LEE SUNDAY EVANS @ WATERWELL: “The Power of Transcripts”— “It wasn’t hard to recognize the power of each individual story, and the patterns revealed when reading two, three, ten testimonies were a disturbing depiction of how the protections outlined in the Flores Settlement Agreement (FSA) were being violated.”

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges

FYI, an essay by Waterwell Artistic Director Lee Sunday Evans on the company’s immigration law related work. Best, Jeff

https://howlround.com/power-transcripts

The Power of Transcripts

In July 2019, I sat down with a few people at the Immigrants’ Rights Clinic at Columbia Law School to discuss the possibility of bringing a performance of The Courtroom: a re-enactment of one woman’s deportation proceedings—a production by the New York City–based theatre company Waterwell, where I’m artistic director—to their campus. Fast forward thirty minutes and Elora Mukherjee—the director of the clinic, an immigration lawyer and professor—had our attention focused in a different direction.

Elora was describing her work as a monitor for the Flores Settlement Agreement—a court settlement that sets the time limit and conditions under which children can be held in immigration detention—over the past twelve years; two weeks earlier, she had provided testimony in front of the House Committee on Oversight and Reform about the deplorable conditions she and her colleagues had witnessed in two immigration detention facilities in Clint and Ursula, Texas. Then, Elora politely declined to bring The Courtroom to Columbia Law School—at least for the time being—and asked if Waterwell would consider making a new project using first-person testimonies of the children and young parents she had met at the border.

I’ll start at the beginning of our company’s engagement with immigration and then describe The Flores Exhibits—the project Waterwell created in response to this conversation with Elora Mukherjee.

The Courtroom. Photo by Miguel Amortegui

The Courtroom

In the summer of 2018, Arian Moayed—an actor, writer, director, and co-founder of Waterwell—was watching, along with the rest of the United States, as an increasingly heated debate about immigration enveloped our country. Family separations at the border and the uproar that followed flooded the news, along with stories about how increasingly rapid deportation proceedings were compromising due process. Arian was born in Iran, immigrated here when he was seven years old, and became a citizen when he was twenty-six. The stories of how the United States was treating immigrants hit him personally.

He thought: How can Waterwell respond? What can we do to add something meaningful to this conversation?

Then a new question crystallized in his mind: We hear about them in the media, but what does a deportation proceeding in court actually look like? How do deportation proceedings work?

While reaching out to a handful of immigration lawyers and asking them to share transcripts of deportation proceedings, Arian met Richard Hanus, an immigration lawyer in Chicago, who has been practicing for over twenty-five years. Richard shared transcripts of one case he thought might be of interest, and Arian read it right away. The case was powerful.

The transcripts gave the story a certain kind of objectivity, an unvarnished truthfulness about immigration.

A few months later, I started as the newly appointed artistic director of Waterwell. Arian and I dove into these transcripts, did a rough edit of them, then another, then another, then an intense three-day text workshop with incredible actors, and came out with a script that had a three-act structure, with all the dialogue taken entirely from the court transcripts.

We asked Jeffrey S. Chase, a former immigration judge and widely respected leader in the field, to help us understand legal terms in the transcripts and to advise us on how to make most accurate representation of immigration court. He made a terrific recommendation: Go watch some proceedings.

We met at 26 Federal Plaza, went through the metal detectors, and headed up to the floors where proceedings take place. The courtrooms are small, with drop ceilings. There are no witness boxes and there is often no lawyer representing the immigrant—if you are an immigrant required to appear in immigration court, you don’t have automatic access to legal representation. This was not news to Arian, but for me, as a person born in the United States who had never interacted with the immigration system, I found it surprising and unsettling. Immigrants represent themselves, or pay not-unsubstantial sums to hire a lawyer. Non-profits and law school clinics step in to fill this gap, but they do not—and cannot—reach everyone.

Watching court proceedings—the combination of banal procedural details and life-and-death stakes—fundamentally shaped our thinking. What we witnessed was quiet, tense, tedious, disorienting. We knew that, for our performance, we’d have to risk recreating those very dynamics. It wouldn’t be quite a play but a reenactment. As we created The Courtroom, we focused on the small, regular mistakes shown in the transcripts—awkward phrasing of a thought, the quick mistaken use of a word—embracing them as interesting windows into how people function in court when they are prepared but don’t have a script, and set out to find real courtrooms to perform in. We created the original staging in our most hallowed venue: a grand courtroom on the seventeenth floor of the Thurgood Marshall United States Courthouse, the seat of the Second Circuit Court of Appeals. Though this prestigious courtroom was very different from small, plain immigration courts, the architecture taught us a lot about how courtrooms work.

The Courtroom. Photo by Maria Baranova.

The transcripts we used to create the script were from the case of Elizabeth Keathley, an immigrant from the Philippines who came to the United States on a K3 visa after she married her husband, who was a United States citizen. After inadvertently registering to vote at the DMV in Bloomington, Illinois, receiving a voter registration card in the mail, and voting, Elizabeth had to appear in court for deportation hearings. She lost the first case, but her appeal was heard in the Seventh Circuit, where the federal judges ruled in her favor.

The first performances were terrifying. We had no idea if the piece would capture people’s interest and hold their attention. But we put our faith in how this case encapsulated the age-old adage about the personal and the political. Through this story about a married couple in the early stages of building their family, who had made one honest mistake that put the wife in danger of being deported, the audience got to see a portrait of our nation’s legal system that exposed its catastrophic flaws and showed its singular, profound potential.

We were floored by audiences’ responses to the performances and started to understand the real power of the transcripts.

The transcripts gave the story a certain kind of objectivity, an unvarnished truthfulness about immigration—a polarizing issue that seems relentlessly distorted when we encounter it in the media, something that is all the more painful because it is central to our country’s identity. Ali Noorani, director of the National Immigration Forum, put it perfectly in his book, There Goes the Neighborhood: “Immigration gets at the core of who we are, and who we want to be, as a country.”

The Courtroom gave audiences an opportunity to get closer to the immigration legal system’s inner workings. Not to be told what to think, not to be told again how bad things are, but to get closer to something true and real. It was our realization about the power of unaltered transcripts that guided us when we started to think about what to make in response to our conversation with Elora Mukherjee.

The Flores Exhibits

We told Elora we would think deeply about how we could make a meaningful project, and she said she’d send us the testimonies. We took the conversation with her very seriously, feeling a sincere responsibility as artists to take up the need she put before us but having very little idea what we could create in response.

I printed out everything Elora sent me and sat down to read the sixty-nine testimonies. I thought: Again, here is that combination of procedural banality alongside life-and-death stakes. It unnerved me. The project needed to capture that specific disorienting, haunting aspect of the testimonies. It wasn’t hard to recognize the power of each individual story, and the patterns revealed when reading two, three, ten testimonies were a disturbing depiction of how the protections outlined in the Flores Settlement Agreement (FSA) were being violated.

Here’s a quick history of the FSA and why it’s important: In 1985, a fifteen-year-old Salvadoran girl named Jenny Flores was held in substandard conditions in immigration detention for a prolonged period of time. Based on her experience, a number of legal organizations filed a lawsuit against the government, which in 1997 resulted in the Flores Settlement Agreement. This set standards for the treatment of unaccompanied children (anyone under the age of eighteen) while they are in detention, including requiring the government to provide reasonable standards of care as well as safe and sanitary living conditions, and to release minors without any unnecessary delay, setting a cap of twenty days.

It is often impossible for people held in detention to socially distance, and there are many reports that there is no access to soap or sanitizer in numerous facilities.

The sixty-nine testimonies that Elora gave us were exhibits filed by the National Youth Law Center in a temporary restraining order requesting emergency relief for minors held in Customs and Border Patrol facilities; the firsthand accounts demonstrated violations of the Flores Settlement. Wrenching news reports about children being held in detention facilities for extended period of times—sometimes in cages—without access to basic hygiene supplies and adequate nutrition or sleep were based on these lawyers’ experiences and these testimonies.

What could we create to respond? We wanted people to experience the testimonies in full. We wanted people outside of New York City, where we’re based, to hear them. We wanted to involve actors but also all the incredible people we’d met during the process of creating The Courtroom who were not actors: lawyers, former judges, immigrant-rights advocates, immigrants who are not in the arts, and playwrights, designers, and other artists invested in this issue.

We decided not to make a piece of theatre. We decided to make a series of videos.

The testimonies would be read in full, without any textual or cinematic editing. We would ask readers from different sectors of society to participate with the hope that it would demonstrate—in a quiet, un-didactic way—a wide-ranging solidarity and investment in the issue. Each reader would sit at a simple wooden table with a glass of clean water, which is often described in the testimonies as being hard for immigrants to get in detention.

The Flores Exhibits. Photo courtesy of Andrew Kluger.

We wanted the readers to be good storytellers but I directed them not to take on any “character” they gleaned from the text or embody the experience described by the person who gave the testimony to the lawyers. We said the goal was for people to hear the words as clearly as possible—without emphasis, without dramatization.

To date, we have filmed forty-three out of the sixty-nine testimonies and are working to complete the filming of the remaining ones. This coming fall, we hope to instigate and facilitate live screenings of The Flores Exhibits around the country as a way to bolster support, organizing, and advocacy for the protections outlined in the Flores Settlement Agreement to be upheld and improved.

Taking Action

Right now, there are efforts around the country to decarcerate as many people held in jails, prisons, and detention facilities as possible due to the amplified dangers posed by COVID-19 to anyone in this kind of environment. It is often impossible for people held in detention to socially distance, and there are many reports that there is no access to soap or sanitizer in numerous facilities.

Using excerpts from videos in The Flores Exhibits, we released this ninety-second video connecting firsthand testimonies of people held in detention in June 2019 to the urgent need to get people out of detention during the COVID-19 pandemic.

If you are interested in getting involved, here are a few ways to start:

Find out where there are detention facilities near you: local jails and prisons often have contracts with ICE, and there are dedicated ICE facilities, often in rural areas. Once you know where those facilities are in your state, follow them in the news and connect with and support local organizations and elected representatives who advocate for the release of immigrants, proper living conditions, and access to healthcare in detention. (For a full explanation of government agencies involved in immigration detention, watch this video.)
Join and amplify the efforts of Detention Watch Network, a coalition of eight hundred organizations around the country to get urgent messages to governors, ICE directors, sheriffs, and other represented officials to release people from detention during COVID-19.
Join New Sanctuary’s efforts to advocate to free unaccompanied minors held in immigration detention.
Join Freedom for Immigrants to get involved in your area.
Read the Southern Border Community Coalition’s New Border Vision so you can be part of their proactive movement to transform culture, values, and policy at our southern border.

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Think about the grotesque perversions of justice going on in the US today! Desperate kids seeking protection and entitled to legal process being illegally held in detention as unlawful punishment and coercion in violation of U.S. Court orders.

Some of the criminals who masterminded and carried out these illegal, unethical, and totally immoral schemes not only remain free but, outrageously, are on our public payroll: Thugs like Stephen Miller, Chad Wolf, Billy Barr, and Ken Cuccinelli. “Cooch Cooch” actually continues to spew his vile propaganda after being held by a Federal Judge to have been illegally appointed.

Another notorious human rights criminal and child abuser, Jeff “Gonzo Apocalypto” Sessions, remains at large and is outrageously running for return to the Senate, a position he already had abused and misused to promote a White Nationalist racist agenda in the past.

Still others like “Big Mac With Lies” and Kirstjen Nielsen are also at large, disingenuously trying to “reinvent” themselves by having the audacity to tout their past criminal activities, public lies, and human rights abuses as “senior executive experience.”

As these transcripts show, it’s a “world turned upside down” under the vile Trump kakistocracy. But, we all have a chance to redeem our nation in November by voting the kakistocracy out and re-establishing honesty, human values, mutual respect, cooperation, our Constitution, and the rule of law as the hallmarks of America.

On the other hand, the despicable performance by those public officials who abandoned their legal and moral obligations to humanity also shines a light on the many unsung heroes of our time: folks like Professor Elora Mukherjee, Lee Sunday Evans, Arian Moayed, Judge Jeffrey Chase, and the many other members of the New Due Process Army throughout the U.S. Unlike many of our public officials, they are standing up for Due Process and the rule of law in the face of seemingly never-ending tyranny, racism, xenophobia, and hate-mongering from the Trump regime.

Due Process Forever! The Regime’s Continuing Child Abuse ☠️☠️ Never!

PWS

04-26-20

EOIR’S LATEST RIPOFF: As “Justice” In Immigration Court Becomes A “Clown Show,” The Price Of A Ticket to “The Big Top” Will Rise By Nearly 1000%!🤡🤡

https://www.axios.com/trump-immigrant-fee-fight-deportation-02cfcff7-147b-479f-88e8-6eaa4dbc29ba.html

Steph W. Kight — Steff W. Kight
Politics Reporter
AXIOS

Stef W. Kight reports for AXIOS:

The Justice Department wants to dramatically increase fees for immigrants trying to fight deportation— including nearly $1,000 to appeal an immigration judge decision, according to a proposed Executive Office for Immigration Review rule.

Between the lines: It currently costs around $100 for immigrants to begin to legally fight deportation orders. If implemented, the new rule would raise fees to at least $305 and as much as $975, depending on the appeal.

By the numbers: In the rule, the administration argues that the discrepancy between fees collected and the processing costs “has become more of a burden on the immigration adjudication system as aliens overall have begun filing more of these fee-based forms and motions.”

They estimate that immigrants appealing deportation orders given by an immigration judge cost taxpayers $27.6 million in FY 2018. The rule proposes that fees be raised so that immigrants cover the total cost, which is how the $975 fee came about.

What they’re saying: When hearings are set two or three years in advance, immigrants have time to save for the fees. But with many new immigration judges and a rise in fast-track cases, that may no longer possible, immigration lawyer Jeffrey Chase, a former judge and senior legal advisor at the Board of Immigration Appeals, told Axios

Former immigration judge Paul Schmidt, who retired in 2016, told Axios in an email the proposed rule is “outrageous.”
He said correcting errors through the appeals process is one of the most important government functions. “That’s particularly true when the public segment ‘served’ is generally limited income individuals and getting results correct could be ‘life determining.’”

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Here’s my complete commentary on EOIR’s latest shady maneuver:

In a single word, “outrageous.”

As set forth in the notice, EOIR is an “appropriated agency.” It was never supposed to recoup its costs, nor does it need to.

Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”

Applications, as opposed to “appeals,” also serve a critical public function in insuring that those who qualify under our laws to remain in the U.S. are permitted to do so. That’s a “winner” for everyone.

The astronomical proposed fee increase is particularly absurd in the current context. EOIR is actually cutting corners and has reduced the quality and accuracy of its work product. Why should the public pay nearly 10X more for a rapidly deteriorating product?

Moreover, given the “captive” nature of the courts and the illegal and unethical interference in their operations by the Attorney General and other political operatives at the DOJ, the only chance at fair and impartial “justice” for many individuals is to petition the Article III Courts. That requires going through EOIR, even when EOIR’s biased and unfair adjudication procedures make the results inevitable. It’s called “required exhaustion of administrative remedies.”

Sure, folks can continue to seek “fee waivers.” But, I’ll bet that the procedures for those will become more bureaucratic and unduly restrictive, and that many will be improperly denied. How does someone with no money appeal a wrongful denial of a fee waiver? He or she can’t. They are denied justice!

That gets us to the real point here. In an era and an area of the law where “access to justice” is everything, this is another blatant attempt by the White Nationalist regime to restrict access to justice. In real world terms, the claimed cost savings (and we should never accept the regime’s often flawed and manipulated calculations) here are peanuts compared with the human interests at stake. The regime wastes more than this every week on unneeded and unauthorized walls that blow down in the wind and overpriced golf security for Trump.

As I said at the beginning, it’s outrageous.

PWS

02-28-20

JUST “OFF BROADWAY,” BUT REACHING THE HEARTS AND MINDS OF AMERICA – Waterwell’s “The Courtroom” & “The Flores Exhibits” Paint a Chilling Picture Of Justice That All Americans Should See! — Retired Immigration Judges & Pro Bono Advocates Join “A-List” Actors In Giving Human Voices To The Dispossessed Struggling For Their Lives In A Badly Broken & Dysfunctional System That All too Often Leaves Humanity Behind As It Mindlessly Grinds Down Lives!

Hon. Robert D. Weisel
Retired U.S. Immigration Judge
Member, Round Table of Retired Immigration Judges

Hon. Elizabeth Lamb
Retired U.S. Immigration Judge
Member, Round Table of Retired Immigration Judges

Elora Mukherjee
“American Hero”
Clinical Professor of Law & Director of the Immigrants’ Rights Clinic
Columbia Law School

Here’s a recent anecdote from my good friend, colleague, and leader of our Round Table of Former Immigration Judges, Hon. Jeffrey S. Chase:

More theater news! On Monday, the director of The Courtroom emailed me in Rome to ask if I would perform at a special performance at the Lucille Lortel Theater in NYC on Wednesday night, in which three Tony winners were making guest appearances. Curtain was at 7 pm; our flight was scheduled to land at JFK at 4 pm. Just as we were about to board the flight, a delay was announced due to mechanical problems. We took off an hour and a half late, and were told we would be further slowed by strong headwinds. As I was worrying about making it in time, it occurred to me what a charmed life I am living in which worrying whether I will return from a 10-day vacation in Italy in time to act with three Tony Award winners constitutes a problem.

Landing at almost 6 pm, we cleared customs and jumped in a taxi; we arrived at the theater about 15 minutes into the play. I had emailed my daughter in NY asking her to bring one of her fiancé’s ties and a printed copy of my script (since we write out own remarks) to the theater. I performed my part; my wife and daughter each got to meet their theater idols; and my daughter and I attended the after-party in the West Village. I had been awake since 1 am NYC time, and got home at 11:30 pm.

At the party, I was talking with Arian Moayed (Stewy in “Succession” on HBO) and Kelli O’Hara (Tony Award winner who played the lead on Broadway in both South Pacific and The King and I). Kelli had played the IJ in Act I, and said that she had been in the audience at one of the very early performances, at which our group’s Betty Lamb had performed. Both Kelli and Arian said how powerful and impressive Betty’s performance had been!

I’m hoping others from this group get the opportunity to perform in the future. The Chicago IJs in our group probably know the real-life lawyer in the case, Richard Hanus, and you certainly know the real-life IJ, Craig Zerbe. The ICE attorney was Gregory Guckenberger. Do the last two realize they are being portrayed by actors of such caliber in a play that made the New York Times Best Theater of 2019 list?

Click on the link below to listen to the 37 minute podcast:

https://broadwaypodcastnetwork.com/the-backdrop/episode-2-waterwells-the-courtroom/

Episode 2: Waterwell’s THE COURTROOM

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EPISODE 2: WATERWELL’S THE COURTROOM

IN THIS EPISODE

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Waterwell Theater Company’s latest play, The Courtroom, has no playwright. Or even a theater. But as Waterwell founder (from HBO’s “Succession” and Tony nominee) Arian Moayed and Artistic Director Lee Sunday Evans tell Kevin, that’s the point. They found their inspiration — and their script — in the actual language of a deportation trial. And as immigrant rights advocate/attorney Elora Mukherjee reveals, they also found themselves pulled to ground zero of today’s drama: all the way to the border.

Resources

The Courtroom returns for monthly performances at civic venues in NYC through November 2020. For information and tickets visit https://waterwell.org/.

View The Flores Exhibits at https://flores-exhibits.org/.

For other resources and to get involved, visit https://www.newsanctuarynyc.org/.

Jeffrey S. Chase, a former immigration judge, was the legal advisor for The Courtroom. Read his article “The Immigration Court: Issues and Solutions” here.

Follow guest Arian Moayed on Twitter at @arianmoayed.

Credits

The Backdrop is hosted by Kevin Bleyer and produced by Nella Vera.

The Backdrop artwork is by Philip Romano.

Follow Kevin Bleyer and Nella Vera on Twitter: @kevinbleyer / @spinstripes

VISIT THIS PODCAST’S PAGE

ABOUT BPN

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Congrats and thanks to all involved. This should be “required theater” at all Federal Judicial Conferences.

PWS

02-15-20

THE LATEST FROM HON. JEFFREY S. CHASE: Rethinking Chevron In The Era Of Weaponized Immigration Courts Acting As Adjuncts Of DHS Enforcement, & Further Adventures Of The Round Table!

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

jeffreyschase.com

In the present climate, immigration lawyers must continue to present judges with creative, intelligent arguments; to present the public with proof of what is wrong with the current system; and to present those in power to change what is wrong with solutions.

I’ve added posts that address each these points. First, I discuss some recent articles in which scholars raise creative legal arguments as to the limits of Chevron deference in appeals to the federal courts. I have also posted a statement of our Round Table of Former Immigration Judges to the House Judiciary Committee, Immigration and Citizenship subcommittee that was made part of the record of its hearing last Wednesday on solutions to the present crisis in the immigration courts.

I have also posted the group statement of our Round Table on the one-year anniversary of the MPP, or “Remain in Mexico” policy that was drafted by former Immigration Judge Ilyce Shugall, who has volunteered her time to travel to Texas to observe MPP hearings that is meant to raise awareness of the need to end this awful program.

SUN, FEB 02

Rethinking Chevron?

The powers of the Attorney General and the Board of Immigration Appeals to influence law by issuing binding precedent decisions is greatly enhanced by what is known as Chevron deference. The principl

Read More

TUE, JAN 28

Statement to the House Judiciary Committee on Immigration Court Reform

On Wednesday, January 29 at 9:30 am, the House Judiciary Committee, Immigration and Citizenship Subcommittee is holding a hearing entitled “Courts in Crisis: The State of Judicial Independence and

Read More

TUE, JAN 28

Statement on the One Year Anniversary of the MPP Program

January 28, 2020

The Round Table of Former Immigration Judges is comprised of former immigration judges who are dedicated to due process in the immigration system. As former immigration judges, we

Read More

jeffreyschase.com, 500 4th Ave., Brooklyn, NY, USA

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Another article that ties in well with a critical re-examination of Chevron in immigration cases is Tess Hellgren’s recent wonderful short article: “Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever.” I recently republished it here: https://immigrationcourtside.com/2020/02/01/tess-hellgren-innovation-law-lab-when-it-comes-to-the-captive-bia-weaponized-immigration-courts-the-article-iiis-need-to-put-away-the-rubber-stamp-restore-integrity-to-the-law-fac/

As we see the results of the regime’s Article III-enabled and encouraged nativist, racist policies like an expanded “Travel Ban” that now includes a large portion of Africa, new non-legislative restrictions on legal immigration, unmitigated expansion of the deadly “New American Gulag,” intentional mistreatment of children, and the continuing abrogation of both Due Process and our binding obligations to protect refugees at our Southern Border and elsewhere, Tess’s last sentence is particularly prophetic:

As the Attorney General and other executive officials attempt to expand their authority to define the terms of immigration adjudication, federal courts should heed the Seventh Circuit’s decision – and remember the foundational legal principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”

So far, the Supremes and the Circuits have largely “vacated the province and shirked their duties” to the nation and our laws by shrinking and cowering in the face of the regime’s continuing lawlessness, bullying, bias, and tyranny. Indeed, the Supremes have shown a disturbing favoritism to unjustified requests by Trump’s Solicitor General to short-circuit the litigation system and the rules that bind all others.

Not since the Eisenhower Administration’s “Operation Wetback” (obviously one of the regime’s “models” of lawless disregard for human and legal rights, not to mention basic morality) has our national Government shown such overt racism and contempt for migrants of color. Yet, rather than standing tall and delivering a united, powerful, intellectually courageous defense of our Constitution, the “GOP Gang of Five Supremes” backed the dehumanization and demonization of migrants on racial and religious grounds for transparent and invidious political reasons in the “Travel Ban case.” They basically invited and then approved a demonstrably false and “bad faith” national defense “pretext” which the Administration has “jumped on” to justify other attacks on the rule of law.

Now the “ban” has remarkably, but predictably, been extended to a large part of Africa, including its largest economy, Nigeria. Hardly a whimper as Trump disembowels both Constitutional norms and human decency. What’s next on the agenda, Supremes, a bogus Executive ban on all non-White, non-Christian immigration? Who’d be surprised at this point?

Of course, with “constitutional de-personification” well under way with Article III approval, the next targets will be US citizens of color and others who “dare to differ” like the LGBTQ community, women, political opponents, journalists, lawyers, and, finally, judges themselves once their usefulness to Trump and his authoritarian regime is exhausted. The all-powerful, unrestrained, “unitary Executive” has no need of legislature, judiciary, or the people except to “ratify” their authoritarian abuses.

The failure to defend and reinforce the courageous legal community challenging the regime’s authoritarian overreach and the pathetically weak defense of the integrity of judicial colleagues who have tried to hold the regime accountable by Roberts has done nothing but confirm and reinforce Trump’s pre-existing belief that courts are “his” tools and judges “his toadies.”

America deserves better from its life-tenured judiciary! What’s the purpose of a supposedly independent life-tenured judiciary that sides with powerful, dishonest, lawless, bullies over the rights of individuals and is unwilling to stand up for the rights and human dignity of the most vulnerable among us?

PWS

02-04-20

HON. JEFFREY S. CHASE: CRIME & REFUGEE PROTECTION: “The implication that refugees should either stay or return ‘home’ ignores the impossibility of such request, as refugees by definition lack a home or country.”

https://www.jeffreyschase.com/blog/2019/12/21/crime-and-refugee-protection

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Crime and Refugee Protection

I authored a letter that was published in the New York Times on January 15, 1993, under the heading “A Vital Distinction.” My letter pointed to “a public failure to differentiate between immigrants and refugees.” Immigrants, who come by choice, may be subjected to whatever limitations and restrictions our government chooses to set. However, I noted that “unlike immigrants, refugees have no country to return to.” For that reason, I wrote that the U.S. “is not free to exclude or deport refugees arbitrarily. As a signatory to the 1967 Protocol Relating to the Status of Refugees, the United States is bound by international law to afford protections to this most vulnerable group, including the right to apply for asylum.” My concluding sentence was that “United States lawmakers must keep immigration and refugee policies distinct, and abide by our legal and moral obligations in excluding refugees from any restrictionist debate.”

Nearly 27 years (and two impeachments) later, the policies of the Trump Administration are precisely designed to blur this important distinction. The implication that refugees should either stay or return “home” ignores the impossibility of such request, as refugees by definition lack a home or country.

On December 18, the Department of Justice published a proposed regulation that would render ineligible for asylum refugees convicted of seven categories of criminal offenses. Included are convictions under 8 U.S.C. § 1324 for encouraging a noncitizen to enter or reside in the U.S., knowing that such entry or residence would be in violation of law. It also includes convictions under 8 U.S.C. § 1326 for entering or attempting to reenter the U.S. after having previously been denied entry or deported. Of course, in the case of refugees, both of these crimes might be necessitated by the need to save their own lives or those of their loved ones.

The list of prohibited crimes also includes misdemeanors involving false identification (i.e. documents refugees might use to flee harm; think of the movie Casablanca) or unlawfully receiving public benefits.

I am going to agree with my 32-year-old self that these proposed rules violate our obligations under international law. In support of such argument, I look to the UNHCR Handbook on Procedures and Criteria For Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. The Handbook is the leading reference tool for interpreting the international treaties forming the basis for U.S. asylum law.1

The Handbook notes three categories of ineligibility under the 1951 Convention for those otherwise meeting the definition of refugee: those not in need of international protection (because the have already obtained protection from another state); those not deserving of protection (such as those guilty of war crimes or crimes against humanity), and lastly, those convicted of less egregious offenses that nevertheless constitute “serious non-political crimes” that would make the individual a danger to the accepting community.

Para. 155 of the Handbook clarifies the type of crime necessary to exclude an individual from refugee protection under the Convention, noting that “ a ‘serious’ crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion…even if technically referred to as ‘crimes’ in the penal law of the country concerned.”

Para. 156 of the Handbook adds an additional consideration: the severity of the harm feared by the asylum-seeker if deported. The Handbook affirms that the Convention requires a sliding scale under which a person fearing a threat to life or freedom must be convicted of a “very grave” crime in order to be denied refugee protection.

The above-mentioned offenses covered by the new regulations fall far short of the type of serious crimes denoted by the Convention. One who has established a well-founded fear of persecution may never be legally excluded under the Convention because they reentered the U.S. after previously being denied entry, or because they used a false social security card to work.

But even as to more serious offenses, the new regulations lack the required balancing of crime vs. feared harm to determine, as the Handbook aptly puts it, “whether [the asylum-seeker’s] criminal character does not outweigh his character as a bona fide refugee.”

While I’m certain such arguments will fall on deaf ears in the present administration, perhaps the inevitable implementation of the rule will be blocked through litigation or legislation. And as a difficult year draws to an end, let us hope that the need to acknowledge and honor our international law obligations towards refugees will not need repeating 27 years from now.

Note:

See Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) (holding that the legislative history of the Refugee Act of 1980 “does make clear that Congress intended ‘to bring United States refugee law into conformance with the [Protocol], 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States acceded in 1968.’ Cardoza-Fonseca, 480 U.S. at 436-37” and that “[i]n interpreting the Refugee Act in accordance with the meaning intended by the Protocol, the language in the Act should be read consistently with the United Nations’ interpretation of the refugee standards.”

Copyright 2019 Jeffrey S. Chase. All rights reserved.

DECEMBER 21, 2019

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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals. He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award. Jeffrey is also a past recipient of AILA’s Pro Bono Award. He sits on the Board of Directors of the Association of Deportation Defense Attorneys.

Audio by websitevoice.com

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Thanks, Jeffrey, my friend and colleague, for your lifetime dedication to Due Process and humanitarian justice!

The regime’s illegal, immoral, and unconstitutional program of White Nationalist fascism goes far beyond this! They have intentionally and cynically conflated immigrants, migrants, refugees, and asylum seekers into a single vile and degrading term: “illegals.”

Then, through a process of intentionally misinterpreting law, ignoring the statutes, false narratives, bogus statistics, and trampling due process, they have artificially constricted legal immigration, refugee admissions, and asylum grants to the point where far, far, far too many of those who actually could and should be legally admitted or otherwise given legal permission to remain are now “outside the system” as improperly redefined by the regime. That then leads to the further fiction that we are “being overrun” which is used to “whip up” a racist, White Nationalist “base.”

This, in turn, buries the “Truth That Trump Doesn’t Want You to Know:” Decades of artificially created, market driven, “extralegal migration” has resulted in huge overall benefits to the U.S., particularly our economy. Far from “taking American jobs,” migrants, both documented and undocumented, actually drive our economic success! Doubt this? The Trump family doesn’t! They have consistently relied on both undocumented and documented migrants to keep the money flowing.

Obviously, a rational national response would to use the existing legal system to properly include more qualified individuals while legislating to expand the legal immigration opportunities to more realistic and appropriate levels while simplifying the application process and facilitating the integration and naturalization of those with permanent resident status. Much of the money now spent on needless detention and arbitrary, capricious, politically and racially motivated immigration “enforcement” that fails to serve any legitimate national interest could be reprogrammed to other activities or to real law enforcement against human and drug traffickers and others whose entry might actually be bad for our country. A more generous system would sharply decrease the incentives for extralegal migration and employment, putting many smugglers out of business, thereby allowing law enforcement to focus on a smaller group of those still seeking to evade the system. An expanded and more rational legal immigration system would also make “being sent to the end off the line” a more realistic “sanction” rather than the “nativist legal fiction” it has become under current law.

The whole disgraceful process has been “facilitated” by a Legislative Branch intentionally disempowered by “Moscow Mitch” and his GOP toadies and complicit Article III Courts that ignore the “big picture” and the legal fraud unfolding around them.

Unfortunately, given Trump’s “transformation” of the Federal Courts, even ”regime change” in 2020 might not be enough to save our republic and American democracy!

That’s why the work of the New Due Process Army in confronting Article III Courts with the true ugliness of the results and the full legal and moral implications of their complicity and task avoidance is so important!

Constantly Confront Complicit Courts 4 Change!

Due Process Forever!

PWS

12-23-19

TIME FOR SOME GOOD NEWS: Waterwell’s Immigration Court Drama “The Courtroom,” Featuring Roles By Some “Judges Of The Roundtable,” Makes NY Times “Best Theater of 2019” List! — “[W]e citizens are on trial, too. What kind of a nation are we? How cruel have we permitted ourselves to be?”

Retired Judge Jeffrey S. Chase, leader of our “Roundtable of Former Immigration Judges” reports:

Waterwell’s wonderful play The Courtroom, in which the script is an actual transcript of an immigration court hearing, and in which three of us (Betty Lamb, Terry Bain, and myself) so far have acted along with stars of Broadway, TV, and film, was named today by the New York Times to its “Best Theater of 2019” list!

Waterwell plans to hold a performance a month through next September or so, so if you are coming to NYC, you can still see it (or maybe act in it!)

BTW, the role played by some of us was the judge performing the naturalization ceremony at the end of the play, in which the entire audience stands and takes the oath. The best anecdote I have heard so far was after a performance at the Second Circuit Court of Appeals, where a non-citizen audience member asked a member of the Waterwell staff if that was a real judge performing the scene. When told yes, it was, the audience member replied “Well, then I guess I’m a U.S. citizen now!”

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Here’s the link to the NY Times and the summary of “The Courtroom” by Laura Collins-Hughes:

https://www.nytimes.com/2019/12/03/arts/best-broadway-theater-show.html?smid=nytcore-ios-share

LAURA COLLINS-HUGHES

Political Punches

One of the most heart-gripping shows of the year could hardly be simpler: It’s not even a full production, just a staged reading of trial transcripts.

Michael Braun and Kristin Villanueva in “The Courtroom.”Credit…Maria Baranova

In W aterwell’s “The Courtroom,” the accused is an immigrant in danger of deportation, her unassuming American life at risk of being torn apart over a mistake she insists was innocent. The sneaky thing about this riveting re-enactment, though, is that in watching it, we citizens are on trial, too. What kind of a nation are we? How cruel have we permitted ourselves to be?

That work, recently returned for monthly site-specific performances around New York, is part of 2019’s thrillingly vital bumper crop of political theater — shows that implicate the audience with bracing artistry.

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Some of you have probably heard me say that being an Immigration Judge was “half scholar, half performing artist.”

Congrats to Waterwell and to “Roundtable Drama Stars” Retired Judges Jeffrey S. Chase, Betty Lamb, and Terry Bain, all formerly of the NY Immigration Court. Proud of you guys! There are so many ways in which our Roundtable contributes to the New Due Process Army’s daily battle to restore Due Process and save our democracy, beyond filing amicus briefs throughout the country (which we do almost every week, with lots of pro bono help from our talented friends at many law firms)!

Many of those contributions are through the arts. See Judge Polly Webber and her triptych “Refugee Dilemma” fiber artwork, which has received national acclaim and recognition. https://wp.me/p8eeJm-48d As I said just today in an earlier blog about the disturbingly poor and tone deaf performance by three life-tenured judges of the 11th Circuit, this really is not about different legal views any more. https://wp.me/p8eeJm-4RO

It’s a moral and ethical battle to preserve our democracy and its commitment to humanity from the forces of evil, racism, xenophobia, misogyny, authoritarianism, corruption, and White Nationalism that threaten to destroy it. It so happens that courtrooms are among the most visible battlegrounds. But, it goes far beyond that – to the very fabric of our society and our values — to our very humanity and how we view our fellow human beings.

That’s why complicit judges are so dangerous to the system. As with “Jim Crow,” there is only one “right side of history” here! We deserve better performance from America’s judges, particularly those with Article III protections!

As Laura so cogently said in her review:

[W]e citizens are on trial, too. What kind of a nation are we? How cruel have we permitted ourselves to be?

“The Courtroom” should be required viewing for every judge, law professor, judicial law clerk, law student, legislator, congressional staff member, and immigration bureaucrat in America!

Due Process Forever!

PWS

12-04-19

THREE THANKSGIVING CHEERS FOR IMMIGRATION JUDGE JULIE NELSON (SF) & APPELLATE IMMIGRATION JUDGE ELLEN LIEBOWITZ (BIA) — Doing Justice, Granting Asylum, Saving Lives In The Age Of Trump!

My colleague Judge Jeffrey Chase of our Roundtable of Former Immigration Judges reports some good news:

Also, for those of you who subscribe to Ben Winograd’s index of unpublished BIA Decisions, today’s update includes an unpublished decision dated Nov. 6, 2019, Matter of A-C-A-A- (single BM Ellen Liebowitz), affirming the IJ’s grant of asylum in a domestic violence case based on her cognizable PSG of “Salvadoran females.” The written decision of the IJ, Julie L. Nelson in SF, is also included.

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Thanks to those judges like Judge Nelson and Judge Liebowitz who are continuing to stand up for the rights of asylum seekers “post-A-B-.”

And, many thanks to Jeffrey & Ben for passing this good news along and for all they do for Due Process every day!

What if rather than the “A-B- atrocity” made precedent by unethical White Nationalist Jeff Sessions, we had an honest, independent Immigration Court system that encouraged fair and impartial adjudications and implemented asylum laws generously, as intended (see, e.g., INS v. Cardoza-Fonseca) by publishing precedent decisions like this recognizing the right to protection?

BIA precedents on asylum have intentionally been constructed in a negative manner, showing judges how to deny, rather than grant, protection and encouraging them to take a skewed anti-asylum view of the law. Even worse, bogus, unethical, legally incorrect “Attorney General precedents” are uniformly anti-asylum; the applicant never wins.

Some judges, like Judge Nelson and Judge Leibovitz, take their oaths of office seriously. But, too many others “go along to get along” with the unlawful and unethical “anti-asylum program” pushed by the White Nationalist Trump Regime.

Indeed, even during my tenure as an Immigration Judge, I remember being required to attend asylum “training” sessions (in years when we even had training) where litigating attorneys from the Office of Immigration Litigation basically made a presentation that should have been entitled “How to Deny Potentially Valid Asylum Claims And Have Them Stand Up On Judicial Review.”

It’s also past time for the Supremes and the Circuit Courts of Appeals to get their collective heads out of the clouds, start paying attention, begin doing their jobs and strongly rejecting “disingenuous deference” to bogus, illegal, unethical “precedents” rendered by politically biased enforcement hacks like Sessions and Barr who have unethically usurped the role of quasi-judicial adjudicator for which they are so clearly and spectacularly unqualified under the Due Process Clause of the Fifth Amendment. It’s nothing short of “judicial fraud” by the Article IIIs! Constantly Confront Complicit Courts 4 Change!

With a more honest and legally correct favorable precedents on asylum, many more cases could be documented and granted at the Asylum Office and Immigration Court levels. The DHS would be discouraged from wasting court time by opposing meritorious applications. The backlog would start going down. There would be fewer appeals. Justice would be served. Worthy lives would be saved. DHS could stop harassing asylum seekers and start enforcing the laws in a fair and reasonable manner. America would lead the way in implementing humanitarian laws, and we would become a better country for it.

Help the New Due Process Army fight for a better, more just, future for America and the world.

Due Process Forever!

Happy Thanksgiving.

PWS

11-28-19

TWO MORE FROM HON. JEFFREY CHASE EXPOSING TRUMP ADMINISTRATION’S CRIMES AGAINST HUMANITY & HOW THE COMPLICIT FEDERAL COURTS FURTHER THESE ABUSES! — “How innocent women and children resigning themselves to being severely beaten, raped, and killed in their home countries constitutes all problems being solved is beyond comprehension.”

https://www.jeffreyschase.com/blog/2019/9/16/the-cost-of-outsourcing-refugees

The Cost of Outsourcing Refugees

It seems perversely appropriate that it was on 9/11 that the Supreme Court removed the legal barrier to the Trump Administration’s most recent deadly attack on the right to asylum in this country. I continue to believe that eventually, justice will prevail through the courts or, more likely, through a change in administration. But in the meantime, what we are witnessing is an all-out assault by the Trump Administration on the law of asylum. The tactics include gaming the system through regulations and binding decisions making it more difficult for asylum seekers to prevail on their claims. But far uglier is the tactic of degrading those fleeing persecution and seeking safety here. Such refugees, many of whom are women and children, are repeatedly and falsely portrayed by this administration and its enablers as criminals and terrorists. Upon arrival, mothers are separated from their spouses and children from their parents; all are detained under dehumanizing, soul-crushing conditions certain to inflict permanent psychological damage on its victims. In response to those protesting such policies, Trump tweeted on July 3: “If illegal immigrants are unhappy with the conditions in the quickly built or refitted detention centers, just tell them not to come. All problems solved!”

How innocent women and children resigning themselves to being severely beaten, raped, and killed in their home countries constitutes all problems being solved is beyond comprehension.

Those in Trump’s administration who have given more thought to the matter don’t seek to solve the problem, but rather to make it someone else’s problem to solve. By disqualifying from asylum refugees who passed through any other country on their way to our southern border or who entered the country without inspection; by forcing thousands to remain exposed to abuse in Mexico while their asylum claims are adjudicated, and by falsely designating countries with serious gang and domestic violence problems as “safe third countries” to which asylum seekers can be sent, this administration is simply outsourcing refugee processing to countries that are not fit for the job in any measurable way. Based on my thirty-plus years of experience in this field, I submit that contrary to Trump’s claim, such policies create very large, long-term problems.

I began my career in immigration law in the late 1980s representing asylum seekers from Afghanistan, many of whom were detained by our government upon their arrival. In the late 1980s and early 1990s, Afghans constituted the largest group of refugees in the world. At one point, there were more than 6 million refugees from Afghanistan alone, most of whom were living in camps in Pakistan. Afghan children there received education focused on fundamentalist religious indoctrination that was vehemently anti-western. The Taliban (which literally means “students”) emerged from these schools. The Taliban, of course, brought a reign of terror to Afghanistan, and further provided a haven for Al-Qaeda to launch the 9/11 terrorist attacks. The outsourcing of Afghan refugees to Pakistan was the exact opposite of “all problems solved,” with the Taliban continuing to thwart peace in Afghanistan up to the present.

Contrast this experience with the following: shortly before I left the government, I went to dinner with a lawyer who had mentioned my name to a colleague of his earlier that day. The colleague had been an Afghan refugee in Pakistan who managed to reach this country as a teen in the early 1990s, and was placed into deportation proceedings by the U.S. government. By chance, I had been his lawyer, and had succeeded in obtaining a grant of asylum for him. Although I hadn’t heard from him in some 25 years, I learned from his friend that evening that I had apparently influenced my young client when I emphasized to him all those years ago the importance of pursuing higher education in this country, as he credited me with his becoming a lawyer. Between the experiences of my former client and that which led to the formation to the Taliban, there is no question as to which achieved the better outcome, and it wasn’t the one in which refugees remained abroad.

In 1938, at a conference held in Evian, France, 31 countries, including the U.S. and Canada, stated their refusal to accept Jewish refugees trapped in Nazi Germany. The conference sent the message to the Nazis on the eve of the Holocaust that no country of concern cared at all about the fate of Germany’s Jewish population. The Trump administration is sending the same message today to MS-13 and other brutal crime syndicates in Central America. Our government is closing the escape route to thousands of youths (some as young as 7 years old) being targeted for recruitment, extortion, and rape by groups such as MS-13, while simultaneously stoking anti-American hatred among those same youths through its shockingly cruel treatment of arriving refugees. This is a dangerous combination, and this time, it is occurring much closer to home than Pakistan. Based on historic examples, it seems virtually assured that no one will look back on Trump’s refugee policies as having solved any problems; to the contrary, we will likely be paying the price for his cruel and short-sighted actions for decades to come.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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https://www.jeffreyschase.com/blog/2019/9/14/former-ijs-file-amicus-brief-in-padilla-v-ice

Former IJs File Amicus Brief in Padilla v. ICE

The late Maury Roberts, a legendary immigration lawyer and former BIA Chair, wrote in 1991: “It has always seemed significant to me that, among all the members of the animal kingdom, man is the only one who captures and imprisons his fellows. In all the rest of creation, freedom is the natural order.”1 Roberts expressed his strong belief in the importance of liberty, which caused him consternation at “governmental attempts to imprison persons who are not criminals or dangerous to society, on the grounds that their detention serves some other societal purpose,” including noncitizens “innocent of any wrongdoing other than being in the United States without documents.”2

The wrongness of indefinitely detaining non-criminals greatly increases when those being detained are asylum-seekers fleeing serious harm in their home countries, often after undertaking dangerous journeys to lawfully seek protection in this country. The detention of those seeking asylum is at odds with our obligations under the 1951 Refugee Convention, which at Article 31 forbids states from penalizing refugees from neighboring states on account of their illegal entry or presence, or from restricting the movements of refugees except where necessary; and the International Covenant on Civil and Political Rights, which guarantees at Article 9, para. 4 the right of detainees to have a court “without delay” determine the lawfulness of the detention order release if it is not.

In 1996, in response to an increase in asylum seekers at ports of entry, Congress enacted a policy known as expedited removal, which allows border patrol officers to enter deportation orders against those noncitizens arriving at airports or the border whom are not deemed admissible. A noncitizen expressing a fear of returning to their country is detained and referred for a credible fear interview. Only those whom a DHS asylum officer determines to have a “significant possibility” of being granted asylum pass such interview and are allowed a hearing before an immigration judge to pursue their asylum claim.

In 2005, the Board of Immigration Appeals issued a precedent decision stating that detained asylum seekers who have passed such credible fear interview are entitled to a bond hearing. It should be noted that the author of this decision, Ed Grant, is a former Republican congressional staffer and supporter of a draconian immigration enforcement bill enacted in 1996, who has been one of the more conservative members of the BIA. He was joined on the panel issuing such decision by fellow conservative Roger Pauley. The panel decision was further approved by the majority of the full BIA two years after it had been purged of its liberal members by then-Attorney General John Ashcroft. In other words, the right to bond hearings was the legal conclusion of a tribunal of conservatives who, although they did not hold pro-immigrant beliefs, found that the law dictated the result it reached.

14 years later, the present administration issued a precedent decision in the name of Attorney General Barr vacating the BIA’s decision as “wrongly decided,” and revoking the right to such bond hearings. The decision was immediately challenged in the courts by the ACLU, the Seattle-based Northwest Immigrant Rights Project, and the American Immigration Council. Finding Barr’s prohibition on bond hearings unconstitutional, U.S. District Judge Marsha Pechman issued a preliminary injunction blocking the decision from taking effect, and requiring bond hearings for class members within 7 days of their detention. The injunction additionally places the burden on the government to demonstrate why the asylum-seeker should not be released on bond, parole, or other condition; requires the government to provide a recording or verbatim transcript of the bond hearing on appeal; and further requires the government to produce a written decision with particularized determinations of individualized findings at the end of the bond hearing.

The Administration has appealed from that decision to the U.S. Court of Appeals for the Ninth Circuit. On September 4, an amicus brief on behalf of 29 former immigration judges (including myself) and appellate judges of the BIA was filed in support of the plaintiffs. Our brief notes the necessity of bond hearings to due process in a heavily overburdened court system dealing with highly complex legal issues. Our group advised that detained asylum seekers are less likely to retain counsel. Based on our collective experience on the bench, this is important, as it is counsel who guides an asylum seeker through the complexities of the immigration court system. Furthermore, the arguments of unrepresented applicants are likely to be less concise and organized both before the immigration judge and on appeal than if such arguments had been prepared by counsel. Where an applicant is unrepresented, their ongoing detention hampers their ability to gather evidence in support of their claim, while those lucky enough to retain counsel are hampered in their ability to communicate and cooperate with their attorney.

These problems are compounded by two other recent Attorney General decisions, Matter of A-B- and Matter of L-E-A-, which impact a large number of asylum claimants covered by the lawsuit who are fleeing domestic or gang violence. Subsequent to those decisions, stating the facts giving rise to the applicant’s fear can be less important than how those facts are then framed by counsel. Immigration Judges who are still navigating these decisions often request legal memoranda explaining the continued viability of such claims. And such arguments often require both a legal knowledge of the nuances of applicable case law and support from experts in detailed reports beyond the capability of most detained, unrepresented, newly-arrived asylum seekers to obtain.

Our brief also argues that the injunction’s placement of the burden of proof on DHS “prevents noncitizens from being detained simply because they cannot articulate why they should be released, and takes into account the government’s institutional advantages.” This is extremely important when one realizes that, under international law, an individual becomes a refugee upon fulfilling the criteria contained in the definition of that term (i.e. upon leaving their country and being unable or unwilling to return on account of a protected ground). Therefore, one does not become a refugee due to being recognized as one by a grant of asylum. Rather, a grant of asylum provides legal recognition of the existing fact that one is a refugee. 3 Class members have, after a lengthy screening interview, been found by a trained DHS official to have a significant possibility of already being a refugee. To deny bond to a member of such a class because, unlike the ICE attorney opposing their release, they are unaware of the cases to cite or arguments to state greatly increases the chance that genuine refugees deserving of this country’s protection will be deported to face persecution

The former Immigration Judges and BIA Members signing onto the amicus brief are: Steven Abrams, Sarah Burr, Teofilo Chapa, Jeffrey S, Chase, George Chew, Cecelia Espenoza, Noel Ferris, James Fujimoto, Jennie Giambiastini, John Gossart, Paul Grussendorf, Miriam Hayward, Rebecca Jamil, Carol King, Elizabeth Lamb, Margaret McManus, Charles Pazar, George Proctor, Laura Ramirez, John Richardson, Lory D. Rosenberg, Susan Roy, Paul W. Schmidt, Ilyce Shugall, Denise Slavin, Andrea Hawkins Sloan, Gustavo Villageliu, Polly Webber, and Robert D. Weisel.

We are greatly indebted to and thankful for the outstanding efforts of partners Alan Schoenfeld and Lori A. Martin of the New York office of Wilmer Hale, and senior associates Rebecca Arriaga Herche and Jamil Aslam with the firm’s Washington and Los Angeles offices in the drafting of the brief.

Notes:

Maurice Roberts, “Some Thoughts on the Wanton Detention of Aliens,”Festschrift: In Celebration of the Works of Maurice Roberts, 5 Geo. Immigr. L.J. 225 (1991).

Id. at 226.

UNHCR,Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees at Para. 28.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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Thanks, Jeffrey, my friend, for courageously highlighting these issues. What a contrast with the cowardly performance of the Trump Administration, Congress, and the ARTICLE IIIs!

I’m proud to be identified with you and the rest of the members of our Roundtable of Former Judges who haven’t forgotten what Due Process, fundamental fairness, refugee rights, and human rights are all about.

Also appreciate the quotation from the late great Maurice A. “Maury” Roberts, former BIA chair and Editor of Interpreter Releases who was one of my mentors. I‘m sure that Maury is rolling over in his grave with the gutless trashing of the BIA and Due Process by Billy Barr and his sycophants.

PWS

09-24-19

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

Tal Kopan reports for the SF Chron:

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

Confusion, delays as videos replace interpreters at immigrants’ hearings

By Tal Kopan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

09-05-19

COURAGEOUS U.S IMMIGRATION JUDGES LIKE PAUL GAGNON OF THE BOSTON IMMIGRATION COURT CONTINUE TO PROTECT ABUSED REFUGEE WOMEN UNDER THE LAW DESPITE SESSIONS’S EXTRALEGAL ATTEMPT TO ELIMINATE PROTECTION IN MATTER OF A-B- — Continuing Threats By Bill Barr & EOIR Against Judges Who Act Fairly & Impartially Fail To Deter Some From Upholding Their Oaths Of Office — Of Course, “Women in Guatemala” are a “Particular Social Group,” As Beautifully & Convincingly Set Forth By Judge Gagnon’s Recent Decision, A Primer On The Proper Application Of Asylum Law That Carries Out The Intent Of The Supreme’s 1987 Decision in Cardoza-Fonseca!

Boston Judge Gagnon Decision

Thanks to Judge Jeffrey Chase, leader of our Roundtable of Former Immigration Judges for sending this to me.

Also, I join Judge Chase in congratulating Gerald D. Wall and the Greater Boston Legal Services (a clinical program of Harvard Law School) for providing pro bono representation in this case.

Note how succinct, straightforward, logical, and well-supported by authority Judge Gagnon’s decision is. Compare that with the nearly incomprehensible 30+ page anti-asylum, lie-filled, intellectually dishonest, and legally incorrect screed written by Sessions in support of his cowardly extralegal attack on some of the most vulnerable and deserving of protection among us in his Matter of A-B- atrocity.

Now think of how the system could work if Judge Gagnon’s correct decision were the precedent and all asylum applicants had access to qualified pro bono counsel.

Many cases could be promptly granted by an honest USCIS Asylum Office committed to properly applying protection law. They would not even have to reach the backlogged Immigration Courts or be subjected to toxic, counterproductive “gimmicks” like “Let ‘Em Die in Mexico” or absurdities like claiming that everyone should apply in Guatemala, from which this respondent was fleeing for her life and which has neither a functional government nor a credible asylum system.

That, plus perhaps using retired judges from all types of courts and bringing back retired Asylum Officers and adjudicators trained to recognize and quickly grant “slam dunk” asylum cases like this would be the key to establishing a credible, independent, Immigration Court and a reestablishing a functioning asylum system of which we all could be proud.

Instead, our current maliciously incompetent White Nationalist regime continues to ignore our laws, our Constitution, and our international obligations in leading a cowardly and disreputable “race to the bottom” in which the richest and most powerful country in the world conducts itself as a “Banana Republic” led by a tinhorn dictator.

PWS

08-08-19

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

How Trump Broke the Immigration Courts

Julia Preston

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

READ ON POLITICO.COM

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

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

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

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

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

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

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

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PWS

07-16-19

AMEN: A PRAYER IN THE TIME OF KAKISTOCRACY!

Judge (Ret.) Jeffrey S. Chase writes:

Hi all: I volunteer on Tuesday nights at a free immigration law clinic run by the New Sanctuary Coalition, based in Judson Church In Greenwich Village, NYC. As you can imagine, fear has been running high since the announcement of multi-city raids. Micah Bucey, a minister at Judson, composed the following non-denominational centering prayer that is now recited before each clinic. I share with you for inspiration:

Spirit of Resistance,

You who are beyond the capacity of any border or name,

You who stretch beyond the indignity of any cage

You who envelop us in the power to persist, to protest, and to rehumanize, //

As we bring our passion and our pain to this place,

We offer gratitude for small gatherings that do monumental things,

We offer gratitude for a fierce community that unbuilds walls

And we offer gratitude for dreams of the world we are creating. //

We ask that you

Refresh us with new breath and energy for the long haul,

Guide us through fear, frustration, and panic,

Expand our hearts to envelop all those who pass through this room tonight and all those who have yet to make it to this room,

Ignite the fire of our faith in the truth that love knows no borders. //

Help us to never forget

That ICE is meant to melt,

That you cannot deport a movement,

And that the moral arc of the universe only bends toward justice if we keep bending it together. //

Amen

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PWS

06-29-19

BIA SAYS IT’S FINE FOR IMMIGRATION JUDGES TO HELP OUT ICE ENFORCEMENT – Read Hon. Jeffrey S. Chase On Latest One-Sided Decision In Matters of Andrade Jaso and Carbajal Ayala.

https://www.jeffreyschase.com/blog/2019/6/7/the-bia-and-selective-dismissal

Jun 7 The BIA and Selective Dismissal

On May 31, the BIA published a precedent decision in Matters of Andrade Jaso and Carbajal Ayala. In that decision, Board Member Garry Malphrus (writing for a panel that included Hugh Mullane and Ellen Liebowitz) held that immigration judges have the authority to dismiss removal proceedings upon a finding that it is an abuse of the asylum process to file a meritless asylum application with USCIS for the sole purpose of seeking cancellation of removal in proceedings before the immigration court.

As always, some context is required. Cancellation of removal is a relief available to those who have been in the U.S. for at least 10 years, have led a generally clean life here, and have a child, spouse, or parent who is a U.S. citizen or green card holder who would suffer a very high degree of hardship if their noncitizen relative were to be deported. The hardship might be to elderly parents for whom the noncitizen is a necessary caregiver, or to a spouse with a serious medical or psychological condition, or children with special needs. But unlike most other forms of relief, which usually involve the mailing of an application to USCIS, cancellation of removal may only be requested from an immigration judge after the applicant is placed in removal proceedings in immigration court.

Once, an attorney who felt his client had a strong enough claim would arrange with the ICE investigations unit to process the client and place her or him into removal proceedings. A number of years ago, under the Obama Administration, ICE discontinued this practice. According to a former ICE official, the reason given by the investigations office for the change was that it is not their job to help people obtain benefits.

With this decades-old avenue suddenly closed, attorneys asked the ICE office of general counsel for guidance. ICE’s own response: apply for asylum with USCIS. Any asylum applicant not granted is referred to an immigration judge, where the applicant can then apply for any relief, including cancellation of removal. This answer was confirmed at a high level in ICE headquarters, which assured that there was nothing wrong with filing for asylum for the sole purpose of applying for cancellation of removal before an immigration judge.

It is worth noting that ICE’s present solution places a very unfair burden on the USCIS Asylum Offices, which are already overwhelmed with the backlog of asylum claims and credible and reasonable fear interviews. The workload of individual asylum officers is untenable at present. The simple and obvious solution would be to have ICE return to processing those wishing to be placed into proceedings, but that’s a matter for DHS to work out internally. In the meantime, applying for asylum remains the only avenue for cancellation of removal candidates.

The question obviously arises as to how an immigration judge can find the following of DHS’s own recommendation to be an abuse of the asylum process, or how such argument can be raised by attorneys employed by the exact ICE office that came up with the suggestion in the first place.

Such a position might have been justifiable under the Obama Administration, which in response to the growing case backlog created a system of prioritization, which included the closing out of cases not considered urgent. However, as we all know, the Trump Administration did away with such priority system, on the apparent belief that everyone should be deported immediately. Those cases closed as non-priority under Obama are being forced back into an already overloaded system. The press is filled with stories of a pizza delivery man, or a father dropping his child at school being arrested, detained, and placed into removal proceedings. Of course, we have all read the reports of children being torn from their parents and detained separately (undoubtedly causing permanent psychological damage), and, if lucky enough to be released, sped through the system because this administration believes everyone deserves to be deported.

Some immigration judges used their authority to administrative close, delay, dismiss, or terminate proceedings where appropriate in the hopes of affording justice to those caught in proceedings. Former attorney general Jeff Sessions reacted quickly, issuing binding decisions prohibiting such efforts. In Matter of Castro-Tum, Sessions stripped IJs of their long-standing ability to administratively close cases. In Matter of L-A-B-R-, Sessions made it prohibitively more difficult for IJs to even grant continuances for legitimate reasons. And in Matter of S-O-G- & F-D-B-, Sessions held that immigration judges have no inherent authority to dismiss or terminate proceedings, a move consistent with his overall goal of downgrading independent judges to the role of assembly line workers. Sessions also stated that an IJ may dismiss proceedings only under the limited circumstances set out in the regulations.

The applicable regulation, 8 C.F.R. § 239.2(a), lists seven circumstances under which DHS (but not the private bar) may seek dismissal of proceedings. The first four, where the respondent turns out to in fact be a national of the U.S., to not be deportable from or inadmissible to the U.S., to be deceased, or to not be in the U.S., are pretty obvious reasons to dismiss proceedings, as all involve situations in which, due to either error or intervening events, there is no living respondent in the U.S. who is removable under the law, and thus no case to pursue in court. Reason 5 involves a very specific situation where one granted conditional residence as the spouse of a U.S. citizen or permanent resident was placed into proceedings because she or he did not timely file the petition to remove the condition on their residence within the required time frame, but it turned out they filed late for a legitimate reason permitted by the law. Reason 6 is where the NTA was improvidently issued. An example of that is where after issuing an NTA, DHS realizes that the respondent was already issued an NTA at an earlier time, and therefore seeks to dismiss the second NTA and reopen the first proceeding.

Reason 7 is where circumstances have changed since the NTA was issued to such an extent that continuation of the proceedings is no longer in the best interest of the government. This is obviously meant to be a broadly-defined category. However, it clearly doesn’t cover the situation arising in Andrade Jaso. DHS advised those wishing to apply for cancellation of removal but lacking a path to be placed into proceedings to file an asylum application for the sole purpose of being referred to the immigration court. The DHS asylum offices are so cognizant of the situation that a pilot project was briefly instituted to allow asylum applicants with over 10 years of residence to waive their asylum interview. So what is the drastically changed circumstance? Furthermore, all of the first 6 examples involve situations where the person in proceedings is not removable, because they are dead, outside of the U.S., actually in lawful status, etc., or may be removable, but there is some technical defect with the issuance of this specific NTA. All focus on whether there is a respondent who is properly removable; none allow for termination of the proceedings of a removable respondent based on what they might be seeking as a relief. But Andrade Jaso was properly in removal proceedings, and is properly removable from the U.S. as charged in the NTA. In all similar cases, the respondents admit removability, because otherwise, they would not be able to apply for cancellation of removal.

So in summary, Andrade Jaso is inconsistent with all of the AG’s precedent decisions under this administration, and with binding regulations. And yet, a three Board Member panel had no reservations (there wasn’t any dissent) in issuing this decision. Why? Because it prevents the only group of people who actually want to be in proceedings from having the chance to apply for legal status.

The good news is that the decision states that an immigration judge “may” terminate proceedings, not that they must. Hopefully, judges will exercise good judgment in refusing to terminate worthy cases. However, the decision might offer an equitable resolution where one who lacks the requirements for cancellation of removal, which requires an exceptional degree of hardship to the qualifying relative, was wrongly steered into removal proceedings and would otherwise have faced certain removal.

In closing, it is wondered how the AG or BIA might respond to a situation in which an IJ dismisses proceedings upon the motion of a DHS attorney that the separation of a child from its parent with no plan as to how to reunite the family, the permanent psychological damage such separation causes to child and parent, and the subsequent need to rush the family through the system before they can adequately obtain counsel or prepare their applications, constitutes such an abuse of the asylum system as to warrant dismissal under the same regulation. Are any DHS attorneys willing to make such motion?

Copyright 2019 Jeffrey S. Chase. All rights reserved.

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Why are the Immigration Court dockets out of control? Many, perhaps the majority, of the cases that DHS has put on the Immigration Court docket, shouldn’t be there. That’s because:

They involve individuals who have relief pending at USCIS; or
They involve long-term, law abiding undocumented residents, many with U.S. citizen or LPR family members, that in any rational system, particularly one straining to adjudicate cases of arriving asylum seekers in a timely manner, would be considered “low priority” — where removal actually is likely to be a “net negative” to the U.S. rather than serving any reasonable purpose; or
They are older asylum cases that should have been granted by the Asylum Office or should be “stip-granted” by DHS under a properly generous interpretation of asylum laws (disregarding lawless decisions like Matter of A-B-); or
They are potential “Non-Lawful-Permanent-Resident Cancellation Cases,” subject to an unrealistic numerical limit, that under a properly working system, could initially be vetted by Asylum Officers or other USCIS Adjudicators and only referred to the Immigration Court, in small manageable batches, if they could not potentially be granted by DHS.

With proper docket management, professional discipline, professional management, and the use of liberal amounts of “prosecutorial discretion” by the DHS, like every other prosecutorial office in he U.S save the “Trump DHS,” the Immigration Courts’ overwhelming backlog could be cut to manageable levels in relatively short order.

That, in turn, would allow the Immigration Courts to handle incoming asylum cases in a fair and timely manner without degrading Due Process or otherwise stepping on anyone’s rights. In other words, the idea that DHS should be empowered to force the Immigration Courts “to proceed to a final decision in every case filed” is killing the Immigration Courts and ultimately will tank the Article III Federal Courts if allowed to proceed without some “adult supervision.”

Additionally, the Immigration Courts need more 8ibetter qualified judges (with proven immigration expertise, not almost exclusively from the DHS side), much better training, improved staffing including a Judicial Law Clerk for each Immigration Judge, decisional and docket management independence, emphasis on written rather than oral decisions in most appealed cases, and, most of all, freedom from the pernicious political meddling from the DOJ and the White House that has brought this system into disrepute within the larger legal community and to the brink of collapse.

The “rule” established by the DOJ now appears to be that:

If a private party requests a continuance, closing, termination, or other reasonable postponement of removal proceedings, that request ordinarily should be denied in favor of proceeding to a final order whether it makes any sense or not; but
If “EOIR’s Partner” DHS requests that a case be taken off the docket for any reason, that should be viewed sympathetically even if it deprives a respondent in proceedings of substantial rights.

As long as so-called “courts” are told to consider themselves “in partnership with Government prosecutors,” to the derogation of private parties and individual rights, both statutory rights and Constitutional rights of individuals will be largely meaningless in the immigration context. And, if we let them become meaningless in immigration, soon they will be meaningless almost everywhere the Government chooses to overstep its legal and Constitutional authority. That’s the difference between an authoritarian state and a functioning democratic republic. Make no mistake about it, thanks to a great degree to what is happening in U.S. Immigration “Courts,” that difference is diminishing, for all of us, every day.

PWS

06-10-19

HON. JEFFREY S. CHASE: The Latest On The “Pereira Controversy”

https://www.jeffreyschase.com/blog/2019/6/3/latest-pereira-developments

Jun 3 Latest Pereira Developments

I have previously discussed the implications of the Supreme Court’s 2018 decision in Pereira v. Sessions here and here. There are two aspects to the Pereira decision. The first is the narrow issue presented to the Supreme Court, concerning whether the service of a purported charging document (known as a Notice to Appear, or “NTA”) that is defective in its lack of a time and date as required by statute triggers what is known as the “stop-time rule.” That rule prevents a non-citizen from accruing additional continuous residence towards the 10 years needed to be able to apply for a relief known as Cancellation of Removal. If the time was not stopped by the defective NTA, non-citizens continue to accrue time towards the ten-year requirement, eventually allowing many to apply for that additional form of relief that would have otherwise been closed to them. The second aspect of Pereira (and the one discussed in my prior posts, which has captured the imagination of many immigration practitioners) concerns whether the particular language employed by the Supreme Court in holding that no, the defective document does not trigger the stop-time rule because by virtue of its defect, the document isn’t in fact an NTA, can be interpreted to more broadly undermine the legitimacy of every case, past and present, that was initiated by DHS with such a defective document.

In spite of high hopes regarding the second issue (which were raised by the termination of 9,000 removal cases by immigration judges in just the first two months following the Pereira decision), the tide turned with the issuance of decisions to the contrary, first by the BIA in Matter of Bermudez-Cota, and then by decisions from the U.S. Courts of Appeals for the Sixth, Ninth, and Second Circuits affirming the BIA’s ruling.

Although a recent decision of the Seventh Circuit also refused to terminate the petitioner’s proceedings, it did so in a unique way that is worth discussing. In Ortiz-Santiago v. Barr, the court disagreed with the view of its sister circuits that Pereira’s holding was limited to the narrow issue of the stop-time rule, and that the NTA’s requirements are satisfied by the two-step process of the service of a defective NTA followed by the immigration court’s mailing of a notice providing the missing information. The Seventh Circuit found that “Pereira is not a one-way, one-day train ticket,” in that its holding has broader implications than merely the stop-time rule. The court rejected as “absurd” the Government’s argument that the NTA referenced in the statute is a different document from the one referenced in the regulations. (It bears noting that the 6th Circuit adopted this argument in footnote 4 of its decision in Santos-Santos v. Barr). The 7th Cir. was also unpersuaded by the two-step compliance approach of the BIA in Bermudez-Cota (which the other three circuits deferred to). The 7th Circuit stated that Bermudez-Cota “brushed too quickly over the Supreme Court’s rationale in Pereira and tracked the dissenting opinion rather than the majority.” The court added that “Congress itself appears to have rejected the two-step approach” when it passed the legislation that created the NTA.

The Seventh Circuit then turned to the issue of what should result from a finding that an NTA did not comply with the statute. Here the decision takes an interesting turn. The court stated that the fact that the regulation states that “jurisdiction vests” upon the service of an NTA isn’t read as “jurisdiction” “in the same sense that complete diversity or the existence of a federal question is for a district court.” Instead, the court interpreted the question of “jurisdiction” in an agency regulation as what it termed a “claim-processing rule,” which the court defined as a rule “that seeks to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” The court noted that the failure to comply with a claim-processing rule may result in termination of the case, but only if a timely objection is raised. In the absence of such timely objection, the failure to comply “may…be waived or forfeited by the opposing party.” The court turned to the question of whether the lack of such timely objection in the case before it constituted such forfeiture, or (1) whether the fact that doing so at the time would have been futile under existing circuit case law, and (2) the major legal change that the Pereira decision constituted, allowed for the late raising of such objection. The court answered this last question in the negative, concluding that the petitioner could have gleaned even pre-Pereira that a potential problem existed, as portended from the stand-alone position of the Third Circuit’s 2016 decision in Orozco-Velasquez v. Holder, which created the circuit court split that led the matter to eventually be taken up by the Supreme Court in Pereira.

Although the Ortiz-Santiago decision ultimately denied the motion for termination, it created a new road map for analyzing such claims. Most notably, it rejected the BIA’s analysis of the issue in Bermudez-Cota. It is wondered whether another circuit might be persuaded to adopt the reasoning of this decision (which I liken to a ball that looks like it might be a home run before hooking foul at the last moment) but differ on whether the issuance of the Pereira decision would form a legitimate basis for allowing the raising a late objection.

Not content with its ruling on the jurisdictional issue, the BIA returned to the narrower issue in Pereira in a May 1 precedent, Matter of Mendoza-Hernandez and Capula-Cortez, in which the Board held that the two-step rule rejected in Pereira is not only sufficient for broader jurisdictional purposes, but remarkably, is also sufficient to trigger the stop-time rule. The degree of chutzpah involved in reaching a decision directly at odds with the Supreme Court’s holding was so great that a sharply-divided Board made the case its first en banc decision in 10 years, revealing a 9 to 6 split among its permanent judges.

In the current issue of the American Bar Association’s Judges’ Journal, Richard J. Pierce, Jr., a law professor at George Washington University discusses the right of the president to remove officers within the federal government at will. (The article has been reprinted here on the website of my friend and colleague Paul Schmidt). Using the example of immigration judges, Prof. Pierce argues of the need to protect those performing an adjudicatory function from at-will removal “in order to reduce the risk that they will adjudicatory hearings in ways that reflect pro-government bias in violation of due process.” Prof. Pierce cites the present danger under a president and attorney general who have expressed strong anti-immigrant views “and have applied extraordinary pressure on IJs to deny applications for asylum.” Prof. Pierce opines that it is unrealistic to expect all immigration judges to be able to withstand such pressure. I believe that Mendoza-Hernandez is a perfect example of this. If only two of the nine Board Members in the majority ruled as they did out of fear of repercussions from the Attorney General, such pressure effectively changed the outcome of the decision. I feel strongly that this in fact happened.

The Ninth Circuit took only three weeks to reverse the Board’s decision. The circuit court ruled to the contrary that a subsequent hearing notice does not trigger the stop-time rule. The court also held that it owes no deference to the BIA’s interpretation of Supreme Court decisions; that the BIA ignored the plain text of the statute it claimed to be interpreting; and that the BIA relied on case law that could not be reconciled with the Supreme Court’s decision in Pereira. As the BIA will undoubtedly continue to apply its erroneous decision outside of the Ninth Circuit, it is hoped that the other circuits will quickly follow the Ninth Circuit’s lead. Sadly, the majority of the BIA’s judges have signaled that they will not act as neutral arbiters and afford due process. It is left to the circuit courts to provide the necessary correction.

For my recent commentary on the BIA’s Pereira interpretations and the Ninth Circuit’s rough treatment of Hernandez-Mendoza see:COURTS: As BIA Continues To Squeeze The Life Out Of Pereira, 9th Circuit Finally Pushes Back — Why The “Lost Art” Of BIA En Banc Review & Dissent Is So Essential To Due Process & Fundamental Fairness!May 28, 2019

BETH FERTIG @ WNYC/NPR: Judges Under Artificially Enhanced Stress: A Portrait Of The Newer Judges At The New York Immigration Court

https://www.wnyc.org/story/presiding-under-pressure/

On a weekday morning inside 26 Federal Plaza, you’ll see hundreds of people waiting in lines outside the small immigration courtrooms housed on the 12th and 14th floors. These hallways and courtrooms have no windows, making the place feel even more claustrophobic as guards remind everyone to stand against the walls to avoid blocking traffic.

In this bureaucratic setting, you’ll meet people from Central America, China, India and Eastern Europe all trying to stay in the U.S. Parents clutch the tiny hands of toddlers who want to run and play. Inside the court rooms, mothers hold crying babies on their laps and parents with large families cluster their children around them once they’re seated before a judge.

It’s a pressure cooker. Not only because each immigrant’s fate eventually will be decided here, but because judges complain their jobs have never been busier or more politicized. There’s a backlog of almost 900,000 cases, according to TRAC. The Justice Department, which oversees the immigration court system, established a quota for judges to complete 700 cases per year, an especially high hurdle in New York City, according to a WNYC analysis, because it’s the nation’s busiest immigration court. Meanwhile, the judges have new constraints in their ability to grant asylum because former Attorney General Jeff Sessions decided certain cases are not eligible. Judges are now granting asylum less often — even in New York, where immigrants historically had an easier time winning. Many judges and lawyers believe these actions show how the immigration court is becoming a vehicle for President Trump’s immigration agenda.

In a city where about 40 percent of residents were born abroad, New Yorkers have passionate views on immigration. Yet, few get to see where immigrants learn an often life-or-death decision. Trials are closed to the public, and sitting judges are not allowed to speak to the media. WNYC spent months in the main immigration court at Federal Plaza observing hearings to see how judges are handling new pressures, and how they interact with immigrants and lawyers (most of whom wanted to remain anonymous because they don’t want to hurt their cases). We focused on new judges who have taken the bench since Trump became president.

Here is what we learned.

Judges Who Worked for ICE or the Justice Department

Judges Lena Golovnin, Maria Lurye, Lisa Ling and Jem Sponzo.

(Jane Rosenberg for WNYC)

Eighteen judges in New York City started since Trump took office — almost half of all immigration judges here. Those new hires are under probation their first two years, putting them under extra pressure to meet priorities set by the Justice Department. Eight judges were lawyers at Immigration and Customs Enforcementand another had a similar role at the Justice Department. Their old jobs were to make the government’s case for deporting immigrants. Now, they’re supposed to be neutral adjudicators.

Lena Golovnin worked for ICE before starting as a judge in August 2018. From the bench, she speaks briskly and is very polite when handling 50-100 procedural hearings in a morning, typical for New York judges. Judges also schedule trial dates during these hearings but the backlog is so long, some won’t happen until 2023.

During a visit to her courtroom in December, Golovnin was stern with an attorney whose 16-year-old client didn’t provide school records to excuse himself from court that day. Minors don’t have to come to court if they’re enrolled in school, but proof is needed. “I’m not happy,” Golovnin said, noting the boy could have asked his school to fax the records to court.

The boy’s lawyer asked for an extra day to provide the records, but the government trial attorney objected. Golovnin then ordered the boy removed in absentia. This did not mean he’d be immediately deported because his lawyer could apply to reopen the case. But several attorneys and former judges said this was harsh, and that a more seasoned judge would have given the lawyer and client an extra day.

Some immigration lawyers worry too many judges come from ICE, but they acknowledge that experience doesn’t automatically bias them against immigrants. One lawyer called Golovnin a “delightful person” who should be a good judge. The Justice Department had a history long before Trump of hiring ICE attorneys as judges because of their immigration trial experience.

“I would much rather have a trial attorney as a judge,” said Stan Weber, a former ICE attorney who is now an immigration lawyer in Brooklyn. “I know that personally,” he said, adding that of the former ICE trial attorneys on the bench, “many of them I helped train.”

It’s difficult to measure which judges are more favorable to immigrants, but one factor is how often they grant asylum. This data is collected by TRAC and updated once a year. Not all new judges had completed enough cases to measure, but others did.

Judge Jem Sponzo came from the Justice Department’s Office of Immigration Litigation. She was appointed at the end of the Obama administration and took the bench in 2017. TRAC calculated she grants asylum about 69 percent of the time — a little lower than average for New York City’s court, which was more than 80 percent before Trump took office. Another judge, Paula Donnolo, had a grant rate of 80 percent. She left suddenly in March before her two-year probation period ended. Neither the Justice Department, Donnolo nor her union would comment.

Judges Donald Thompson, Michael McFarland, Cynthia Gordon and James McCarthy all used to work for ICE.

(Jane Rosenberg for WNYC)

Judge James McCarthy started in July 2017 and his asylum grant rate is 36 percent. McCarthy can seem gruff and no nonsense but he has a hearty laugh. In December, one attorney had a complicated case involving two teenage brothers in foster care, neither of whom came to court. When McCarthy gave the boys another court date, the government’s lawyer objected to granting them extra time without a prior discussion. The judge ignored this objection, adding “it’s in the best interest of the children” for them to get another day in court.

He also pushed back at a government lawyer’s line of questioning during an African man’s deportation trial. The wife testified that her husband had become more mature since committing minor crimes in his youth plus a felony conviction for robbery. The government lawyer asked her, “Have you ever heard the expression ‘talk is cheap’?” Judge McCarthy reproached her with, “that’s not a question.”

According to TRAC, Judge Donald Thompson granted asylum to 75 percent of immigrants in the last year. Not surprisingly, immigration lawyers call him “a wonderful judge.” One attorney in Thompson’s courtroom was representing a Nigerian woman seeking asylum, because she claimed to be a victim of female genital mutilation. She was given a trial date in May 2021. When the attorney expressed a desire to go sooner, Thompson found a date in September.

Taramatee Nohire came to Judge Lisa Ling’s court one day in December. She’s seeking asylum because she claims she’ll be persecuted in her native Trinidad for being a Kali worshipper. “I was a bit nervous,” she said, about going to immigration court. She was still collecting documents that are hard to obtain. “That also made me have anxiety,” she added. Her attorney, Pertinderjit Hora, was glad when Ling scheduled the trial for November, giving her more time to prepare the case. She expected the newly-minted judge to be scheduling cases even sooner.

In trials, judges have to listen to hours of testimony by immigrants and their witnesses — often with the help of a translator. During one asylum trial, Judge Cynthia Gordon asked many detailed questions of a Central American woman who claimed she was a victim of domestic abuse. The woman’s attorney said the judge’s questions made it feel like there were two trial attorneys in the room.

Another judge who formerly worked for ICE, Susan Beschta, started as a punk rocker before becoming a lawyer. She was hired last fall and died this month.

Judges Who Used to Represent Immigrants

Judges Howard Hom, Maria Navarro and Charles Conroy.

(Jane Rosenberg for WNYC)

Although the Department of Justice selects many ICE attorneys as judges, it also chooses lawyers who have represented immigrants, as well as those who have worked in various government agencies.

Judge Charles Conroy worked for the Legal Aid Society and was an immigration lawyer in private practice. He wrote a play called “Removal” that was performed at the Manhattan Repertory Theatre in 2015. It was described as a legal drama on its website.

“Two immigrants find themselves caught up in America’s deportation system — a Haitian escaping the torture he suffered back home at the hands of his government and a mentally ill Cambodian brought to the U.S. as a young child decades ago. Their attorney, Jennifer Coral, fights to keep them both in the U.S., but their common struggle opens old wounds and exposes a deep political and cultural rift in America.”

Immigration lawyers expected Conroy would often rule in their favor. However, since taking the bench in 2017, TRAC calculated that he denied asylum about half the time.

In court, Conroy seemed focused on moving cases as expeditiously as possible. He spoke quickly and rarely looked up from his desk. He reminded each lawyer which documents they needed to take before they leave. One lawyer said, “He will not bend at all accepting documents that are late.”

But another immigration lawyer called him, “a nearly perfect judge. Impartial, smart, efficient and knows the law.”

Many lawyers said they have a good shot with Judge Maria Navarro, who also worked for the Legal Aid Society. She has an asylum grant rate of 85.5 percent.

Another new judge, Howard Hom, worked as an immigration attorney. But he was also an administrative law judge for California and a trial attorney with the former Immigration and Naturalization Service.

Judges With No Immigration Trial Experience

Judges Samuel Factor, Oshea Spencer and Brian Palmer.

(Jane Rosenberg for WNYC)

Last November, the Justice Department issued a memo requiring judges to expedite family cases and complete their trials within a year or less. Most appear to be families from Central America who crossed the border in the past year. Their cases are often assigned to new judges who have more room on their calendars. Some of these judges had no prior immigration experience.

Judge Oshea Denise Spencer was an attorney with the Public Utility Commission of Texas before becoming an immigration judge last October. She was assigned many of the family unit cases the Justice Department wants completed quickly. In mid-December, she told one attorney representing a Honduran mother and son that she wanted to move their asylum trial from May to March. The attorney objected because she’s juggling so many cases at her busy nonprofit. “It would be a violation of due process,” she said. Spencer let the attorney keep her original date.

Judge Samuel Factor was an administrative law judge with New York State Office of Temporary and Disability Assistance before becoming an immigration judge in October, 2018. By December, he was so busy he was scheduling trials in August 2020. “Give me 15 minutes we’ll be in 2021,” he joked to an attorney. He then apologized to another attorney for needing to schedule a trial in 2021. But in a family case involving a woman and child from Guatemala, he scheduled the trial much sooner, in October.

Judge Brian Palmer was previously an attorney, judge and commanding officer in the U.S. Marine Corps before taking the bench last October. Some immigration lawyers wonder why he’d want the job.

“On the Brink of Collapse?”

This year, the American Bar Association declared the U.S. immigration courts “on the brink of collapse.” It cited the quota system, and new rules from former Attorney General Sessions that took away judges’ ability to control their dockets. Meanwhile, the backlog grows as more migrants arrive at the border and some cases get delayed.

According to data obtained by WNYC, 14,450 hearings were adjourned in fiscal year 2018 because the judges couldn’t finish them — an increase from 9,181 from the previous year. More than 1,700 of those adjournments were in New York City. And there aren’t enough translators. More than 5,300 hearings were adjourned in fiscal year 2018 because no interpreter was scheduled, an increase from 3,787 the previous year.

The Executive Office for Immigration Review, a division of the Justice Department which runs the nation’s immigration courts, said those numbers aren’t even half of 1 percent of all 1.3 million hearings that year.

Nonetheless, these problems do affect the flow of a courtroom. In December, Judge Howard Hom was scheduling cases involving Punjabi speakers later than others because he couldn’t get a translator until September. Another judge, Maria Lurye, decided to group her 47 cases on a morning in March to make them move more efficiently. She started by calling all attorneys whose clients were seeking asylum.

“Are all of your clients here today?” Lurye asked. “Yes,” eight lawyers replied in unison. She then gave them different trial dates in April 2022, without taking individual pleadings. After that, she formed a group for other cases that were similar. The judge was able to see about 17 cases in 90 minutes, slightly faster than without the groupings.

Ashley Tabaddor, president of the National Association of Immigration Judges, described her members as being under a huge strain. “We are absolutely seeing some of the lowest morale and anxiety that’s completely unprecedented,” she said. The union leader also said the quotas have only made things worse because they risk sacrificing due process for expediency. Judges now see dashboards on their computers showing in red, yellow and green, indicating if they’re on target for their case completion goals.

Two examples of the dashboards the Justice Department uses to monitor an immigration judge’s case completion rate.

(Courtesy of National Association of Immigration Judges)

In a congressional subcommittee hearing, Executive Office for Immigration Review Director James McHenry defended the quotas. He said immigration judges completed more cases in Fiscal Year 2018 than in any year since 2011. He called this a “direct refutation” of critics who claim judges lack the integrity and competence “to resolve cases in both a timely and impartial manner.”

But because of the ways in which President Trump’s Justice Department is shaping the immigration court, one New York City immigration lawyer, Jake LaRaus, said it is “at best a kangaroo court.”

Former New York immigration judge Jeffrey Chase said, “All moves made by this administration must be viewed as pieces in a puzzle designed to erode the independence of immigration judges in order to allow the administration to better control case outcomes to conform with its political goals.”

This month, the judges union and a coalition of former judges each wrote stern letters to the Justice Department for releasing “wildly inaccurate and misleading information” in a fact sheet it released to the media about the courts.

A New Path for Immigration Court

An empty judge’s chair in New York City’s immigration court.

(Jane Rosenberg for WNYC)

The judges’ union wants to take the immigration court out of the Executive Branch and make it independent, like tax and bankruptcy courts. These are called Article Icourts. Congress would have to approve this change.

The Federal Bar Association has drafted model legislation for an Article I court. Judges would have fixed terms, and they’d be able to hold lawyers in contempt. Though this won’t solve the backlog problem, many academics and immigration lawyers support the plan because it would free the immigration court from the Justice Department’s bureaucracy and politics.

The Trump administration opposes the proposal. The Executive Office for Immigration Review said no organization has studied the cost or fully explored the ramifications. It says it’s solving the court’s backlog with quotas and by hiring 200 new judges, through new positions and filling vacancies. But nationally, there are just 435 judges.

An independent Article I court won’t be an easy sell in Congress, either. Elizabeth Stevens, who helped draft the Federal Bar Association’s proposal for the immigration court and previously worked in the Justice Department, said the only hope is for supporters to focus on courtroom efficiency.

“If it becomes politicized it becomes another issue of comprehensive immigration reform,” she warned.

There’s another immigration court in downtown Manhattan, in a federal building on Varick Street. It was previously just for immigrants held in detention, but with Federal Plaza running out of room, the government opened new courtrooms at the Varick location in March.

Two new judges, Conroy and Ling, moved to Varick Street. There are also four brand new judges who started this spring. Two of them previously worked for ICE. One was an assistant district attorney in Suffolk County and the other was a domestic relations magistrate in Trumball, Ohio.

Varick Street has been in the news because of a lawsuit. Hearings there are held by video for detainees. Now, the trial attorneys at regular hearings appear by video. Immigration lawyers have complained about this process.

The Executive Office for Immigration Review is planning to open more courtrooms in New York this year. It would like to hire 100 more judges nationally in the next fiscal year. The judges union believes it needs hundreds more than that to manage the backlog.

PWS

05-22-19

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