Honorable A. Ashley Tabaddor – Page 4 – immigrationcourtside.com

GONZO’S WORLD: RECENT ARTICLES SHOW HOW SESSIONS’S SHOCKINGLY INAPPROPRIATE REMARKS TO NEW IMMIGRATION JUDGES VIOLATED EOIR CODE OF JUDICIAL ETHICS, SHOWED DISRESPECT FOR THE LAW, AND VIOLATED THE FUNDAMENTAL RULES OF GOOD IMMIGRATION JUDGING BY DIRECTING JUDGES NOT TO BE SYMPATHETIC TO REFUGEES! – TURNING REFUGEE LAW AND HISTORY ON ITS HEAD!

https://www.buzzfeednews.com/article/hamedaleaziz/sessions-new-immigration-judges-sympathy

Hamed Aleaziz reports for BuzzFeed News:

Attorney General Jeff Sessions on Monday warned incoming immigration judges that lawyers representing immigrants are trying to get around the law like “water seeping through an earthen dam” and that their responsibility is to not let them and instead deliver a “secure” border and a “lawful system” that “actually works.”

He also cautioned the judges against allowing sympathy for the people appearing before them, which might cause them to make decisions contrary to what the law requires.

“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law — even in tough cases,” he said.

The comments immediately drew criticism from the union that represents the judges and from former judges.

“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” said Dana Marks, a spokesperson for the National Association of Immigration Judges and an immigration judge in San Francisco. “It did appear to be a one-sided argument made by a prosecutor.”

Jeffrey Chase, a former immigration judge and now an immigration attorney, said the comments overlooked the fact that asylum laws were designed to be flexible.

“We possess brains and hearts, not just one or the other,” he said. It is sympathy, Chase said, that often spurs legal theories that advance the law in asylum law, civil rights, and criminal law.

“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”

Unlike other US courts, immigration judges are employees of the Justice Department whose evaluations are based on guidelines Sessions lays out. In that role, Sessions already has instituted case quotas, restricted the types of cases for which asylum can be granted, and limited when judges can indefinitely suspend certain cases. Advocates believe the Trump administration has made these decisions in order to speed up deportations. His comments on sympathy to immigrants appeared intended to bolster a decision he made recently to limit when asylum can be granted out of fear of domestic or gang violence.

Sessions also told the judges that they should focus on maximum production and urged them to get “imaginative and inventive” with their high caseload. The courts currently have a backlog of hundreds of thousands of deportation cases.

Ashley Tabaddor, an immigration judge in Los Angeles and the president of the National Association of Immigration Judges, which represents the nation’s 350 immigration judges, said Sessions’ speech was notable for its lack of any mention of fairness or due process. “We cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role,” said Tabaddor.

The union has long called for its separation from the Department of Justice in order to be truly independent of political decision-making.

“Good lawyers, using all of their talents and skill, work every day — like water seeping through an earthen dam — to get around the plain words of the [Immigration and Nationality Act] to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty,” Sessions said in a speech to 44 newly hired judges who were being trained in Falls Church, Virginia.

He ended his speech by telling the incoming judges that the American people had spoken in laws and “in our elections.”

“They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them,” Sessions said.

From the beginning of October through the end of June, immigration judges had granted around 22% of asylum cases and denied around 41% of cases. The rest of the cases were closed. The rate is similar to previous fiscal years. Sessions’ decision to limit the types of cases in which asylum should be granted was made in mid-June.

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https://www.dailymail.co.uk/news/article-6152755/The-U-S-increase-number-immigration-judges-50-percent-BALLOONING-backlog.html

Valerie Bauman reports for The Daily Mail:

Attorney General Jeff Sessions said Monday that he plans to increase the number of immigration judges in the U.S. by 50 percent by the end of Fiscal Year 2018 – part of the administration’s effort to take on a case backlog that has ballooned under the Trump administration’s zero-tolerance policy.

The number of immigration cases on hold in the U.S. has risen 38 percent since Trump took office, with 746,049 pending immigration cases as of July 31, up from 542,411 at the end of January 2017, according to an analysis of government data by the Transactional Records Access Clearinghouse at Syracuse University.

Sessions asserted his authority on Monday during remarks welcoming 44 newly hired immigration judges – the largest class in U.S. history – noting that they must operate under his supervision and perform the duties that he prescribes.

As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload,’ he said. ‘I do not apologize for expecting you to perform, at a high level, efficiently and effectively.’

The attorney general said the system for seeking asylum in the U.S. has been ‘abused for years’ and while the judges must respect immigrants’ rights, they should also ‘reject unjustified and sometimes blatantly fake claims.’

Sessions also had harsh words for the attorneys who represent immigrants, describing them as ‘water seeping through an earthen dam,’ who attempt to ‘get around’ immigration laws.

The message follows a series of policy changes that have put increasing pressure on immigration judges to close cases quickly while taking away their authority to prioritize cases based on their own judgment.

‘We’re clearly moving toward a point where there isn’t going to be judicial independence in the immigration courts anymore,’ former immigration Judge Jeffrey S. Chase told DailyMail.com.

U.S. Attorney General Jeff Sessions delivers remarks to the incoming class of immigration judges in Falls Church, Virginia

For example, the Justice Department earlier this year announced a quota system requiring judges to clear at least 700 cases annually in order to be rated as ‘satisfactory’ on their performance evaluations.

Quotas ‘would threaten the integrity and independence of the court and potentially increase the court’s backlog,’ according to the National Association of Immigration Judges, the union representing the judges.

Sessions also issued a decision earlier this year that takes away the authority of immigration judges to administratively close cases, a process that allowed a judge to indefinitely close low-priority cases to make room on the docket for more serious offenses – such as those involving violent criminals and gang members.

From Oct. 1, 2011 through Sept. 30, 2017, 215,285 cases were administratively closed, according to Sessions. Now experts say those cases will be added back to the dockets, further compounding the backlog.

In addition, Sessions issued a legal opinion earlier this year designed to make it impossible for victims of domestic violence and gangs to seek asylum in the U.S. – which some critics say will limit judicial independence.

Legal experts said Monday that Session’s speech was designed to assert his authority over the judges and impress upon them the importance of issuing rulings consistent with his own philosophy.

‘That was an enforcement speech,’ former immigration Judge Paul Wickham Schmidt told DailyMail.com. ‘The whole implication that somehow (people seeking asylum) are bending the law and that there are attorneys trying to go through loopholes is the opposite of the truth … The losers in these asylum cases aren’t simply migrants trying to game the system. They are people facing real dangers when they go home.’

Sessions did not shy away from calling on the new judges to rise to the challenges before them.

‘Let me say this clearly: it is perfectly legitimate, moral, and decent for a nation to have a legal system of immigration and to enforce the system it adopts,’ Sessions said in his prepared remarks. ‘No great and prosperous nation can have both a generous welfare system and open borders. Such a policy is both radical and dangerous.’

Sessions has said that he has introduced a ‘streamlined’ approach for hiring judges – a historically lengthy process – to bring the average hiring time down to 266 days, compared from 742 days in 2017, according to Department of Justice data.

Immigration judges are appointed by the U.S. attorney general. The new additions bring the total number of immigration judges in the U.S. to 397.

OK. Now let’s get beyond Sessions’s White Nationalist screed and get some truth about:

The ethical standards for Immigration Judges;
The real intent of the Refugee Act of 19809; and
What being a fair and impartial immigration judge is really about.

Sessions’s Statement Favoring A Party To Immigration Court Proceedings And Showing Disrespect For The Opposing Party & Their Representatives Violates The EOIR Ethical Code By Showing An “Appearance of Bias.”

Let’s remember that under the strange rules governing EOIR and the Immigration Courts within the USDOJ, Attorney General Jeff Sessions can and has taken on the role as a judicial adjudicator in an individual cases, changing results and setting precedent for the BIA and the Immigration Judges.

So, what does the EOIR Code of Judicial Ethics say about judicial conduct?

V. Impartiality (5 C.F.R. § 2635.101(b)(8))

An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of aparticular case. An Immigration Judge should encourage and facilitate pro bono representation. An Immigration Judge may grant procedural priorities to lawyers providing pro bono legal services in accordance with Operating Procedures and Policies Memorandum (OPPM) 08-01.

VI. Appearance of Impropriety (5 C.F.R. § 2635.101(b)(14))

An Immigration Judge shall endeavor to avoid any actions that, in thejudgment of a reasonable person with knowledge of the relevant facts, wouldcreate the appearance that he or she is violating the law or applicable ethical standards.

. . . .

IX. Acting with judicial Temperament and Professionalism

An Immigration Judge should be patient, dignified, and courteous, and should act in a professional manner towards all litigants, witnesses, lawyers and others with whom the Immigration Judge deals in his or her official capacity, and should not, in the performance of official duties, by words or conduct, manifest improper bias or prejudice.

Note: An Immigration Judge should be alert to avoid behavior, including inappropriate demeanor, which may be perceived as biased. The test forappearance of impropriety is whether the conduct would create in the mind of a reasonable person with knowledge of the relevant facts the belief that the Immigration Judge’s ability to carry out his or her responsibilities with integrity, impartiality, and competence is impaired.

Note: An Immigration Judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the immigration process into disrepute. Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant reference to personal characteristics. Moreover, an Immigration Judge must avoid conduct that may reasonably be perceived as prejudiced or biased. Immigration Judges are not precluded from making legitimate reference to any of the above listed factors, or similar factors, when they are relevant to an issue in a proceeding.

Note: An Immigration Judge has the authority to regulate the course ofthe hearing. See 8 C.F.R. §§ 1240.1(c), 1240.9. Nothing herein prohibits theJudge from doing so. It is recognized that at times an Immigration Judgemust be firm and decisive to maintain courtroom control.

Wow. Sure sounds to me like Sessions is in clear violation of each of these!

Let’s get down to “brass tacks” here. Imagine that you are a represented asylum applicant from the Northern Triangle with an upcoming hearing. The morning of your hearing, you read the statement that Jeff Sessions made to the new Immigration Judges.

That afternoon, when you appear at the hearing you find that none other than Jeff Sessions is yo\ur U.S. Immigration Judge. So, do you think that you and your attorney are going to get a “fair and impartial” hearing, including a possible favorable exercise of discretion” on your asylum application, as our Constitution and laws require? Of course not!

But remember, all asylum applicants are appearing before “judges” who are actually employees of Jeff Sessions. Each judge knows that he or she owes career longevity to pleasing Sessions and his minions. Each judge also knows that at any time Sessions can arbitrarily reach down into the system, without explanation or notice, and “certify” any case or decision to himself.

Clearly, after having publicly taken a pro-DHS, pro-enforcement, anti-asylum applicant, anti-private attorney position, Sessions should not ethically have any role whatsoever in the outcome of cases in the Immigration Court System. But, clearly, he does have such a role. A big one!

If any sitting Immigration Judge conducted himself or herself the way Sessions just did, they would be suspended immediately. How does Sessions get away with disregarding judicial ethics in his own system?

The Refugee Act of 1980 Implements Our International Treaty Obligations Under the UN Convention & Protocol Relating To The Status Of Refugees and Is Actually About “Protecting” Those In Danger, Not Finding Ways Of “Rejecting” Their Claims.

Let’s hear from a former legislator who played a key role in developing and enacting the Refugee Act or 1980, former Representative Elizabeth Holtzman (D-NY) who at that time was the Chair of the House Immigration Subcommittee. This is from the letter that Holtzman recently wrote to Secretary Nielsen resigning from the DHS Detention Advisory Committee because of its perversion of the law, particularly the illegal family separation policy engineered by Sessions.

What is so astonishing to me is how much this country has changed since 1980, when I was privileged as chair of the House Immigration Subcommittee to co-author with Senator Ted Kennedy the Refugee Act of 1980. The Act — which was adopted without serious controversy — created a framework for the regular admission of refugees to the U.S. The immediate stimulus for the bill was the huge exodus of boat people leaving Vietnam. Though the memory of the Holocaust played a role, too, particularly the knowledge that the U.S. could have rescued so many people from the hands of the Nazis but did not. The Refugee Act marked our commitment as a nation to welcoming persons fleeing persecution anywhere.

In those days, the U.S. accepted large numbers of refugees — about 750,000 arrived from Vietnam; 600,000 entered from Cuba; and hundreds of thousands of Jews and their relatives came from the Soviet Union. The thought that the U.S. is frightened today by the presence of an additional 2,000 or so children and parents from Central America is laughable and appalling.

In those days, the U.S. also showed world leadership on refugee resettlement. For example, America understood that it bore a special responsibility for the refugees fleeing Vietnam because of its long involvement in the Vietnam War. Obviously, we could not absorb all the refugees, but our government worked hard to get resettlement solutions for all. First, it persuaded the countries neighboring Vietnam to which people fled in small boats not to push those refugees back out to sea, where they would confront pirates, drowning and other terrible dangers. (I know because I participated in speaking to those countries.) Then, the U.S. organized a world conference in Geneva, where countries agreed to accept specific numbers of refugees. The U.S. was able to induce other countries to act because it took the largest share. Our country’s leadership turned the boat people crisis into one of the most successful refugee resettlement programs ever.

Now, in response to the influx of (mostly) women and their children fleeing horrific violence in Central America, the U.S. government can think only of building a wall and unlawfully separating children from their parents — something I call child kidnapping, plain and simple — as a deterrent to keep others from coming to the US. How far we have we fallen.

And how easy it would be to do the right thing. The U.S. needs to start with recognizing that it once again has a special responsibility for a dire situation, this time in the Northern Triangle. We overthrew the democratically elected government in Guatemala, which was replaced by one right-wing government after another, including one that committed genocide against the indigenous population. In Honduras and El Salvador, we similarly propped up right-wing governments that did nothing for their people, leaving them without effective governance in place. The fact that gangs have been able to terrorize the population with impunity is a result.

More must be done as well. We should reinstate the Central American Minors Refugee/Parole Program, established under President Obama and cancelled by the Trump Administration, whereby people could apply in their home countries for admission as refugees to the U.S. without facing the perils of the overland trip. Second, we should try to get Canada and other countries in South America to accept refugees from the Northern Triangle countries, reducing the burden on us. To do this, we would have to agree to take a substantial number of refugees from the Northern Triangle countries as well. And then we should work to improve the governance in these countries, perhaps by involving the United Nations and nearby countries, such as Costa Rica.

Unfortunately, the chance of any such enlightened response toward refugees from the Northern Triangle seems remote. These countries probably fall into Trump’s stated “shithole” category. Plainly, the hostile attitude toward the refugees persists. For example, 463 parents may have been deported without their children. Apparently DHS Secretary Kirstjen Nielsen feels no responsibility for reuniting those with their parents, instead making the flimsy excuse that the parents wanted to leave them behind. While possibly true in a small number of instances, given the fact that many of the parents do not speak English, or even Spanish, but their indigenous language, it is more likely that a significant number of the parents had no idea of what was happening or how to get their children back. They may even have been coerced into leaving. In any case, Nielsen has a very poor record of truth-telling. On June 17, she insisted that “We do not have a policy of separating families at the border. Period.”

And the racist, contemptuous attitude of the Administration keeps showing. Just recently, before a conservative audience, Attorney General Jeff Sessions made a joke — a joke! — about separating children from their parents. (He also briefly joined in a chant of “Lock her up!”)

Most Americans, fortunately, have found the separation policy abhorrent. Those of us who do, need to press the Administration to find a more humane and more comprehensive solution, like our country has done in the past. But if the Administration continues the enforced separation policy, I hope that the courts will enforce their decisions, which have required reunification, by holding the Secretary and others in contempt if necessary. Congress should be called on to act by holding hearings and adopting censure resolutions. None of us can sit idly by when our government stoops to such racist, malign behavior.

Yes, with responsible leadership, it would be relatively easy to do the right thing here. But, it’s not going to happen with the “wrong people” like Donald Trump, Stephen Miller, Jeff Sessions, and Kristjen Nielsen in charge.

The real intent of the Refugee Act of 1980 was to give America the tools to take a leadership role in protecting individuals, particularly those flowing from situations we helped cause like the mess in the Northern Triangle. I’m sure that most of those involved in the bipartisan effort would be shocked by the overtly racist, restrictionist views being pawned off by Sessions as “following the law.” “I call BS” on Session’s perversion of protection laws.

Undoubtedly, cases like Matter of A-R-C-G-, incorrectly overruled by Sessions, actually substantially understated the case for protecting domestic violence victims. There is little doubt in my mind that under a proper interpretation “women in El Salvador” (or Guatemala or Honduras, or many other countries) satisfy the stated criteria for a “particular social group.”

Being a “woman in El Salvador” clearly is :

Immutable or fundamental to identity;
Particularized; and
Socially distinct.

Moreover, there is no legitimate doubt that the status of being a “woman in El Salvador” is often “at least one central reason” for the persecution. Nor is there any doubt that the Governments in the Northern Triangle are unwilling and unable to offer a reasonable level of protection to women abused because of class membership, Sessions’s largely fictional account of country conditions notwithstanding.

At some point, whether or not in my lifetime, some integrity will be re-injected into the legal definition by recognizing the obvious. It might come from Congress, a more qualified Executive, or the Courts. But, it will eventually come. The lack of recognition for women refugees, who perhaps make up a majority of the world’s refugees, is a symptom of the “old white guys” like Sessions who have controlled the system. But, that’s also likely to change in the future.

My esteemed colleague, retired U.S. Immigraton Judge Jeffrey S. Chase said it best:

“Sessions is characterizing decisions he personally disagrees with as being based on sympathy alone,” he said, “when in fact, those decisions were driven by sympathy but based on solid legal reasoning.”

The Proper Role Of a Good Immigration Judge Involves Sympathetic Understanding Of The Plight Of Refugees, What They Have Suffered, & The Systemic Burdens They Face in Presenting Claims.

Let’s see what some real judges who have had a role in the actually fairly adjudicating asylum claims have to say about the qualities of judging.

Here’s one of my favorite quotes from the late Seventh Circuit Judge Terence T. Evans in Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring) that sums up the essence of being a good Immigration Judge:

Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.

Or, check out this heartfelt statement from my former colleague Judge Thomas Snow, one of “Arlington’s Finest,” (who also, not incidentally, had served as the Acting Chief Immigration Judge and Acting Director of EOIR, as well as being a long-time Senior Executive in the USDOJ) in USA Today:

Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.

We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times we’ve seen similar fact patterns before.

We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions

And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.

Here’s a “pithier” one from my friend and colleague Judge Dana Leigh Marks, former President of the National Association of Immigration Judges (who also was the “winning attorney” representing the plaintiff in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)) — I was on the “losing” INS side that day):

[I]mmigration judges often feel asylum hearings are “like holding death penalty cases in traffic court.”

Finally, here’s my take on being an Immigration Judge after 45 years in the field, including stints at the BIA, the “Legacy INS,” private practice, and academics:

From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is alwayson public display, particularly in this “age of the Internet.” His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the “performing artist” aspect, rather than from a lack of pertinent legal knowledge.

Compare Sessions’s one-sided, biased outlook with the statements of those of us who have “walked the walk and talked the talk” — who have had to listen to the horrible stories, judge credibility, look at whether protection can legally be extended, and, on some occasions, look folks in the eye and tell them we have no choice but to send them back into situations where they clearly face death or danger.

Sympathetic understanding of refugees and the protection purposes of refugee, asylum, and CAT laws are absolutely essential to fair adjudication of asylum and other claims for relief under the Immigration Laws. And, clearly, under the UNHCR guidance, if one is going to err, it must be on the side of protection rather than rejection.

That’s why Jeff Sessions, a cruel, biased, and ignorant individual, lacking human understanding, sympathy, a sense of fundamental fairness, a commitment to Due Process, and genuine knowledge of the history and purposes of asylum laws has no business whatsoever being involved in immigration adjudication, let alone “heading” what is supposed to be a fair and impartial court system dedicated to “guaranteeing fairness and Due Process for all.”

Senator Elizabeth Warren tried to tell her colleagues and the rest of America the truth about Jeff Sessions and the horrible mistake they were making in putting such a famously unqualified man in charge of our Department of Justice. But, they wouldn’t listen. Now, refugees, families, and children, among his many victims, are paying the price.

Sessions closes with a final lie: that the American people spoke in the election in favor his White Nationalist policies. Whether Sessions acknowledges it or not, Donald Trump is a minority President. Millions more voted for Hillary Clinton and other candidates than they did for Trump.

Almost every legitimate poll shows that most Americans favor a more moderate immigration policy, one that admits refugees, promotes an orderly but generous legal immigration system, takes care of Dreamers, and controls the borders in a humane fashion as opposed to the extreme xenophobic restrictionist measures pimped by Sessions, Trump, Steven Miller, and the GOP far right. In particular, the separation of children, Sessions’s unlawful “brainchild,” has been immensely (and rightfully) unpopular.

Jeff Sessions has never spoken for the majority of Americans on immigration or almost anything else. Don’t let him get away with his noxious plans to destroy our justice system! Whether you are an Immigration Judge, a Government employee, or a private citizen, we all have an obligation to stand up to his disingenuous bullying and intentionally false, xenophobic, racially-motivated, unethical, scofflaw narrative.

PWS

09-11-18

HERE’S THE VIDEO LINK TO THE APRIL 18, 2018 SENATE HEARINGS ON IMMIGRATION COURT REFORM — SEE & HEAR JUDGE A. ASHLEY TABADDOR’S TESTIMONY AND FOLLOWING Q&A HERE!

Here’s the link to the hearing. I had to move the “time bar” at the bottom to about 28 minutes in before the “action” started. Thanks to both Laura Lynch of AILA and Nolan Rappaport for forwarding this to me.

https://www.judiciary.senate.gov/meetings/strengthening-and-reforming-americas-immigration-court-system

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PWS

04-19-18

“GANG OF 18” RETIRED IMMIGRATION JUDGES WEIGHS IN BEFORE SENATE JUDICIARY ON SESSIONS’S ABUSES OF DUE PROCESS & NEED FOR ARTICLE I COURT — NAIJ PRESIDENT JUDGE A. ASHLEY TABADDOR PRESENTS STUNNING EVIDENCE OF SESSIONS’S ALL OUT ATTACK ON JUDICIAL INDEPENDENCE, PROFESSONALISM, & FAIRNESS TO THOSE APPEARING BEFORE THESE COURTS!

With the help of the amazing Laura Lynch, Senior Policy Counsel at AILA (picture above), here’s the statement filed by our (ever-growing) “Gang of 18” Retired Judges:

Statement of Retired Immigration Judges and former members of the Board of Immigration Appeals

Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration

Hearing on “Strengthening and Reforming America’s Immigration Court System”

April 18, 2018

This statement for the record is submitted by retired immigration judges and former members of the Board of Immigration Appeals (BIA). Drawing upon our many years of combined service, we have an intimate knowledge of the operation of the immigration courts. Immigration judges and Board members are supposed to act as neutral arbiters; however, they are considered to be employees of the nation’s chief law enforcement agency, the U.S. Department of Justice (DOJ), rather than true judges. The DOJ is run by politically appointed law enforcement officials, making EOIR vulnerable to improper political pressures. In order to restore public confidence in the immigration court system and to insulate EOIR from political pressure, the immigration court system must be removed from the DOJ to an independent article I court structure that focuses on due process and efficient court administration.

For over a decade, the immigration courts have been severely underfunded when compared to the

budget increases that Congress has provided to immigration enforcement. EOIR has been unable to keep pace with the growing number of removal proceedings. The Trump administration has further contributed to this backlog, announcing broad new immigration enforcement priorities in January of 2017 that make almost everyone who is undocumented a priority for arrest. With the immigration court case backlog approaching 700,000 cases, we can all agree that our immigration court system is in crisis.

Instead of working to improve the immigration court system, DOJ and EOIR have issued policies that will threaten the integrity and independence of the immigration courts.

Imposing case completion quotas

On March 30th, the Director of EOIR announced that immigration judges will now be subject to case completion quotas. This unprecedented change will be effective October 1, 2018, and starting then, immigration judges will be subject to performance reviews (tied to job security and raises) that focus on meaningless numbers and disregard due process. An immigration judge should be evaluated based on the quality of her decisions, not the quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors. Poor decisions will also directly result in more appeals to the BIA and the Courts of Appeal, and more remands, causing more delays and running contrary to the goals of the Attorney General (AG).

Curbing use of docketing management tools such as use of continuances

On July 31, 2017, the Chief Immigration Judge issued a memorandum making it more difficult for judges to grant multiple continuances. This policy along with the imposition of case completion quotas heightens concerns that cases will be rushed through the immigration court system. Continuances are necessary in a

AILA Doc. No. 18041830. (Posted 4/18/18) 2

variety of circumstances, such as when an individual is facing deportation in immigration court while awaiting a decision by the U.S. Citizenship Immigration Services (USCIS) on a pending application. Examples of such applications are “U” visas for crime victims, I-601A waivers for unlawful presence, I-130 visa petitions for family members of residents or citizens, or I-751 applications for certain individuals married to U.S. citizens. By law, immigration judges cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. But the result of those applications may be outcome determinative in removal proceedings. To date, case law supports judges granting continuances, when it makes sense, in circumstances like these. However, under the new quota system, a judge could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of concern about completion numbers and job retention. That is not justice; it seems more like an assembly line. Circuit courts will not excuse due process violations based on immigration judges having to meet arbitrary completion goals.

The AG is taking dramatic steps to rewrite immigration law.

The AG recently utilized his authority to certify two BIA decisions to himself for review to examine a judges’ authority to utilize docket management tools including use of continuances and administrative closure. As described in our amicus brief, immigration judges have inherent powers (including the power to control their own dockets, and to administratively close cases as a means of exercising such control) delegated to them by Congress, and not the Attorney General. Such authority of judges to control their dockets has been recognized by the Supreme Court and lower federal courts. Both the issuance of continuances and administrative closure are important docket management tools that allow judges to manage high caseloads. The certification of these cases signals the AG’s intent to massively curtail judicial independence. The solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.

Additional Resources from Retired Immigration Judges and Former BIA Members

● Jeffrey S. Chase, The Need For an Independent Immigration Court, Jeffrey S. Chase Opinions/Analysis on Immigration Law, (Aug. 17, 2017), https://www.jeffreyschase.com/blog/2017/8/17/the-need-for-an-independent-immigration-court.

● Jeffrey S. Chase, IJs, Tiered Review and Completion Quotas, Jeffrey S. Chase Opinions/Analysis on Immigration Law, (Nov. 9, 2017), https://www.jeffreyschase.com/blog/2017/11/9/ijs-tiered-review-and-completion-quotas.

● Bruce Einhorn, Jeff Sessions wants to bribe judges to do his bidding, Washington Post, (Apr. 5, 2018), https://www.washingtonpost.com/opinions/jeff-sessions-wants-to-bribe-judges-to-do-his-bidding/2018/04/05/fd4bdc48-390a-11e8-acd5-35eac230e514_story.html?utm_term=.758f0b92e2e6.

● John F. Gossart, Time to fix our immigration courts, The Hill, (Feb. 26, 2014), http://thehill.com/blogs/congress-blog/judicial/199224-time-to-fix-our-immigration-courts.

● Lory Rosenberg, Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), ILW, (Mar. 6, 2018),http://blogs.ilw.com/entry.php?10427-Much-Sound-and-Fury-Matter-of-E-F-H-L-27-I-amp-N-Dec-226-(A-G-2018)

● Paul Wickham Schmidt, Retired Immigration Judge and Former Chairman of the BIA Responds to Implementation of Production Quotas, Immigration Courtside, (Apr. 4, 2018), http://www.aila.org/infonet/retired-immigration-judge-and-former-chairman

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● Paul Wickham Schmidt, We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?, Immigration Courtside, http://immigrationcourtside.com/we-need-an-article-i-united-states-immigration-court-now/.

● Robert Vinikoor, Take it From a Former Immigration Judge: Quotas Are a Bad Idea, Minsky, McCormick & Hallagan, P.C. Blog, (Apr. 12, 2018), https://www.mmhpc.com/2018/04/take-it-from-a-former-judge-quotas-for-immigration-judges-are-a-bad-idea/.

We appreciate the opportunity to provide this statement for the record and look forward to engaging as Congress considers reforming the immigration court system.

Contact with questions or concerns: Jeffrey Chase, jeffchase99@gmail.com.

Sincerely,

Honorable Steven R. Abrams

Honorable Patricia L. Buchanan

Honorable Sarah M. Burr

Honorable Jeffrey S. Chase

Honorable George T. Chew

Honorable Bruce J. Einhorn

Honorable Cecelia M. Espenoza

Honorable Noel Ferris

Honorable John F. Gossart, Jr.

Honorable William P. Joyce

Honorable Carol King

Honorable Elizabeth A. Lamb

Honorable Margaret McManus

Honorable Lory D. Rosenberg

Honorable Susan Roy

Honorable William Van Wyke

Honorable Paul W. Schmidt

Honorable Polly A. Webber

List of Retired Immigration Judges and Former BIA Members

The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.

The Honorable Patricia L. Buchanan served as an Immigration Judge in New York City from June 2015 to July 2017, having responsibility for a detained docket for more than a year and a half. From December 2003 to October 2014, she served in various roles within the Immigration Unit of the Civil Division of the United States Attorney’s Office for the Southern District of New York, including

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Assistant United States Attorney and Chief of the Immigration Unit. From 2001 to 2003 she served as a trial attorney in the Department of Justice, Civil Division, Office of Immigration Litigation in Washington, DC. From 1996 to 2001, she served as a trial attorney on a detained docket with the former Immigration and Naturalization Service in the New York District. During a significant period of her time as a federal court litigator, she authored a monograph analyzing hundreds of precedent decisions on process and procedural issues (including rights and limitations to continuances) in removal proceedings and presented at numerous DOJ and DHS trainings on due process issues. Prior to joining the Department of Justice, she worked as a Temporary and Volunteer Attorney at Westchester/Putnam Legal Services from 1995 to 1996 and worked at Mid-Hudson Legal Services from 1991 to 1995.

The Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

Honorable George T. Chew

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014

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and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Elizabeth A. Lamb was appointed to the immigration bench in 1992. Previously she served as EEO counsel to the St. Regis paper company and was of counsel to Catholic Charities in New York City for immigration matters. Before law school she served as press secretary for then Congressman Hugh L. Carey and later for commissioner Bess Myerson at the New York City Department of Consumer

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Affairs. Her first job after graduation from law school was for the New York State Department of Criminal Justice Services. She retired on January 6, 2018.

The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.

The Honorable William Van Wyke

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant

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Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.

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It was a great honor and privilege to be part of this distinguished group. To our other retired colleagues out there, we’re always more than happy to have join the group an continue the fight to “guarantee fairness and due process to all.” (Actually, the long-forgotten mission of EOIR). It also provides a great opportunity to chat online with each other and catch up on some of the amazing “post-bench” achievements of our colleagues.

And, once again, that’s to Laura Lynch without whose support, skill, and expertise, this effort could never have happened.

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Here’s the detailed and deeply disturbing statement of Judge A. Ashley Tabaddor, of the United States Immigration Court in Los Angeles, CA, in her capacity as President of the National Association of Immigration Judges (“NAIJ”). It’s impossible to read Judge Tabaddor’s heartfelt words without being totally outraged by the all-out assault on fairness to, and the human dignity of, those seeking justice from the Immigration Courts and those trying to help them present their cases; the intentional demeaning and de-professionalization of U.S. Immigration Judges struggling to provide impartial justice in a system intentionally rigged against it; the patently dishonest attempt to shift blame for the Immigration Court’s current dysfunction from the politicos who caused it to their victims; and the all out disrespect for truth, the law, ethics, our Constitution, and basic human rights and decency shown by Jeff Sessions.

Statement of

Judge A. Ashley Tabaddor, President

National Association of Immigration Judges

April 18, 2018

Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee

Hearing on “Strengthening and Reforming America’s Immigration Court System”

INTRODUCTION

I am Ashley Tabaddor, President of the National Association of Immigration Judges (NAIJ), and an Immigration Judge.1 For the past twelve years I have served in the Los Angeles Immigration Court. My current pending case load is approximately 2000 cases. Chairman Cornyn, Ranking Member Durbin and members of the Subcommittee, thank you for the opportunity to testify before the Subcommittee.

1 I am speaking in my capacity as President of the NAIJ and not as employee or representative of the U.S. Department of Justice, Executive Office for Immigration Review (EOIR). The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent my personal opinions, which were formed after extensive consultation with the membership of NAIJ.

I am pleased to represent the NAIJ, a non-partisan, non-profit, voluntary association of United States Immigration Judges. Since 1979, the NAIJ has been the recognized representative of Immigration Judges for collective bargaining purposes. Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security (DHS) are conducted. We work to improve our court system through: educating the public, legal community and media; testimony at congressional oversight hearings; and advocating for the integrity and independence of the Immigration Courts and Immigration Court reform. We also seek to improve the Court system and protect the interests of our members, collectively and individually, through dynamic liaison activities with management, formal and informal grievances, and collective bargaining. In addition, we represent Immigration Judges in disciplinary proceedings, seeking to protect judges against 2

unwarranted discipline and to assure that when discipline must be imposed it is imposed in a manner that is fair and serves the public interest.

I am here today to discuss urgently needed Immigration Court Reform and the unprecedented challenges facing the Immigration Courts and Immigration Judges. Immigration Courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs. I will be focusing my discussion on the inherent structural defect of the Immigration Court system, the Department of Justice’s (DOJ) misguided “solutions” to the current court backlog, and proposed solutions to the challenges facing the court, including the only enduring solution: restructuring of the Immigration Court as an independent Article I Court.

THE FUNDAMENTAL FLAW

⦁ The Placement of a Neutral Court in a Law Enforcement Agency

The inherent conflict present in pairing the law enforcement mission of the DOJ with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system and may well lead to the virtual implosion of this vital Court.

Immigration Judges make the life-changing decisions on whether or not non-citizens are allowed to remain in the United States. Presently, approximately 330 Immigration Judges in the United States are responsible for adjudicating almost 700,000 cases. The work is hard. The law is complicated; the labyrinth of rules and regulations require expertise in an arcane field of law. The stories people share in court are frequently traumatic and emotions are high because the stakes are so dire. The proceedings are considered “civil” cases, in contrast to “criminal” cases. Thus, people are not provided attorneys and must either pay for one, find a volunteer, or represent themselves. Last year, approximately 40 percent of the individuals who appeared in our courtrooms represented themselves, a figure that rises to 85 percent when only detained cases are considered. Further complicating the situation, only 15 percent of immigration cases are conducted in the English language. Finally, our courtrooms and systems lack modern technology and unlike federal courts, the Immigration Courts still rely on paper records.

But here’s the core of the problem: Immigration Judges wear two hats. On the one hand, we are statutorily recognized as “Immigration Judges,” wear judicial robes, and are charged with conducting ourselves consistently with canons of judicial ethics and conduct, in order to ensure our role as impartial decision-makers in the cases over which we preside. In every sense of the word, on a daily basis, when presiding over our case in our courts, we are judges: we rule on the admissibility of evidence and legal objections, make factual findings and conclusions of law, and 3

decide the fate of thousands of respondents each year. Last year, our decisions were final and unreviewed in 91% of the cases we decided.

In addition, and in contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.

At first glance, this may not seem too damaging; after all, our government structure is resilient and must respond to changes demanded by the public. However, this organizational structure is the fundamental root cause of the conflicts and challenges that have plagued the Immigration Court system since its inception and now threatens to cripple it entirely because the very mission of a neutral court is to maintain balance despite political pressures.

⦁ Politicization of the Immigration Courts

Examples of where this conflict of interest has led to the infringement on the independence of the Immigration Court are numerous throughout the past decades and under administrations of both political parties. It is no secret that the DHS, whose attorneys appear before the Court, regularly engages in ex-parte communication with the DOJ. On the macro level, these communications have directly led to the use of the Immigration Court system as a political tool in furtherance of law enforcement policies.

One common use of the Courts as a political tool has been the incessant docket shuffling in furtherance of various law enforcement “priorities.” For example, during the last administration, the mandated “surge” dockets prioritized recent arrivals, such as unaccompanied minors and adults with children, over pending cases before the Court. Similarly, this administration uprooted approximately one third of all Immigration Judges in the 2017 calendar year to assign them temporarily to “border courts” to create the “optics” of a full commitment to law enforcement measures, even at the expense of delaying hundreds of cases at each home. The DOJ claimed that the border surge resulted in an additional completion of 2700 cases. This number is misleading as it does not account for the fact that detained cases at the border are always completed in higher numbers than non-detained cases over a given period. Thus, the alleged 2700 additional completions was a comparison of apples to oranges, equating proceedings completed for those with limited available relief to those whose cases by nature are more complicated and time consuming as they involve a greater percentage of applications for relief. Moreover, many questioned the veracity of the Agency’s reported numbers because so many judges who went to the border courts had no work to do and faced malfunctioning equipment, often with no internet connection, or files. Meanwhile the dockets of these Immigration Judges at their home courts were reset to several years later, not to mention the unnecessary additional 4

financial costs of these details. Such docket shuffling tactics have led to further increases in delays and to the backlog of cases before the Immigration Court system as a whole.

On the micro level, individual judges have been tasked with responding to complaints voiced by DHS to the Executive Office for Immigration Review (EOIR) management about how a particular pending case or cases are being handled, in disciplinary proceedings without the knowledge of the opposing party.

⦁ DOJ Priorities

One of the most egregious and long-standing examples of the structural flaw of the Courts’ placement in the DOJ is that Immigration Judges have never been able to exercise the congressionally mandated contempt authority statutorily authorized by Congress in 1996. This is because the DOJ has never issued implementing regulations in an effort to protect DHS attorneys (who it considers to be fellow federal law enforcement employees). However, as Congress recognized in passing contempt authority, misconduct by both DHS and private attorneys has long been one of the great hindrances to adjudicating cases efficiently and fairly. For example, it is not uncommon for cases to be continued due to private counsel’s failure to appear or be prepared for a hearing, or DHS’ failure to follow the Court’s orders, such as to conduct pre-trial conferences to narrow issues or file timely documents and briefs. Just a couple of months ago, when I confronted an attorney for his failure to appear at a previous hearing, he candidly stated that he had a conflict with a state court hearing, and fearing the state court judge’s sanction authority, chose to appear at that hearing over the immigration hearing in my court. Similarly, when I asked a DHS attorney why she had failed to engage in the Court mandated pre-trial conference or file the government’s position brief in advance of the hearing, she defiantly responded that she felt that she had too many other work obligations to prioritize the Court’s order. These examples represent just a small fraction of the problems faced by Immigration Courts, due to the failure of the DOJ, in over 20 years, to implement the Congress approved even-handed contempt authority..

Similarly, Immigration Judges are subject to regulations that provide a one-sided veto of a judge’s decision by DHS. Title 8 C.F.R. section 1003.19 provides that the DHS, who appears as a party before the Immigration Court, can effectively vacate an Immigration Judge’s bond decision through automatic stay powers that override an Immigration Judge’s decision to set or reduce bond for certain individuals.

In a separate failure to safeguard the Immigration Courts, the DOJ has consistently proven to be ineffective in the timely appointment of judges. Historically, this was due, in part, to the Court’s placement in a law enforcement agency where for years, the Court was treated as an afterthought in DOJ, receiving scraps instead of full allotments of needed resources. However, even after the 9/11 tragedy, the DOJ has still visibly struggled with filing Immigration Judge positions, many 5

of which have taken almost two years to fill. Hiring practices by the Agency have a demonstrated history of politically motivated appointment practices, as evidenced by the Office of the Inspector General and Office of Professional Responsibility reports exposing political concerns and nepotism that have crept into the hiring process.2 And now, the DOJ surreptitiously has made substantive changes to the qualification requirements for judges, over-emphasizing litigation experience to the exclusion of other relevant immigration law experience. This has created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds, such as academics and United States Citizenship and Immigration Service attorneys, who are perceived as not sufficiently law enforcement oriented.

2 An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, DOJ OIG and OPR, July 28, 2008; Report Regarding Investigation of Improper Hiring Practices by Senior Officials of the Executive Office for Immigration Review, DOJ OIG, November 2014.

Another example of the structural problem of placing a Court in the DOJ has been the application of federal employee performance evaluations on Immigration Judges. Many courts have performance reviews for Judges, but the overwhelming majority of these reviews follow a judicial model – a transparent, public process where performance is evaluated by input from the stakeholders (attorneys, witnesses, and court staff) based on quality and temperament, not quantity, and is not tied to discipline. However, despite strenuous objections and warnings of conflicts of interest from the NAIJ, the EOIR has chosen to use a traditional federal employee performance review system. These evaluations are not public and are conducted by a management official who is often not located in the same court and does not consider input from the public, and can result in career-ending discipline to a Judge who makes a good faith legal decision that his or her supervisor considers to be insubordinate. This is the flawed current performance evaluation model for Immigration Judges, without the added, soon to be implemented, disastrous production quotas and time-based deadlines that were recently announced by the Department, which I will discuss shortly.

⦁ EOIR’s Decision to Halt the LOP Program

Another stark example of the mismanagement of the Immigration Court due to its placement in an agency with a competing mission is the recently announced EOIR decision to halt the Legal Orientation Program (LOP), despite its proven track record of increased efficiency and enhanced fundamental fairness for pro se respondents in detention facilities. This population of respondents, who are being held in custody, are frequently in extremely remote locations, and often lack the resources or the means to secure counsel or even to properly represent themselves due to language access issues. The lack of assistance in these areas delays their proceedings, often needlessly for those who seek merely a brief legal consultation before making an informed and timely decision to accept an order of removal. Thus in cases where the respondents lack 6

viable relief, the LOP can be instrumental in helping respondents make an informed decision to accept a final order of removal, dramatically minimizing costly detention time and expense.

Competent counsel, when available, can assist the Court in efficiently adjudicating cases before it. In the absence of competent counsel, the LOP provides the necessary bridge to ensure a minimum standard of due process is quickly and efficiently provided. The LOP helps respondents better understand the nature of these proceedings and the steps they need to take to present their cases when in court, understand and complete their applications for relief, and obtain evidence in their case. Without such assistance, judges are required by regulation to spend time and resources explaining these proceedings, soliciting the necessary information for the case, and providing respondents the opportunity to obtain evidence once they become aware it is needed.

Ironically, even the DOJ website has publicly supported the LOP program, citing the positive effects on the Immigration Court process, and the fact that cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention. However, once again without consultation with NAIJ, EOIR has made a decision seemingly ignoring the ramifications of how this will likely play out in the remote court locations, further undermining the structural integrity and the smooth functioning of the Court.

⦁ EOIR’s Recent Severe Restriction of Immigration Judge Speaking Engagements

In September 2017, the Agency issued a new memorandum almost eliminating personal capacity speaking engagements for Immigration Judges on any matters relating to the Court or immigration law.

The primary role of a court is to be a neutral and transparent arbiter, and this perception is reinforced when the court is accessible to the community it serves. Public access and understanding of what courts do is essential to build the understanding and trust needed for the judicial system to function smoothly. Judges are the face of that system and serve as role models who should be encouraged to engage with the community to inspire, educate and support civic engagements. Many of our Immigration Judges are active members of the legal and civil community who are sought out to speak in schools, universities, and bar associations as role models and mentors. They help the community better understand our Immigration Courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public. In the past, the DOJ had permitted Immigration Judges to publicly speak in their personal capacity on issues related to the Court and their Immigration Judge roles, (with the use of their title and a disclaimer that they are not speaking on behalf of the Agency).

This new policy brought a 180-degree reversal on many existing programs that included participation of Immigration Judges, from the Model Hearing Program, the Stakeholder 7

Meetings, to appearing as guest lecturer at one’s Alma Mater, etc. Judges who have been engaged in the community are now being deprived of the opportunity to fulfil those roles. This ill-advised move is yet another example of the misguided instincts of a law enforcement agency, which endeavors to keep its operations opaque, leading to an absolutely wrong result for a court system where transparency is essential to build public trust and confidence. This is yet another example which underscores the structural flaw that plagues our courts.

MISGUIDED SOLUTIONS TO THE BACKLOG

⦁ IJ Production Quotas and Deadlines

Based on a completely unsupported assertion that this action will help solve the Court’s backlog, DOJ has taken an unprecedented move that violates every tenet of an independent court and judges, and has announced that it will subject all Immigration Judges to individual production quotas and time-based deadlines as a basis for their performance reviews. A negative performance review due to failure to meet quotas and deadlines may result in termination of employment. This is despite the legal duty of Immigration Judges, codified by regulation, to exercise independent judgement and discretion in each of the matters before them. The havoc this decision will wreak cannot be understated or underestimated.

To fully understand the import of this approach, one must make the critical distinction between court-wide “case completion goals” or “benchmarks” versus individual production quotas and time-based deadlines for judges. The Immigration Court system has had “case completion goals” of some sort for over two decades. These are tools used as resource allocation metrics to help assess resource needs and distribute them nationally so that case backlogs are within acceptable limits and relatively uniform across the country. In fact, when individual performance evaluations were first applied to Immigration Judges over a decade ago, the EOIR agreed to a provision that prevented any rating of the judges based on number or time based production standards, in recognition of the fact that quotas or deadlines placed on an individual Immigration Judge are inconsistent with his or her independent judicial role. The public comments at that time made clear that otherwise quantitative priorities or time frames could abrogate the party’s right to a full and fair hearing. At that time, the DOJ assured the public that case completion goals would not be used this way and that judges would maintain the discretion to set hearing calendars and prioritize cases in order to assure they had the time needed to complete the case.

This tool of court-based evaluation metrics stands in stark contrast to the individual production quotas and completion deadlines which are now being proposed by EOIR. Introduction of individual Immigration Judge production quotas is tantamount to transforming a judge into an interested party in the proceedings. It is difficult to imagine a more profound financial interest than one’s very livelihood being at stake with each and every ruling on a continuance or need for additional witness testimony which would delay a completion. Yet production quotas and time- based deadlines violate a fundamental canon of judicial ethics which requires a judge to recuse 8

herself in any matter in which she has a financial interest that could be affected substantially by the outcome of the proceeding.

This basic principle is so widely accepted that the NAIJ is not aware of a single state or federal court across the country that imposes the type of production quotas and deadlines on judges like those that EOIR has now announced. A numeric quota or time-based deadline pits the judge’s personal livelihood against the interests both the DHS and the respondent. Every decision will be tainted with the suspicion of either an actual or subconscious consideration by the judge of the impact his or her decision would have regarding whether or not he or she is able to fulfill a personal quota or a deadline.

In addition to putting the judges in the position of violating a judicial ethical canon, such quotas pits their personal interest against due process considerations. Recently, the Seventh Circuit Court of Appeals noted in a case addressing imposition of case completion goals – not quotas – that there may be situations that such goals, even though they are not tied to a judge’s performance evaluation, could so undermine decisional independence as to create a serious issue of due process.

If allowed to be implemented, these measures will take the Immigration Courts out of the American judicial model and place it squarely within the model used by autocratic and dictatorial countries, such as China, which began instituting pilot quota programs for their judges in 2016.3 NAIJ does not believe that such courts should serve as a good blueprint for EOIR or for any court in a democratic society.

3See www.chinadaily.com.cn/china/2017-02/27/content_28361584_6.htm.

⦁ Unintended Consequences of Misguided Solutions

The DOJ has touted the imposition of a quota system on judges as a solution to the crushing backlogs facing the Immigration Courts. It is critical to recognize that the current backlog of cases is not due to lack of productivity of Immigration Judges; it is due, in part, to the Department’s consistent failure, spanning more than a decade to hire enough judges to keep up with the caseload. In 2006, after a comprehensive review of the Immigration Courts by Attorney General Gonzales, it was determined that a judge corps of 230 Immigration Judges was inadequate for the caseload at that time (approximately 168,853 pending cases) and should be increased to 270. Despite this finding, there were less than 235 active field Immigration Judges at the beginning of FY 2015. Even with a recent renewed emphasis on hiring, the number of Immigration Judges nationwide as of April 2018 stood at approximately 330 sitting judges, well below authorized hiring levels of 384. From 2006 to 2018, while the caseload has quadrupled (from 168,853 to 684,583 as of March 1, 2018), the number of Immigration Judges has not even doubled! Additionally, up to 40 percent of the Immigration Judge Corps are retirement eligible 9

and are exercising that right at a much higher rate than previously seen. Thus, hiring by the Agency has also failed to keep pace with the loss of judges by retirement or attrition.

Moreover, the 2017 GAO report on Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Changes (GAO-17-438) shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances which occurred primarily due to politically motivated changing court priorities, forced Judges to reset cases that were near completion in order to address the cases which were the priority “du jour,” and have had a tremendous deleterious effect on case completion rates. The same report shows that continuances attributed to the needs of the judge was responsible for only 11% of the continuances granted, clearly debunking the myth that Immigration Judges are significantly contributing to the backlog.

The cause of the increasing backlog is obvious: the ever-ballooning budget for immigration law enforcement which has not been accompanied by concomitant resources to the Immigration Courts. In the period that the budget for DHS saw an increase of 300 percent, the Immigration Court’s budget was only modestly increased by 70 percent. This is tantamount to increasing the lanes in a highway from one to three but failing to increase the number of exit ramps for everyone, then claiming that the exit ramps are the cause of the increased congestion and traffic. Simple common sense tells us otherwise.

Finally, the imposition of numeric quotas and time-based deadlines will have the unintended consequence of further adding to the backlog. A similar measure proposing to “streamline” the adjudications of immigration removal cases was introduced post 9/11 during the Attorney General John Ashcroft era. In the face of a ballooning backlog (which pales in comparison to the current one), the DOJ implemented streamlining measures at the Board of Immigration Appeals that significantly increased the number of case completions at the expense of reasoned decisions. This action caused a flood of appeals to the circuit courts, to a five-fold increase, from 1764 filings in 2002, when the program was announced, to 8446 in 2003 and onwards. Many of these cases were ultimately reversed or remanded all the way back to the trial court level, due to actual or perceived insufficiencies of the process or paucity of reasoning in the decisions. The “streamlining” program was quietly put to rest many years later when its failure was no longer deniable. If Immigration Judges are subjected to production quotas and time-based deadlines, the result will be the same: appeals will abound, repeating a history which was proven to be disastrous. Rather than making the overall process more efficient, this change will encourage individual and class action litigation, creating even longer adjudication times and greater backlogs. 10

Another unintended consequence if these quotas and deadlines are applied, is that judicial time and energy will be diverted to documenting performance rather than deciding cases. Immigration Judges will become bean-counting employees instead of fair and impartial judges, and their supervisors will become traffic cops monitoring whether the cases are completed at the correct speed. What a waste of skilled professional expertise! Judges’ job security will be based on whether or not they meet these unrealistic quotas and their decisions will be subjected to increased appeals based on suspicion regarding whether any actions they take, such as denying a continuance or excluding a witness, are legally sound or motivated to meet a quota. It is difficult to find a shred of practical justification in this approach.

SHORT TERM SOLUTIONS

⦁ Clarify the Definition of the Immigration Judge Position

The most pressing matter threatening the integrity and efficiency of the Immigration Court system which can quickly and easily be remedied is the DOJ’s decision to impose Immigration Judge production quotas and deadlines. If permitted to be implemented, as planned, on October 1, 2018, the Immigration Courts as we know them will cease to exist. Immigration Judges will no longer be able to serve as impartial and independent decision-makers over the life-altering cases before them.

To preserve the judicial independence of Immigration Courts Congress can:

(1) Amend the Immigration and Nationality Act to clarify the definition of an Immigration Judge as follows:

“The term “immigration judge” means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title, whose position shall be deemed to be judicial in nature and whose actions shall be reviewed only under rules and standards pertaining to judicial conduct.”

This definitional change was offered by Senators Gardner and Bennet as part of their bipartisan immigration amendment earlier this year. Senator Hirono’s recent immigration amendment also included this language;

(2) Alternatively, Congress can add Immigration Judges to the short list of federal government employees whose positions are exempt from performance evaluation due to the nature of their duties, as are Administrative Law Judges (ALJs). 5 U.S.C. § 4301(2)(D). Recognizing that federal employee performance evaluations are antithetical to judicial independence, Congress exempted ALJs from performance appraisals and ratings by including them in the list of 11

occupations exempt from performance reviews. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) to add a new paragraph (I) including Immigration Judges as an additional category in the list of exempt employees.

Extension of 5 U.S.C. § 4301(2)(D) to Immigration Judges is not an indication that NAIJ is opposed to performance evaluation of Immigration Judges. To the contrary, NAIJ fully supports performance evaluations that are based on judicial models, such as those recommended by the American Bar Association. These models stress judicial improvement as the primary goal, emphasizes process over outcomes, and places a high priority on maintaining judicial integrity and independence. Moreover, to the extent that any numeric metrics are included in such models, they would not and “should not be used for judicial discipline.”4 We encourage EOIR to abandon its myopic focus on numerical metrics and instead institute a judicial performance evaluation based on these models.

4https://www.americanbar.org/content/dam/aba/publications/judicial_division/aba_blackletterguidelines_jpe.authcheckdam.pdf.

Continued enhancement of resources will be an exercise in futility and will fail to reduce the crippling backlogs plaguing the Immigration Courts if the integrity and independence of the Immigration Judge decision-making authority is not protected. Without much needed protection, the inevitable increase in individual and class action litigation and the circuit court backlash (similar to the “streamlining” era) is virtually certain to ensue.

⦁ Additional Resources

NAIJ appreciates the additional judges and staff that Congress has provided and the recent allocation of an additional 100 Immigration Judge teams in the appropriations bill. This is a welcome move in the right direction. However we would be remiss if we failed to point out that even if all the appropriated judge positions are filled promptly (which is a task the DOJ has been unable to accomplish for decades), the pressing crisis of the backlog will not be resolved. The backlog of pending cases has almost quadrupled in the last twelve years. Yet, the number of judges has not even doubled (even with the inclusion of the recently allocated 100 judges). Thus, it is not unreasonable to conclude that with the continued flood of cases being filed with the Court due to increased law enforcement action, the need to match that rate of increased resources with the Courts is a necessary condition of addressing the challenge of the backlog.

Moreover, the Courts are woefully behind the times in technology. The Courts’ computer systems and printers are outdated. The software programs are several generations behind and lag in processing speed. Also, we depend on digital audio recording to capture our hearing audio in lieu of in-person transcribers, and in many locations we function with heavy reliance on tele video equipment. Yet these technologies are no longer state of the art, causing not infrequent 12

delay and malfunctions. We have yet to arrive in the 21st century in technology at EOIR. Unlike other courts who have embraced electronic filings and records, we are still under the weight of hardcopy files, some of which can weigh up to 10 to 15 pounds per case. Increasingly adequate space for Court locations has become an issue, leaving many Courts bursting at the seams due to thousands of files, with staff having to share cubicles, and cramped, unhealthy and unsafe spaces that were never intended to be used as work space.

ENDURING SOLUTION

⦁ An Article I Immigration Court is the Clear Consensus Solution that is Urgently Needed

While it cannot be denied that the short term solutions cited above are needed immediately, Band-Aid solutions alone cannot solve the persistent problems facing our Immigration Courts. The problems compromising the integrity and proper administration of a court highlighted above underscore the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. The DOJ has been provided years of opportunity to forestall the impending implosion at the Immigration Courts. Instead of finding long term solutions to our problems, DOJ’s political priorities and law enforcement instincts have led our Courts to the brink of collapse. With the latest misguided initiative to impose Immigration Judge production quotas and deadlines, DOJ has put accelerant on the fire; if these changes are implemented the integrity of the Immigration Court will be all but destroyed and paralyzing dysfunction will ensue.

Since the 1981 Select Commission on Immigration and Refugee Policy, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced. Such a structure solves a myriad of problems which now plague our Court: removing a politically accountable Cabinet level policy maker from the helm; separating the decision makers from the parties who appear before them; protecting judges from the cronyism of a too close association with DHS; assuring a transparent funding stream instead of items buried in the budget of a larger Agency with competing needs; and eliminating top-heavy Agency bureaucracy. In the last 35 years, a strong consensus has formed supporting this structural change. For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now most immigration judges and attorneys agree the long-term solution to the problem is to restructure the immigration court system. Examples of those in support include the American Bar Association, the Federal Bar Association, the National Association of Women Judges, and the American Immigration Lawyers Association. These are the recognized legal experts and representatives of the public who appear before us. Their voices deserve to be heeded.

To that end, the Federal Bar Association has prepared proposed legislation setting forth the blueprint for the creation of an “Article 1” or independent Immigration Court. This proposal will remove the Immigration Court from the purview of the DOJ to form an independent Court. The legislation would establish a “United States Immigration Court” with responsibility for functions 13

of an adjudicative nature that are currently being performed by the judges and Board members in the Executive Office for Immigration Review. The new court would consist of appellate and trial level judges. The appellate judges would be appointed by the President and confirmed by the Senate, and the immigration trial judges would be appointed by the appellate judges. The substantive law of immigration and corresponding enforcement and policy-determining responsibilities of the DHS and DOJ under the INA would be unchanged. Final decisions of the new court would be subject to review in the circuit court of appeals similar to the current model. However, in the new court, the Department of Homeland Security would be able to seek review of the court’s decisions to the same extent as the individuals against whom charges were filed. Practically, the transition to the new “United States Immigration Court” would involve minimal transitional or financial challenges as much of the physical structures and personnel would already be in place.

NAIJ has endorsed this bill5 and urges you to take immediate steps to protect judicial independence and efficient resolution of cases at the Immigration Courts by enacting legislation as described above. Failure to act will result in irreparable harm to the immigration law community as we know it. Action is needed now!

5 https://www.naij-usa.org/images/uploads/publications/NAIJ_endorses_FBA_Article_I_proposal_3-15-18.pdf

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Here are links to the other statements submitted to the Senate Judiciary Committee, all well worth a read:

Other Statements:

Law Professor Statement: Immigration Law Professors Issue Statement on Strengthening and Reforming America’s Immigration Court System
AILA National Statement: AILA Statement on Strengthening and Reforming America’s Immigration Court System Hearing

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It’s no secret that White Nationalist and “21st Century Jim Crow” Sessions was totally unqualified to be the Attorney General of the United States. Yet, the GOP Senate put in him that position knowing full his extremist views, lack of executive qualifications, and history of racially insensitive words and actions.

The Obama Administration’s indolent, sometimes disingenuous, and often highly politicized mis-handling of the Immigration Court System also contributed to the current sad state of justice for immigrants. To paraphrase the words of one of my colleagues, the Obama Administration’s poor handling of the Immigration Courts didn’t cause Jeff Sessions and his toxic policies, but it certainly did nothing to dissuade or prevent them and in many ways set the stage for the current due process disaster.

Congress also stood by and watched this unfolding disaster in a court system they created without providing any effective assistance (except for too few additional positions too late to help) and in many cases making things worse by ramping up enforcement without thinking about the consequences for the judicial system.

We need to elect legislators pledged to due process, fairness to all including immigrants, strong effective oversight of the DOJ, investigation of Sessions’s blatant attempt to “deconstruct” the U.S. justice system (particularly as it applies to immigrants and vulnerable minorities) which should eventually lead to his removal from office, and the transfer of the U.S. Immigration Courts out of the DOJ into an independent structure where they never again can be compromised by the likes of Jeff Sessions.

Join the New Due Process Army and fight to give real meaning to the Constitutional guarantee of Due Process for all in America.

PWS

04-19-18

JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!

https://www.themarshallproject.org/2018/01/19/lost-in-court

Julia writes for The Marshall Project:

“. . . .

And so in this gateway city on the Rio Grande [Laredo], inside a building rimmed with barbed wire, past security guards and locked doors, immigration judges on short details started hearing cases in a cramped courtroom that was hastily arranged in March.

But seven months later, the case of Oscar Arnulfo Ramírez, an immigrant from El Salvador, was not going quickly. He was sitting in detention, waiting for a hearing on his asylum claim. And waiting some more.

The court files, his lawyer discovered, showed that Ramírez’s case had been completed and closed two months earlier. Since the case was closed, the court clerk couldn’t schedule a new hearing to get it moving again. In fact, the clerk didn’t even have a record that he was still detained.

“It’s as if he’s non-existent,” his lawyer,, said. “He’s still in a detention center. He’s still costing the government and the American people tax dollars. But there’s no proceeding going on. He’s just sitting there doing completely nothing.”

Ramírez’s case was one of many signs of disarray in the improvised court in Laredo, which emerged during a weeklong visit in late October by a reporter from The Marshall Project and a radio producer from This American Life. Instead of the efficiency the Trump administration sought, the proceedings were often chaotic. Hearing schedules were erratic, case files went missing. Judges were exasperated by confusion and delays. Like Ramírez, detainees were lost in the system for months on end.

For a view of the border crossing in Laredo and the grinding process migrants begin there, check out Kirsten Luce’s photosfrom the gateway on the Rio Grande.

With the intense pressure on the court to finish cases, immigrants who had run from frightening threats in their home countries were deported without having a chance to tell the stories that might have persuaded a judge to let them stay.

. . . .

For Paola Tostado, the lawyer, Ramírez was not the first client to fall through the cracks in Laredo. Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.

Another Salvadoran asylum-seeker she represented, whose case was similarly mislaid, had gone for four months with no hearing and no prospect of having one. Eventually he despaired. When ICE officers presented him with a document agreeing to deportation, without consulting Tostado he had signed it.

“I’ve had situations where we come to an individual client who has been detained over six months and the file is missing,” she said. “It’s not in San Antonio. It’s not in Laredo. So where is it? Is it on the highway?”

In her attempts to free Ramírez, Tostado consulted with the court clerk in San Antonio, with the ICE prosecutors and officers detaining him, but no one could say how to get the case started again.

Then, one day after reporters sat in the courtroom and spoke with Tostado about the case, ICE released him to pursue his case in another court, without explanation.

But by December Tostado had two other asylum-seekers who had been stalled in the system for more than seven months. She finally got the court to schedule hearings for them in the last days of the year.

“I think the bottom line is, there’s no organization in this Laredo court,” Tostado said. “It’s complete chaos and at the end of the day it’s not fair. Because you have clients who say, I just want to go to court. If it’s a no, it’s a no. If it’s a yes, it’s a yes.”

Unlike criminal court, in immigration court people have no right to a lawyer paid by the government. But there was no reliable channel in Laredo for immigrants confined behind walls to connect with low-cost lawyers. Most lawyers worked near the regular courts in the region, at least two hours’ drive away.

Sandra Berrios, another Salvadoran seeking asylum, learned the difference a lawyer could make. She found one only by the sheerest luck. After five months in detention, she was days away from deportation when she was cleaning a hallway in the center, doing a job she had taken to keep busy. A lawyer walked by. Berrios blurted a plea for help.

The lawyer was from a corporate law firm, Jones Day, which happened to be offering free services. Two of its lawyers, Christopher Maynard and Adria Villar, took on her case. They learned that Berrios had been a victim of vicious domestic abuse. A Salvadoran boyfriend who had brought her to the United States in 2009 had turned on her a few years later when he wanted to date other women.

Once he had punched her in the face in a Walmart parking lot, prompting bystanders to call the police. He had choked her, burned her legs with cigarettes, broken her fingers and cut her hands with knives. Berrios had scars to show the judge. She had a phone video she had made when the boyfriend was attacking her and records of calls to the Laredo police.

The lawyers also learned that the boyfriend had returned to El Salvador to avoid arrest, threatening to kill Berrios if he ever saw her there.

She had started a new relationship in Texas with an American citizen who wanted to marry her. But she’d been arrested by the Border Patrol at a highway checkpoint when the two of them were driving back to Laredo from an outing at a Gulf Coast beach.

After Berrios been detained for nine months, at a hearing in July with Maynard arguing her case, a judge canceled her deportation and let her stay. In a later interview, Berrios gave equal parts credit to God and the lawyers. “I would be in El Salvador by this time, already dead,” she said. “The judges before that just wanted to deport me.”

. . . .

We have heard frustration across the board,” said Ashley Tabaddor, a judge from Los Angeles who is the association [NAIJ] president. She and other union officials clarified that their statements did not represent the views of the Justice Department. “We’ve definitely heard from our members,” she said, “where they’ve had to reset hundreds of cases from their home docket to go to detention facilities where the docket was haphazardly scheduled, where the case might not have been ready, where the file has not reached the facility yet.”

Another association official, Lawrence Burman, a judge who normally sits in Arlington, Va., volunteered for a stint in a detention center in the rural Louisiana town of Jena, 220 miles northwest of New Orleans. Four judges were sent, Burman said, but there was only enough work for two.

“So I had a lot of free time, which was pretty useless in Jena, Louisiana,” Burman said. “All of us in that situation felt very bad that we have cases back home that need to be done. But in Jena I didn’t have any of my files.” Once he had studied the cases before him in Jena, Burman said, he was left to “read the newspaper or my email.”

The impact on Burman’s case docket back in Arlington was severe. Dozens of cases he was due to hear during the weeks he was away had to be rescheduled, including some that had been winding through the court and were ready for a final decision. But with the enormous backlog in Arlington, Burman had no openings on his calendar before November 2020.

Immigrants who had already waited years to know whether they could stay in the country now would wait three years more. Such disruptions were reported in other courts, including some of the nation’s largest in Chicago, Miami and Los Angeles.

“Many judges came back feeling that their time was not wisely used,” Judge Tabaddor, the association president, said, “and it was to the detriment of their own docket.”

Justice Department officials say they are pleased with the results of the surge. A department spokesman, Devin O’Malley, did not comment for this story but pointed to congressional testimony by James McHenry, the director of the Executive Office for Immigration Review. “Viewed holistically, the immigration judge mobilization has been a success,” he said, arguing it had a “positive net effect on nationwide caseloads.”

Justice Department officials calculated that judges on border details completed 2700 more cases than they would have if they had remained in home courts. Officials acknowledge that the nationwide caseload continued to rise during last year, reaching 657,000 cases by December. But they noted that the rate of growth had slowed, to .39 percent monthly increase at the end of the year from 3.39 percent monthly when Trump took office.

Judge Tabaddor, the association president, said the comparison was misleading: cases of immigrants in detention, like the ones the surge judges heard, always take priority and go faster than cases of people out on release, she said. Meanwhile, according to records obtained by the National Immigrant Justice Center, as many as 22,000 hearings in judges’ home courts had to be rescheduled in the first three months of the surge alone, compounding backlogs.

. . . .”

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

Read Julia’s complete article at the above link. Always enjoy getting quotes from my former Arlington colleague Judge Lawrence O. (“The Burmanator”) Burman. He tends to “tell it like it is” in the fine and time-honored Arlington tradition of my now retired Arlington colleague Judge Wayne R. Iskra. And, Judge Iskra didn’t even have the “cover” of being an officer of the NAIJ. Certainly beats the “pabulum” served up by the PIO at the “Sessionized” EOIR!

Also, kudos to one of my “former firms” Jones Day, its National Managing Partner Steve Brogan, and the Global Pro Bono Counsel Laura Tuell for opening the Laredo Office exclusively for pro bono immigration representation, As firms like jones Day take the “immigration litigation field,” and give asylum applicants the “A+ representation” they need and deserve, I predict that it’s going to become harder for the Article III U.S. Courts to ignore the legal shortcomings of the Immigration Courts under Sessions.

A brief aside. My friend Laura Tuell was a “Guest Professor” during a session of my Immigration Law & Policy class at Georgetown Law last June. On the final exam, one of my students wrote that Laura had inspired him or her to want a career embodying values like hers! Wow! Talk about making a difference on many levels!And talk about the difference in representing real values as opposed to the legal obfuscation and use of the legal system to inflict wanton cruelty represented by Sessions and his restrictionist ilk.

We also should recognize the amazing dedication and efforts of pro bono and “low bono” lawyers like Paola Tostado, mentioned in Julia’s report. “Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.” What do you think that does to her law practice? As I’ve said before, folks like Paola Tostado, Christopher Maynard, Adria Villar, and Laura Tuell are the “real heroes” of Due Process in the Immigraton Court system.

Compare the real stories of desperate, bona fide asylum seekers and their hard-working dedicated lawyers being “stiffed” and mistreated in the Immigration Court with Sessions’s recent false narrative to EOIR about an asylum system rife with fraud promoted by “dirty attorneys.” Sessions’s obvious biases against migrants, both documented and undocumented, and particularly against Latino asylum seekers on the Southern Border, make him glaringly unqualified to be either our Attorney General or in charge of our U.S. Immigration Court system.

No amount of “creative book-cooking” by EOIR and the DOJ can disguise the human and due process disaster unfolding here. This is exactly what I mean when I refer to “”Aimless Docket Reshuffling” (“ADR”), and it’s continuing to increase the Immigration Court backlogs (now at a stunning 660,000) notwithstanding that there are now more Immigration Judges on duty than there were at the end of the last Administration.

I’ll admit upfront to not being very good at statistics and to being skeptical about what they show us. But, let’s leave the “Wonderful World of EOIR” for a minute and go on over to TRAC for a “reality check” on how “Trumpism” is really working in the Immigration Courts. http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php

On September 30, 2016, near the end of the Obama Administration, the Immigration Court backlog stood at a whopping 516,000! Not good!

But, now let go to Nov. 30, 2017, a period of 14 months later, 10 of these full months under the policies of the Trump Administration. The backlog has mushroomed to a stunning 659,000 cases — a gain of 153,000 in less than two years! And, let’s not forget, that’s with more Immigration Judges on board!

By contrast, during the last two full years of the Obama Administration — September 30, 2014 to September 30, 2016 — the backlog rose from 408,000 to 516,000. Nothing to write home about — 108,000 — but not nearly as bad as the “Trump era” has been to date!

Those who know me, know that I’m no “fan” of the Obama Administration’s stewardship over the U.S. Immigration Courts. Wrongful and highly politicized “prioritization” of recently arrived children, women, and families from the Northern Triangle resulted in “primo ADR” that sent the system into a tailspin that has only gotten worse. And, the glacial two-year cycle for the hiring of new Immigration Judges was totally inexcusable.

But, the incompetence and disdain for true Due Process by the Trump Administration under Sessions is at a whole new level. It’s clearly “Amateur Night at the Bijou” in what is perhaps the nation’s largest Federal Court system. And, disturbingly, nobody except a few of us “Immigration Court Groupies” seems to care.

So, it looks like we’re going to have to stand by and watch while Sessions “implodes” or “explodes” the system. Then, folks might take notice. Because the collapse of the U.S. Immigration Courts is going to take a big chunk of the Article III Federal Judiciary with it.

Why? Because approximately 80% of the administrative review petitions in the U.S. Courts of Appeals are generated by the BIA. That’s over 10% of the total caseload. And, in Circuits like the 9th Circuit, it’s a much higher percentage.

The U.S. Immigration Judges will continue to be treated like “assembly line workers” and due process will be further short-shrifted in the “pedal faster” atmosphere intentionally created by Sessions and McHenry. The BIA, in turn, will be pressured to further “rubber stamp” the results as long as they are removal orders. The U.S. Courts of Appeals, and in some cases the U.S. District Courts, are going to be left to clean up the mess created by Sessions & co.

We need an independent Article I U.S. Immigration Court with competent, unbiased judicial administration focused on insuring individuals’ Due Process now! We’re ignoring the obvious at our country’s peril!

PWS

01-20-18

DISORDER IN THE U.S. IMMIGRATION COURTS: SESSIONS “DECLARES WAR” ON HIS OWN IMMIGRATION JUDGES! — JUDGES’ ASSOCIATION (“NAIJ”) REPORTS MEMBERS REACTING WITH “DISBELIEF, SHOCK, CONFUSION, AND OUTRAGE” TO THE CONDESCENDING “McHENRY MEMO!” — NAIJ DEMANDS BARGAINING ON CASE QUOTAS!

FULL DISCLOSURE: I am a retired member of the National Association of Immigration Judges (“NAIJ”). In that capacity, I received the following e-mail from our President, The Honorable A. Ashley Tabaddor (who is resident in the U.S. Immigration Court in Los Angeles California), acting in her NAIJ capacity. I republish that e-mail below with Judge Tabaddor’s permission.

“Dear NAIJ Members,

We have been hearing much from our members regarding the recent Director’s email, dated January 17, 2018, publishing purported “Case Priorities and Immigration Court Performance Measures.” Many have expressed their disbelief, shock, confusion, and outrage as to the published standards, in light of the severe backlogs in our courts. We share your concerns. NAIJ has demanded to bargain on implementation of “numeric based performance measures on Immigration Judges”, and the Agency had provided assurances to NAIJ that no individual IJ based quotas and deadlines will be imposed until they have fulfilled their obligation under labor law to bargain with us. And under the law, the Agency is prohibited from imposing such standards until all our bargaining rights have been properly exhausted. NAIJ is also fighting any infliction of quotas and deadlines on Immigration Judges through outreach to the public and Congress, and is investigating the possibility of legal action.

In addition, NAIJ is currently evaluating the memo to determine if there has been any breach in law with the issuance of this memo or any further action we can take under labor law with respect to it.

NAIJ is working diligently to fight the implementation of any “numeric based performance measures” on Judges, and ensure that any future standards that may be imposed on Judges or the Immigration Courts are legally defensible, fair, and would not encroach on our independent decision making authority. Please stay tuned for further development.

If you have any questions, feel free to reach out to myself or any of our NAIJ representatives.

The Honorable A. Ashley Tabaddor, President

National Association of Immigration Judges

DISCLAIMER: The author is the President of the National Association of Immigration Judges. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.”

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

I’ve already noted the total preposterousness and tone-deafness of setting arbitrary “case completion goals” for a court system that is already working overtime but crumbling under incredible backlogs and outdated procedures and technology.

Make no mistake about it: those backlogs are not because of Judges, immigrants, or immigrants’ attorneys. They are the direct result of: 1) years of mismanagement and continuing improper political meddling by Sessions and his predecessors going back over several Administrations; and 2) an irresponsible lack of restraint and common sense priorities by DHS enforcement that has been encouraged, aided, and abetted by this Administration.

Under the Trump Administration, DHS line enforcement agents have been freed from any semblance of priorities and given essentially carte blanche to arrest anyone they feel like arresting and placing them into an already overwhelmed and crumbling U.S. Immigration Court System. Meanwhile, the Immigration Judges, who are struggling to provide due process, and have been stripped of any meaningful control over their own dockets, are treated like “assembly line workers” subject to “production quotas.” That’s no way to run a Due Process Court System, and it’s showing in some of the incorrect and unfair results that I report on regularly!

We need an independent Article I U.S. Immigration Court, now! But Congress, which can’t perform the basic functions of governance, apparently isn’t interested in cleaning up the mess they created and enabled. So, with the system fast heading for complete collapse, it looks to me like, willing or not, the Article III U.S. Courts will be stuck with effectively placing the U.S. Immigration Courts in “judicial receivership” until some future Congress addresses the situation in a way that insures Constitutional Due Process of law for all.

A very bad day for the U.S. Justice System and for all who care about upholding Due Process under our Constitution.

PWS

01-19-20

The Proper Role Of a Good Immigration Judge Involves Sympathetic Understanding Of The Plight Of Refugees, What They Have Suffered, & The Systemic Burdens They Face in Presenting Claims.

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Join the New Due Process Army and fight to give real meaning to the Constitutional guarantee of Due Process for all in America.

PWS

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