result in these cases; furthermore, the accuracy of asylum decisions greatly increases with the involvement of those with knowledge of the legal requirements. In its speed over accuracy approach, and its gaming of the system to deny more asylum claims for its own political motives, the present administration is telling refugee families that only the first and last letters of “FAMU” apply to them.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Dec 8 Interpreting Pereira: A Hint of Things to Come?

WITH SESSIONS GONE, EOIR DIRECTOR McHENRY TAKES POINT IN ALL OUT ATTACK ON DUE PROCESS, ASYLUM SEEKERS, IMMIGRATION JUDGES, AND REALITY!

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.justice.gov_eoir_page_file_1112581_download&d=DwMFAw&c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&r=Wq374DTv_PXfIom65XBqoA&m=vBNdG88wJjdA06Fq_GLujzYMJw5il7nmwzf2YZX_oFg&s=S0-8lFsHprZ1S04dwj_YVFuz8G6q_w-dZPmwquinIzI&e=

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Read the memo at the above link.

In his last out of touch missive, McHenry said that one year was a “reasonable period” for adjudicating an asylum application in accordance with Due Process. Now it’s six months or less!
The “statutory limit” in section 208 never had any basis in fact. It was a number pulled out of thin air by Congress and has never been achievable.
In any event, Congress’s and EOIR’s attempt to place and enforce statutory limits on adjudication can never contravene Due Process.
Heck, when I was in Arlington, most “affirmative” asylum cases were more than six months from filing before they even got on my docket at Master Calendar.
For “defensive” filings (those asylum applications filed initially with the Immigration Court), there is no way that with 1.1 million cases already on the docket and scheduled, new cases could be fairly completed within six months without massive, massive “Aimless Docket Reshuffling” that will jack up the backlog even further.
Given the “docket overload” in the Immigration Courts, there simply aren’t enough qualified attorneys (particularly pro bono attorneys) available to represent asylum applicants with six months or less to prepare. Many pro bono organizations can’t even schedule “intake interviews” within six months!
In the Sessions mold, McHenry, who has never to my knowledge adjudicated an asylum application in his life, is attempting to “duress” judges into choosing between upholding Due Process and their oaths of office and following unreasonable agency directives aimed exclusively at screwing asylum seekers and promoting more denials.
The cases are more complex than ever. If anything, the DOJ should be promulgating a “blanket exemption” from the six month period given the current overall circumstances.
The obtuse “two standard” interpretation is completely new; although the statute has been in effect for approximately two decades, nobody has ever interpreted that way before!
This is an obvious, heavy handed attempt by non-judicial officials at EOIR and DOJ to interfere with and direct the independent decision making responsibilities of the Immigration Judges.
This system is heading down the tubes! It’s a farce! If the Article IIIs don’t put an end to it, it will go down as one of the most disgraceful mockeries of our Constitution and the rule of law since the days of Jim Crow! Not to mention a total and intentional perversion of international protection standards.

PWS

11-19-18

EYORE FIDDLES WITH DOCKET AS ROME BURNS – Latest Bureaucratic Gobbledygook From Falls Church Shows Why EOIR Must Be Abolished & Replaced By An Independent Court, Run By Sitting Judges, With Professional, Apolitical Administration!

https://www.justice.gov/eoir/page/file/1112036/download

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So, let’s see what’s really going on here, beneath all of the “Tower bureaucratese.”

Bureaucrats at Falls Church “Headquarters,” who are beholden to DOJ politicos, are setting the local Immigration Court docket priorities to the exclusion of sitting Immigration Judges, Respondents’ Counsel, NGOs and the members of the public who actually use the system;
But one party, the DHS, is effectively being given unilateral authority to establish the Immigration Courts’ “docket priorities;”
DHS also unilaterally decides which cases will be designated as “family units” and therefore “prioritized;”
EOIR notes that the prioritization of certain “aliens with children” cases between 2014 and 2017, also at the behest of DHS, was a MASSIVE failure that actually decreased productivity and significantly accelerated the backlog (what I refer to as “Aimless Docket Reshuffling”);
Nevertheless, EOIR inexplicably decides to “double down” on a known failure just because their “partners” (Sessions’s term) at DHS essentially have ordered them to do so;
Why “Baltimore, but not Arlington;” “San Francisco, but not San Diego,” “Denver, but not Dallas,” etc.?
“EOIR remains committed to the timely completion of all cases consistent with due process” — Really?
- Lead by enforcement guru Jeff Sessions and DHS, the Trump Administration has intentionally “artificially jacked” the “backlog” to over 1.1 million cases;
- If the approximately 350 currently authorized Immigration Judges were all on board and each met their 700 case “quota,” the Immigration Court could complete only about 250,000 cases per year;
- If no additional cases were filed, and none of the judges left, the pending cases wouldn’t be completed until the latter half of 2023;
- But of course, under the Trump Administration’s mismanaged and totally undisciplined enforcement program, new cases will be piled into the system without regard to its capacity and judges will continue to burn out and leave;
- So, effectively, there is no cogent program for getting the backlog under control — ever;
What’s missing from this bureaucratic never-never land is any sense of fairness, competence, or meaningful participation by those most affected by the backlogs and “Aimless Docket Reshuffling” and who possess the most expertise at arranging dockets for fairness and efficiency: sitting Immigration Judges, Respondent’s Counsel, NGOs, and respondents themselves (along, of course, with the ICE Chief Counsel unencumbered by the “DHS Enforcement Wackos“);
Also glaringly absent: any requirement that the DHS justify their requests to prioritize the dockets or exercise any responsible “prosecutorial discretion” to take “lower priority ” cases off the dockets;
A “no-brainer” in a functioning independent court system would be requiring DHS to remove one (or more) “low priority” cases for each case they wish the court to “prioritize” or otherwise move ahead of other, older pending cases.

The rapidly failing and unfair system needs aggressive oversight and monitoring — from Congress (read the House) and the Article III Courts!

Ultimately, it will continue its “death spiral” until both the EOIR bureaucracy and the Administration politicos who abuse it are permanently removed from the equation and an independent court, run by sitting judges with assistance from other court management professionals with meaningful public input is established. A strong, independent, efficient, unbiased U.S. Immigration Court will also help ICE carry out its law enforcement mission in a professional, legal, non-discriminatory, de-politicized, and humane manner, perhaps bringing enough rationality to the system to save that beleaguered agency from its critics.

PWS

11-18-18

“OUR GANG” OF RETIRED US IMMIGRATION JUDGES CONDEMNS SESSIONS’S DESTRUCTION OF DUE PROCESS IN US IMMIGRATION COURTS – Calls On US Chief Immigration Judge Marybeth Keller & Her Colleagues To Stand Up To Sessions & Enforce Due Process Over Mindless “Haste Makes Waste” Quotas!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/statement-of-former-immigration-judges-and-bia-members-opposing-ij-quotas-oct-1-2018

Oct 1 Statement of Former Immigration Judges and BIA Members Opposing IJ Quotas

As former Immigration Judges and BIA Members, we join our former colleagues in the NAIJ in decrying the imposition of much-criticized performance quotas on sitting Immigration Judges. Experience has demonstrated that it is futile to protest to the present Attorney General and his appointed EOIR Director, who have repeatedly demonstrated a callous disregard for due process, fundamental fairness, or judicial independence in the immigration courts. Jeff Sessions has repeatedly demonstrated his personal bias against both immigrants and judges. With the help of his EOIR Director, James McHenry, Sessions has taken a series of steps designed to strip the judges that he controls of all of the independence and powers that distinguish them as judges, and thus turn them into assembly-line workers. And because of Sessions’s disdain for immigrants, in his mind, those assembly lines should be issuing deportation orders, at faster speeds and in larger numbers. Never before, in our experience, has EOIR so directly and strongly undermined the decisional independence of Immigration Judges.

We therefore appeal at present to the leadership of the Office of the Chief Immigration Judge. Holding the title of “judges” themselves, the Chief, Deputy Chief, and Assistant Chief Immigration Judges are entrusted to protect the integrity of the Immigration Courts and the rights and independence of the Immigration Judges they oversee. At present, the OCIJ leadership has completely abandoned these responsibilities, and have instead become complicit with those seeking to undermine the system they are charged to protect. Now more than ever, our country needs leadership within EOIR with the courage and integrity to stand up for what is right. Courage, integrity, and impartiality from political considerations are hallmarks of good judges. It is time for EOIR’s leadership to live up to the trust placed in them and begin to display such characteristics.

Likewise, individual judges must continue to be guided by the need to do what is just and right, and not what is expedient. We have faith that if forced to choose between meeting randomly imposed quotas and doing justice, those on the bench will choose the latter.

We further call for Congress to take the long overdue but critically needed action of making immigration judges part of an independent, Article I court that is outside of the Executive Branch and free from abuse or pressure by politically-appointed officials.

Lastly, we call on the public to observe and insist on accountability for those who abuse the public trust placed in them to dispense justice to those most vulnerable members of our society.

Hon. Steven Abrams

Hon. Sarah M. Burr

Hon. Jeffrey S. Chase

Hon. George T. Chew

Hon. Bruce J. Einhorn

Hon. Cecelia Espenoza

Hon. Noel Ferris

Hon. John F. Gossart, Jr.

Hon. Rebecca Jamil

Hon. William P. Joyce

Hon. Edward Kandler

Hon. Carol A. King

Hon. Elizabeth A. Lamb

Hon. Margaret McManus

Hon. Charles Pazar

Hon. George Proctor

Hon. Lory D. Rosenberg

Hon. Susan Roy

Hon. Paul W. Schmidt

Hon. Polly A. Webber

How do you uphold your oath of office to “support and defend the Constitution of the United States against all enemies, foreign and domestic” when the chief “enemy of the Constitution” is Attorney General Jeff Sessions, your so-called “boss?”

PWS

10-01-18

INSIDE EOIR: How Sessions’s White Nationalist Anti-Due-Process Agenda Inspires Idiocy @ EOIR!

https://www.hoppocklawfirm.com/post-pereira-the-doj-chooses-harsh-ij-performance-metrics-over-compliance-with-supreme-court-mandate/

Post-Pereira, the DOJ Chooses Harsh IJ Performance Metrics Over Compliance With Supreme Court Mandate

by Matthew Hoppock | Sep 20, 2018 | Immigration, Immigration Practice | 1 comment

It now appears the Department of Justice has chosen not to comply with the Supreme Court’s decision in Pereira v. Sessions solely because doing so would conflict with the agency’s self-imposed deportation quotas it is placing on Immigration Judges, which go into effect October 1, 2018. The story unfolds in a series of e-mail messages obtained through FOIA and involve the interplay of two federal agencies tasked with separate responsibilities in the process of deciding whether to deport a person charged with being removable.

Much Ado About Scheduling Hearings

The basic issue raised by Pereirais that the immigration statute requires an immigration court charging document to list the date and time of the hearing. The Supreme Court said in Pereirathat a Notice to Appear (commonly known by its acronym: “NTA”) that doesn’t contain the date and time “is not a notice to appear” at all, which means arguably the proceedings were invalid and unlawful from the beginning.

Imagine having to go to traffic court even though the police officer wrote your ticket on a napkin, didn’t sign it, and it didn’t tell you when and where your court would be (or what you were being charged with). You or your attorney would march into court arguing this isn’t really a ticket, so why on earth am I even here? You would easily get the proceedings thrown out, because they were started improperly.

The difference here is that unlike traffic court, immigration court can result in lifetime expulsion from the United States, for individuals who may have a good reason to fear being harmed or killed if deported. And not showing up to court means an automatic order of removal.

Solving this problem would be simple. As the Supreme Court observed in Pereira:

As the Government concedes, ‘a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.’ Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before sending notices to appear.

If the system already exists, why weren’t they already using it?

The problem results from the decision by Congress in 2003 to separate of INS into two separate agencies: (1) the immigration courts (under the umbrella of the Department of Justice; and (2) the Department of Homeland Security, which is the prosecutor in immigration court cases.

The system for scheduling hearings (called “Interactive Scheduling System” or “ISS”) is owned by the Department of Justice, so it has sole decision-making power on whether the DHS, a separate agency, can access it and schedule hearings on its own. The DOJ ended that access at some point and has never restored it. Without access to that system, DHS has decided to fudge the date and time – issue NTAs with a line for the date and time but simply write “to be determined” on the line. And they have done that on most charging documents filed for the last 20 or so years.

This disconnect has resulted in a number of problems, the most serious of which is that immigrants don’t know when their hearing date is, so they miss the date and get ordered removed in in absentia (as happened to the immigrant in Pereira).

The Pereira decision left the DOJ with a pretty clear command from the Supreme Court: turn your system back on so DHS can schedule hearings. Most who practice in this area thought the Department of Justice would comply. Unfortunately, they haven’t.

Despite Pereira, EOIR Vacillates on Whether to Turn on ISS

Through a series of FOIA requests it has started to become clear what the agency decided to do after Pereira: nothing.

The Pereira decision was issued on June 21, 2018. Early on June 22, 2018 Rene Cervantes, the court administrator for the San Diego Immigration Court, e-mailed Rico Bartolomei Jr, the Assistant Chief Immigration Judge for that area, asking if the court should keep accepting the filing of NTAs by DHS without the date and time, despite what the Supreme court had just quite plainly said.

Bartolome responded that there had been no guidance from the DOJ, so for now they would keep accepting deficient NTAs for filing. By mid-afternoon on the 22nd, the discussion turned to whether the Department of Justice would “turn on ISS ASAP,” meaning enabling the DHS to access its scheduling system so it could file compliant notices to appear.

The answer was received that evening from Print Maggard, Deputy Chief Immigration Judge, that the decision of Director James McHenry was that “at this time we are not turning on ISS.”

By June 25, 2018 it looked like the DOJ had decided to turn the ISS system back on. In an e-mail Christopher Santoro, Principal Deputy Chief Immigration Judge, wrote that the only problem was timing, writing:

“[W]e were also told that, consistent with the benchmarks that went out with the new court performance measures, we need to get detained NTAs their first MC within 10 days of filing and non-detained NTAs their first MC within 90 days of filing. We also cannot be “full” – in other words, if DHS wants to file an NTA, there must be a slot for them to schedule it in within 10/90 days.”

Santoro was referring to the new Immigration Judge quotas going into effect on October 1, 2018. Since President Trump took office, the immigration court backlog has skyrocketed while case processing has slowed.

In response, the Attorney General has ordered draconian benchmarks which will require, among other things, that every judge in the country enter at least 700 orders per year. These measures are designed turn immigration courts into deportation machines – multiple Attorney General opinions have stripped judges of decision-making power while the agency orders more and more decisions to be made.

Relevant here, the new IJ quotas require detained hearings to be scheduled within 10 days of the prosecutor, DHS, filing the NTA with the court.

A June 25, 2018 e-mail from Mark Pasierb, chief clerk to the Immigration Court, explained that the ISS schedule system only has a certain number of slots for hearings with each judge each day. Thus, if the next ten days are “full,” allowing the DHS to access the ISS system will require it to pick a day that is beyond the DOJ’s self-imposed deportation quotas.

On June 27, 2018, Chief Immigration Judge Mary-Beth Keller sent out a timetable for when ISS would be turned on. She wrote that “effective immediately, NTAs filed at the window that do not specify the time and place of the hearing should be rejected.” She added that by July 2, 2018, the DOJ would turn the ISS system back on for non-detained cases and by July 16, 2018 for detained cases. However, that advice did not last long.

By July 11, 2018, the EOIR had decided officially to continue accepting non-compliant NTAs. Santoro e-mailed all court staff writing:

The Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs.

The DOJ Chooses Self-Imposed Deportation Quotas Over Complying With the Supreme Court.

What the June 25 Christopher Santoro e-mail reveals is that while the DOJ definitely has the power to turn on its scheduling system to comply with the Pereira decision, it does not want to, because it does not want that process (essentially ordered by the Supreme Court) to affect its new mega-deportation benchmarks that start on October 1, 2018.

The results are already being felt in Immigration Courts around the country. Without being able to access ISS, the prosecutors whose job it is to file these charging documents are just writing made-up dates or “dummy dates” on the charging documents. It’s hard to envision how the agency can get away with that; attorneys who file documents they know to be false (including having a pretend hearing date) are subject to discipline by their state bar.

More urgently, the people who receive these documents are showing up in court, sometimes within days, scheduling to travel across the country at times to attend a court hearing that was never even scheduled and is not going to take place.

Until the EOIR chooses to comply with the Supreme Court’s decision in Pereira (likely after parties are forced to litigate these issues in federal court) it is not clear there is any solution to this problem on the horizon.

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Four obvious “take-aways:”

Solving this problem isn’t “rocket science,” but it does exceed the collective abilities of the perpetuators of “Clown Court” (as the great Yogi Berra said, “Can’t anybody here play this game?”);
Sessions’s scofflaw, “haste makes waste,” attitude is now the “order of the day” at EOIR, which once purported to be a court system, not an ICE deportation office;
The DOJ & EOIR lack the competence to fairly and effectively administer a court system;
EOIR needs to go and be replaced with an independent court system outside the Executive’s control.

I will be fascinated to see how the DOJ attorneys defend this one before the Article IIIs with a “straight face” (or not).

Another day, another abuse of our justice system by Jeff Sessions and the “go alongs to get alongs” who are unwilling to stand up to him.

Many thanks to Matthew for shedding some much-needed light on the shady practices within EOIR & DOJ.

It would all be funny if people’s lives weren’t at stake.

PWS

09-21-18

INSIDE EOIR: FOIA RESPONSE DOCUMENTS THE BIZARRE FIXATION OF EOIR “MANAGEMENT” ON THE SCHEDULING OF CASTRO-TUM!

https://www.muckrock.com/foi/united-states-of-america-10/castro-tum-judicial-e-mails-55803/#file-212223

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Clink the above link to enter the weird, wacky world of EOIR in the “Age of Sessions.” Let’s remember, there is nothing whatsoever remarkable about the Castro-Tum case except that Sessions chose, for some reason, to make it a “cause celeb.” Indeed, nobody even knows if this dude is still in the US, is alive, or even existed in the first place.

It’s pretty easy to understand why the taxpayers are being ripped off and our justice system is in tatters under Jeff Sessions as he squanders our money on his White Nationalist agenda! Think what America might be like under a real Attorney General, instead of “Gonzo Apocalypto.” The real problems, Russian interference in our elections, smuggling, police misconduct, human trafficking, voter suppression, hate crimes against vulnerable groups, rampant gun violence, government corruption, and violence against women go largely unaddressed while Sessions chases after non-problems to carry through on his “wing nut, extremist, far-right, immigration restrictionist” agenda that made him an “outlier” even within the GOP during his days in the Senate.

I look forward to the day when Jeff Sessions is no longer Attorney General of the US. It might be the only thing I have in common with Donald Trump.

PWS

08-24-18

READ MY SPEECH TO THE ABA COMMISSION ON IMMIGRATION: “CARICATURE OF JUSTICE: Stop The Attack On Due Process, Fundamental Fairness, and Human Decency In Our Captive, Dysfunctional U.S. Immigration Courts!”

CARICATURE OF JUSTICE:

Stop The Attack On Due Process, Fundamental Fairness, and Human Decency In Our Captive, Dysfunctional U.S. Immigration Courts

ABA COMMISISON ON IMMIGRATION

WASHINGTON, D.C.

MAY 4, 2018

Thank you, Madam Moderator. I am pleased to be on this distinguished panel. And, I am particularly delighted that EOIR Director James McHenry has joined us.

Clearly, this isn’t about Director McHenry, who by my calculations was still in law school when the wheels began coming off the EOIR wagon. Also, as a former Senior Executive in past Administrations of both parties, I’m familiar with being sent out to “defend the party line” which sometimes proved to be “mission impossible.”

For me, no more disclaimers, no more bureaucratic BS, no more sugar coating, no more “party lines.” I’m going to “tell it like it is” and what you need to do to reestablish Due Processand fundamental fairnessas the only acceptable missionof the United States Immigration Courts.

It’s still early in the morning, but as Toby Keith would say, “It’s me, baby, with your wakeup call!”

Nobody, not even Director McHenry, can fix thissystem while it remains under the control of the DOJ. The support, meaningful participation, and ideas of the judges and staff who work within it and the public,particularly the migrants and their lawyers, who rely on it, is absolutely essential.

But, the current powers that be at the DOJ have effectively excludedthe real stakeholdersfrom the process. Worse,they have blamed the victims,you, the stakeholders, for the very problems created by political meddling at the DOJ. We’re on a path “designed and destined for failure.”

The decline of the Due Process mission at EOIR spans several Administrations. But, recently, it has accelerated into freefallas the backlog largely created by “Aimless Docket Reshuffling” (“ADR”) by political officials at the DOJ over the past several Administrations and chronic understaffing have stripped U.S. Immigration Judges of all effective control over their dockets, made them appear feckless, and undermined public confidence in the fairness, independence, and commitment to individual Due Process of our Immigration Courts.

The Due Process Clause of the Fifth Amendment is there for one, and only one reason. To protect all individuals in the United States, not just citizens, from abuses by the Federal Government. In simple terms, it protects individuals appearing in Immigration Court from overstepping and overzealous enforcement actions by the DHS. It is notthere to insure either maximum removals by the DHS or satisfaction of all DHS enforcement goals.

Nor is it there to “send messages” – other than the message that individuals arriving in the United States regardless of statuswill be treated fairly and humanely. It serves solely to protect the rights of the individual, and definitelynotto fulfill the political agenda of any particular Administration.

The “EOIR vision” which a group of us in Senior Management developed under the late Director Kevin Rooney was to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that noble vision is now dead and buried.

In fact, when I mentioned it to a recently hired EOIR attorney just prior to my retirement in 2016, she looked at me as if I were from outer space. Indeed, nobody in his or her right mind would seriously suggestthat today’s Immigration Courts are on track to meet that vision or that it motivates the actions of today’s DOJ.

No, instead, the Department of Justice’s ever-changing priorities, Aimless Docket Reshuffling, and morbid fascinationwith increased immigration detention as a means of deterrence have turned our Immigration Court system back into a tool of DHS enforcement. Obviously, it is long past time for an independentU.S. Immigration Court to be established outside the Executive Branch.

I work with a group of retired colleagues on various Amicus Briefs trying to defend and restore the concept of Due Process in Immigration Court. I doubt that it’s what any of us thought we’d be doing in retirement. As one of those colleagues recently said, it’s truly heartbreaking for those of us who devoted large segments of our professional lives to improving Due Process and fairness in the Immigration Courts to see what has become of those concepts and how they are being mocked and trashed on a daily basis in our Immigration Court system.

Those of us watching from retirement treat each day’s EOIR news with a mixture of disbelief, disappointment, anger, and total outrage. But, it drives and inspires us to actionto halt and reverse the travesty of justice now taking place in our US Immigration Courts.

I am one of the very few living participants in the 1983 creation of EOIR when it was spun off from the “legacy INS” to create judicial independence and better court administration during the Reagan Administration.

And, I can assure you that the Reagan Administration was not filled with “knee jerk liberal.” No, those were tough, but fair minded and practical, law enforcement officials. The other “survivors” who come to mind are former Director and BIA Judge Tony Moscato and then Associate Attorney General Rudy Giuliani, whom I understand is “otherwise occupied” these days.

Sadly, although EOIR appeared to have prospered for a period of time after its creation, it has now regressedto essentially the same problematic state it was in prior to 1983: lack of actual and perceived judicial independence; a weak appellate board that fails to function as an independent judiciary promoting due process; an unwieldy structure, poor administrative support, and outdated technology; a glacial one-sided judicial selection process that effectively has eliminated private sector attorneys with actual experience in representing immigrants and asylum applicants in court from the 21^stCentury Immigration Judiciary; and an overwhelming backlog with no end in sight.

Only now, the backlog is multiples of what it was back in 1983, nearing an astounding 700,000 cases! And additional problemshave arisen, including grotesque overuse of detention courts in obscure, inappropriate locations to discourage representation and inhibit individuals from fully exercising their legal rights; a lack of pro bono and low bono attorney resources; and new unprecedented levelsof open disdain and disrespect by Administration officials outside EOIR, at the DOJ, for the two groups that are keeping Due Process afloat in the Immigration Courts: private attorneys, particularly those of you who are pro bono and low bono attorneys representing vulnerable asylum applicants and the Immigration Judgesthemselves, who are demeaned by arrogant, ignorant officials in the DOJ who couldn’t do an Immigration Judge’s job if their lives depended on it.

But, wait, and I can’t make this stuff up, folks, it gets even worse! According to recent news reports, the DOJ is actually looking for ways to artificially “jack up” the backlog to over 1,000,000 cases – you heard me, one million cases– almost overnight. They can do this by taking cases that were properly “administratively closed” and removed from the Courts’ already overwhelmed “active dockets” and adding them to the backlog.

Administratively closed cases involve individuals who probably never should have been in proceedings in the first place – DACA recipients, TPS recipients, those waiting in line for U visa numbers, potential legal immigrants with applications pending at USCIS, and long-time law-abiding residents who work, pay taxes, are integrated into our communities, have family equities in the United States, and were therefore quite properly found to be low to non-existent “enforcement priorities” by the last Administration.

Some of you in the audience might be in one of these groups. They are your neighbors, friends, fellow-students, co-workers, fellow worshippers, employees, workmen, child care workers, and home care professionals., and other essential members of our local communities.

And you can bet, that rather than taking responsibility for this unnecessary cruelty, waste, fraud, and abuse of our court system, the DOJ will attempt to falsely shift blame to Immigration Judges and private attorneys like those of you in the audience who are engaged in the thankless job of defending migrants in the toxic atmosphere intentionally created by this Administration and its antics.

Expose this scam! Don’t let the DOJ get away with this type of dishonest and outrageous conduct aimed at destroying our Immigration Court system while disingenuously directing the blame elsewhere.

Basically, respondents’ attorneys and Immigration Judges have been reduced to the role of “legalgerbilson an ever faster moving treadmill” governed by the unrestrained whims and indefensible, inhumane “terror creating” so-called “strategies” of the DHS enforcement authorities. And, instead of supportingour Immigration Judges in their exercise of judicial independence and unbiased decision-making and nurturing and enhancing the role of the private attorneys, the DOJ, inexcusably, during this Administration has undercut them in every possible way.

For the last 16 years politicians of both parties have largely stood by and watched the unfolding Due Process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

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

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration, at levels over which Director McHenry has no realistic control, will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

Our Constitution and our protection laws, which adhere to international treaties that we have signed, are not“loopholes.” Treating migrants fairly, humanely, and in accordance with the rule of law does notshow “weakness.” It shows our strengthas a nation.

There is a bogus narrative being spread by this Administration that refugees who are fleeing for their lives from dangerous situations in the Northern Triangle, that we had a hand in creating, are mere “economic migrants” not deserving of our protection. Untrue!

Migrants should be given a reasonable chance to get lawyers; an opportunity to prepare, document, and present their cases in a non-coercive setting; access to a truly independent, unbiased judge who is committed to guaranteeing individual rights and the fair application of U.S. protection laws in the generous spirit of the Supreme Court’s decision in Cardoza-Fonsecaand the BIA’s oft cited but seldom followed precedent in Matter of Mogharrabi; and a fair decision, preferably in writing, without being placed under duress by unnecessary, wasteful, inhumane detention and separation of families. This Court System should not be run by a Cabinet Member who has already announced his predetermination of the preferred outcomes and his total disdain for migrants and their lawful representatives.

Once fully documented, many of these cases probably could be granted either as asylum cases or as withholding of removal cases under the CAT in short hearings or by stipulation if the law were applied in a fair and unbiased manner. Those who don’t qualify for protection after a fair and impartial adjudication, and a chance to appeal administratively and to the Article III Courts, can be returned under the law.

This Administration and particularly this DOJ depend on individuals notbeing competently represented and therefore not being able to assert their rights to either legal status or fair treatment. But, there are still real,truly independent Article III Courts out there that can intervene and put an end to this “deportation railroad” and its trampling on our Constitution, our laws, our values, and our dignity as human beings. For, friends, if we are unwilling to stand up against tyranny and protect the legal and Constitutional rights of the most vulnerable among us, like asylum seekers, then our ownrights and liberties as Americans mean nothing!

I urge each of youin this audience to join the “New Due Process Army” and stand upfor “truth, justice, and the American way” in our failing, misused, and politically abused United States Immigration Courts and to continue the fight, for years or decades if necessary, until this systemfinally is forced to deliveron its noble but unfulfilled promise of “being the world’s best tribunals, guaranteeing fairness and due process for all.” Harm to one is harm to all! Due process forever!

Thank you, Madam Moderator, I yield back my time.

(04-04-18)

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ADMISSION: Notwithstanding the last sentence, I went “overtime,” so there actually was no time to “yield back.”

PWS

05-04-18

LORELEI LAIRD @ ABA JOURNAL: Sessions’s Quotas Threaten Due Process & Judicial Independence –“And it’s part of an ongoing effort, I think, to diminish the judges to more or less the status of immigration adjudicators rather than independent judges.” (PWS)

http://www.abajournal.com/news/article/justice_department_imposes_quotas_on_immigration_judges_provoking_independe

Lorelei Laird reports for the ABA Journal:

. . . .

The news was not welcomed by the National Association of Immigration Judges. Judge A. Ashley Tabaddor, the current president of the union, says the quotas are “an egregious example of the conflict of interests of having the immigration court in a law enforcement agency.” A quota system invites the possibility that judges will make decisions out of concern about keeping their jobs, she says, rather than making what they think is the legally correct decision. And even if they don’t, she points out, respondents in immigration court may argue that they do.

“To us, it means you have compromised the integrity of the court,” says Tabaddor, who is a sitting immigration judge in Los Angeles but speaking in her capacity as NAIJ’s president. “You have created a built-in appeal with every case. You are going to now make the backlog even more. You’re going to increase the litigation, and you are introducing an external factor into what is supposed to be a sacred place.”

Retired immigration judge Paul Wickham Schmidt adds that the new metrics are unworkable. Reversal on appeal is influenced by factors beyond the judge’s control, he says, including appeals that DHS attorneys file on behalf of the government and shifting precedents in higher courts.

McHenry’s email said that “using metrics to evaluate performance is neither novel nor unique to EOIR.” Tabaddor disagrees. Federal administrative law court systems may have goals to aspire to, she says, but those judges are, by law, exempt from performance evaluations. Nor have the immigration judges themselves been subject to numeric quotas in the past.

“No other administration before this has ever tried to impose a performance measure that [had] this type of metrics, because they recognized that immediately, you are encroaching on judicial independence,” she says.

Schmidt agrees. “No real judge operates under these kinds of constraints and directives, so it’s totally inappropriate,” says Schmidt, who has also served on the Board of Immigration Appeals. “And it’s part of an ongoing effort, I think, to diminish the judges to more or less the status of immigration adjudicators rather than independent judges.”

Tabaddor adds that the Justice Department forced the union last year to drop a provision forbidding numbers-based performance evaluations from its contract negotiations. This was not a sign that NAIJ agrees with the quotas, she says, but rather that the union’s hands are tied under laws that apply to federal employees.

The memo continues a trend of Justice Department pressure on immigration judges to resolve cases. Attorney General Jeff Sessions, who has the power to refer immigration law cases to himself, is currently taking comment on whether judges should have the power to end cases without a decision. (The ABA has said they should.)

Last summer, the chief immigration judge discouraged judges from granting postponements. Sessions did the same in a December memo that referenced the backlog as a reason to discourage “unwarranted delays and delayed decision making.”

Sessions has power over the immigration courts because they are a branch of the DOJ, not an independent court system like Article III courts. Independence has long been on the judges’ union’s wish list, and it was one topic when HBO’s Last Week Tonight with John Oliverexplored some problems with immigration courts on Sunday.

As the ABA Journal reported in 2017, the immigration courts have had a backlog of cases for most of the past decade, fueled by more investment in enforcement than in adjudication. Schmidt claims that unrealistic laws and politically motivated meddling in dockets also contribute to the backlog. As of the end of February, 684,583 cases were pending, according to Syracuse University’s Transactional Records Access Clearinghouse, which gets its data from Freedom of Information Act requests.

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

Read Lorelei’s full article at the link.

Clearly:

Today’s Immigration Courts are not “real” courts in the sense that they are neither independent nor capable of truly unbiased decision-making given the clear bias against immigrants of all types expressed by Sessions and other officials of the Trump administration who ultimately control all Immigration Court decisions.
The Immigration Courts have become a mere “facade of Due Process and fairness.” Consequently, Federal Courts should stop giving so-called “Chevron deference” to Immigration Court decisions.
The DOJ falsely claimed that the NAIJ “agreed” to these “performance metrics” (although as noted by Judge Tabaddor, the NAIJ might have lacked a legal basis to oppose them).
The current Immigration Court system is every bit as bad as John Oliver’s TV parody, if not actually worse.
America needs an independent Article I Immigration Court. If Congress will not do its duty to create one, it will be up to the Federal Courts to step in and put an end to this travesty of justice by requiring true Due Process and unbiased decision-making be provided to those whose very lives depend on fairness from the Immigration Courts.

PWS

04-04-18

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