"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
http://www.noblelawfirm.com/ice-violates-due-process-roberto-beristain
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Click the link to read the complete press release. Sometimes Article III Federal Courts are willing to intervene in alleged unlawful removal cases, sometimes not. I’ve been on both sides and in the middle on this issue during my career.
Thanks to Dan Kowalski over at LexisNexis Immigration Community for passing this along.
PWS
04-06-17
http://This Immigrant Problem Is More Imagined Than Real
“I suspect that the readers who comment negatively about today’s immigrants not assimilating into American culture don’t know any and have spent no time with them (Letters, March 28 responding to Bret Stephens’s “‘Other People’s Babies,’” Global View, March 21). Challenge yourself to do this: Go volunteer at your local school and meet some of the kids, go to community gatherings and meet the parents. You will be pleasantly surprised. Many, possibly most, espouse the best of traditional American conservative values: hard work, a focus on education, thrift, industry and a strong interest in engaging with the larger American community.
Kim Gould
Seattle”
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Couldn’t agree with your more, Kim! Not only is this the experience I have had with the overwhelming number of migrants coming before me over 13 years at the Arlington Immigration Court, but it also matches the “real life” experience our church has had through association with wonderful groups like “Casa Chirilagua” and the “Kids Club” in our Alexandria, Virginia community.
Moreover, there is no such thing as “other people’s babies.” We are morally responsible for the well-being of all children in America, regardless of status. Being fortunate enough to live in the United States is a great privilege and fortune that those of us who were born U.S. citizens received through absolutely no personal merit of our own. Interestingly, only foreign-born naturalized citizens had to go through a merit-based process to achieve U.S. citizenship. With great privilege, comes great responsibility.
PWS
04-05-17
GW Immigration Clinic 2017 – Medium
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Looks like lots of new recruits for the “New Due Process Army.” These guys are the real “heart and soul” of today’s American law. Thanks to Professor Alberto Gonzalez for sending this in.
PWS
04/03/17
Attorney General Sessions Announces Expansion and Modernization of Program to Deport Criminal Aliens
A USDOJ Press Release states:
“Attorney General Jeff Sessions today announced the expansion and modernization of the Department’s Institutional Hearing Program (IHP).
The IHP identifies removable criminal aliens who are inmates in federal correctional facilities, provides in-person and video teleconference (VTC) immigration removal proceedings, and removes the alien upon completion of sentence, rather than releasing the alien to an ICE detention facility or into the community for adjudication of status. Bringing an Immigration Judge to the inmate for a determination of removability, rather than vice versa, saves time and resources and speeds hearings.
The program is coordinated by the Department of Justice’s Executive Office for Immigration Review (EOIR), the Bureau of Prisons (BOP) and Immigration and Customs Enforcement (ICE).
“We owe it to the American people to ensure that illegal aliens who have been convicted of crimes and are serving time in our federal prisons are expeditiously removed from our country as the law requires,” said Attorney General Sessions. “This expansion and modernization of the Institutional Hearing Program gives us the tools to continue making Americans safe again in their communities.”
The expansion and modernization of the IHP program will occur in the following three ways:
1. ICE, BOP, and EOIR will expand the number of active facilities with the program to a total of 14 BOP and 6 BOP contract facilities;
2. EOIR and BOP will increase each facility’s VTC capabilities and update existing infrastructure to aid in the ability to conduct removal proceedings; and
3. EOIR and ICE will finalize a new and uniform intake policy. EOIR and ICE expect to have reached agreement on this new intake process by April 6, 2017.
These improvements will speed the process of deporting incarcerated criminal aliens and will reduce costs to taxpayers.”
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The IHP has been around for many years. However, recently it has not been a point of emphasis for the DHS.
Restoring emphasis and expanding the program makes sense. It deals with serious criminals, while they are serving time in Federal or state penitentiaries, and therefore does not raise some of the sensitive community enforcement and local police cooperation issues tripped by the Administration’s expanded criminal priorities.
A few points of concern:
1) It’s usually very difficult to get attorneys to represent individuals in the IHP;
2) The VTC (“televideo”) equipment upon which the IHP depends for conducting hearings has in the past sometimes been less than reliable;
3) The “new” priorities on the U.S. Immigration Court are starting to pile up; to “prioritize IHP cases other cases in the Immigration Court’s 540,000 backlog will have to be put aside;
4) In the past, there have been some irrationalities in IHP scheduling; too often cases of individuals whose “earliest release date” is literally decades from now are treated as “priorities” for no good reason, forcing more viable cases further back in the queue.
Given the Administration’s priority on criminal removals, this looks like a smart move. However, the proof will be in the execution, which, based on my experience, takes an exceptionally high degree of coordination and cooperation among different entities.
PWS
03/31/17
David Nakamura and Matt Zapotosky report in the Washington Post:
“The Justice Department is seeking to play a more muscular role in the Trump administration’s immigration enforcement strategy, a move that is alarming immigrant rights advocates who fear Attorney General Jeff Sessions’s hard-line ideology could give Justice too much clout in determining policy.
To highlight the department’s expanding role, Sessions is considering making his first trip to the southern border in mid-April to Nogales, Ariz., a busy border crossing region that features a major patrol station and already has miles of fencing and walls designed to keep out illegal immigrants from Mexico. Aides emphasized that his itinerary is still being developed and the stop in Nogales — which would come as Sessions travels to a conference of state police officials from around the country 200 miles away in Litchfield Park — is still tentative.
If he follows through, the border visit would come at a time when President Trump is asking Congress for billions of dollars to begin construction on a longer and larger wall between the United States and Mexico, a central campaign promise.
In recent weeks, Sessions has taken steps to increase his department’s focus on immigration.
. . . .
But legal experts said Sessions could significantly restructure the Justice Department by ramping up the number of immigration judges sent to the border to speed up hearings and by pursuing more criminal prosecutions against immigrants in the United States beyond those associated with drug cartels and human smugglers that past administrations have focused on.
The Sessions Justice Department also could move to strip some protections from undocumented immigrants, such as how much time they have to find a lawyer; more robustly defend DHS enforcement policies that are challenged in court; and use the Office of the Special Counsel to aggressively prevent employers from discriminating against American workers by hiring undocumented workers, said Leon Fresco, a former deputy assistant attorney general in the Obama administration.
“I think they will be incredibly active,” said Fresco, who helped draft the 2013 immigration bill while serving as an aide to Sen. Charles E. Schumer (D-N.Y.). The only thing that could slow Sessions, he added, was “finding enough individuals with expertise and the willingness to speed these issues along.”
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Prior to the creation of the Department of Homeland Security (“DHS”), the Attorney General had responsibility for nearly all aspects of domestic immigration enforcement and adjudication. Most of those functions were reassigned to the DHS, leaving the AG responsible primarily for the Immigration Courts (through the Executive Office for Immigration Review – “EOIR”) and for conducting immigration litigation in the Article III Federal Courts (through the Office of Immigration Litigation — “OIL”).
Apparently, Attorney General Sessions finds these legal roles too “passive” for his enforcement-oriented outlook. Sensing a vacuum because of his closeness to the President and DHS Secretary Kelly’s relative inexperience in immigration issues, Sessions now seeks to make, rather than just defend or adjudicate, immigration policy.
What does this say about the chances that Sessions will promote a fair and impartial administrative hearing system through the U.S. Immigration Courts and the Board of Immigration Appeals over which he exercises ultimate control.
PWS
03/31/17
Like many of us, Bruce has witnessed first-hand the patent unfairness of requiring individuals to represent themselves in U.S. Immigration Court. In this L.A. Times op-ed he urges Los Angeles to follow the City of New York’s fine example in providing effective pro bono legal representation to those whose lives and futures are on the line in Immigration Court:
“In December, Mayor Eric Garcetti announced the creation of a $10 million fund to provide lawyers to immigrants facing deportation. But the parameters of the program are still being determined. In order to be effective, the program needs to be implemented soon and expanded quickly.
For defendants in deportation proceedings, the stakes can be life or death, since some face torture or worse upon returning to their home countries. This is why a fellow immigration judge, Dana Marks, once said that deportation cases are “death penalty cases heard in traffic court settings.” Many other defendants face permanent separation from their families.
Yet immigrants who cannot afford a lawyer must argue against government prosecutors. More often than not, this includes immigrants who are detained — that is, jailed — while their cases move through the courts. Detention almost always means loss of income, while lawyers cost more than the majority of immigrants can afford. A person who speaks little or no English must gather information from police officers or medical experts, submit written declarations in English or find evidence to support their asylum claims, all without access to the Internet or to affordable phone calls. There are an estimated 3,700 immigrants in detention across the greater L.A. area, according to the mayor’s office.
With one side at such a great disadvantage, it becomes much harder for judges to apply the law in a just manner, increasing the risk of flawed decisions. Especially in cases where defendants are detained, a day in court without a lawyer isn’t a day in court at all. A recent study found that detained immigrants who are represented by an attorney are five times more likely to win their cases than immigrants without representation.
A court system without lawyers is not merely unjust — it is also inefficient and wasteful. Without adequate legal representation for immigrants, judges can’t spend their time making decisions. Instead, they must constantly explain the legal process, reschedule cases and answer questions. In some instances, judges issue decisions only to cover the same ground again if the defendant is lucky enough to find a lawyer and get the case re-heard.
All this waste results in a heavily backlogged immigration court system, and nowhere more so than in California, where almost 100,000 cases are waiting to be decided. In San Francisco, for instance, an immigrant in court today will have his next hearing over two years from now.
. . . .
After 17 years on the bench, I’m troubled to see a wave of new raids that are sure to clog the dockets for years to come. But I also see an opportunity for local leaders to take a stand and provide immigrant communities with the fair and responsive representation they deserve.”
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Bruce makes an important point that many outside observers miss. In addition to being inherently unfair, hearings involving unrepresented individuals are tremendously inefficient. That is, if the Immigration Judge takes to time to provide at least some semblance of due process.
Aspects of the hearing system that lawyers understand have to be explained in detail, in simplified language, through an interpreter to the unrepresented respondent.
Because there is no lawyer to question the respondent, and it would be inappropriate to rely on the DHS lawyer to present the respondent’s case, the Immigration Judge effectively becomes the respondent’s “substitute attorney” — an impossible conflict of interest. I usually conducted the examination of an unrepresented respondent using a format similar to that I used for client intake interviews in private practice. It takes time to do a fair and thorough job.
Dictating a decision in an unrepresented detained case is a long, painstaking process. Where an attorney is involved, and the interpreter is with me in court, which is the norm, the attorney normally “waives” a verbatim contemporaneous interpretation in favor of a short summary and a promise to fully explain my ruling to the client afterwards.
But, with no attorney, I must stop every few sentences for the interpreter to do a “serial interpretation” to the respondent on televideo. The “simultaneous interpretation” system is not currently designed to work with the televideo system.
Appeals by the losing side are fairly common in detained unrepresented cases. When both sides have attorneys, I just say a few words reminding them about how strictly the BIA enforces filing deadlines.
But, when an unrepresented respondent is involved, I have to give a short “how to seminar” in the art of filing an appeal with a fee waiver in a timely manner. Occasionally, the detention center doesn’t even have the correct appeal and waiver forms available, so I have to note that “officer promised to serve forms” while attaching an “insurance copy” to my “minute order” (which itself might not actually get to the detained respondent until weeks after the hearing — halfway through the 30 day appeal period).
Also, Bruce accurately points out that if the respondent finally is able to find a pro bono lawyer during the appeal process, the chances of a remand for further development of the record before the Immigration Judge are significant.
Although claiming to be supportive of the role of pro bono counsel in Immigration Court, and providing some support to some programs, overall the U.S. Immigration Court is “user unfriendly” to the pro bono community. In all Administrations, artificial political prioritization of cases driven by the Department of Justice and decisions to “kowtow” to DHS enforcement by placing so-called “courts”‘ within out of the way detention centers (rather than insisting, as true independent court system would, that detention centers be located in the vicinity of already established courts, where there is an established immigration bar and family support is often available) actively undermine both access to, and effective participation by, pro bono attorneys.
It’s sad but clear that the current Administration has “no time” for due process for migrants. They appear to have every intention of taking an already out of control, user unfriendly court system and making it even worse.
Only the Article IIII Courts stand between this Administration and their apparent goal of a “deportation express” with “no station stops” for due process. And, the only way that vulnerable migrants are going to be able to get into, and draw the attention of, the Article III Courts is by being well-represented by attorneys every step of the way.
That’s why it is critically important for Los Angeles and other cities who value their immigrant communities to heed Bruce’s call for the establishment of pro bono programs. Otherwise, the due process travesty being planned by this Administration will go forward unabated and become an indelible stain on American legal, political, and Constitutional history.
Other than that, I have no strong views on the subject.
PWS
03/31/17
“Arej has conceded that he qualifies as a criminal alien under 8 U.S.C. § 1252(a)(2)(C), so our review of the Board’s decision is limited to issues of law. 8 U.S.C. § 1252(a)(2)(D). But it was a serious legal error for the Board to have ignored Arej’s evidence. As we noted in Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), the Board cannot make a reasoned decision to deny a motion to reopen if it ignores the evidence that a petitioner presents.
Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. See, e.g., Jeffrey Gettleman, “War Consumes South Sudan, a Young Nation Cracking Apart,” New York Times, March 4, 2017, https://nyti.ms/2lHeELw. “Tens of thousands of civilians have been killed”; “every major cease‐fire that has been
No. 15‐2061 5
painstakingly negotiated by African and Western officials has been violated”; and “dangerous fissures are opening up within the South Sudanese military.” Id. And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans. See 8 C.F.R. § 1003.2(a).
The petition for review is therefore granted, the decision of the Board vacated, and the case remanded to the Board for further proceedings consistent with this opinion.”
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Seems like a South Sudan case would be a “no brainer” for reopening by the BIA. Not sure we even deport folks there. And, actually reviewing the evidence carefully would be a great first step toward becoming “the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Or, has the vision become just a slogan from bygone years? He’s probably only eligible to apply for withholding or CAT, though, because of the nature of his criminal conviction.
PWS
03/29/17
MEDIA UPDATE:
ICE REFUSES TO RELEASE AMOS YEE DESPITE GRANT OF ASYLUM BY THE IMMIGRATION JUDGE
On March 27, 2017, Officers at Immigration and Customs Enforcement (ICE), Chicago Field Office informed Grossman Law, LLC that Amos Yee will remain in detention despite the Honorable Immigration Judge’s asylum grant on March 24, 2017. Yee has been detained since December 17, 2016.
When ICE officers first detained Yee, they stated he would be released on parole and that ICE had no interest in keeping Yee detained for the pendency of his proceedings. Then, after release of the new Administration’s Executive Orders, ICE informed Grossman Law that they would not release Yee. Subsequently, after Yee’s merits hearing, ICE moved him to another detention facility without informing counsel about the transfer. Now, ICE officers are basing the decision to keep Yee detained on a potential, but not yet filed, appeal by the Department of Homeland Security.
Grossman Law has learned from the Assistant Field Office Director for ICE’s Chicago Field Office that “…detained aliens who are granted relief remain in custody during the pendency of an ICE appeal, except in extraordinary circumstances.” Additionally, Amos Yee informed us via telephone that other individuals he has met at the Dodge County facility, remain in detention despite a grant of asylum. The decision to deny Yee his freedom is not limited just to him, but to many others.
ICE’s decision to continue to detain individuals granted asylum, especially when there are no security concerns, brings up serious questions about this country’s compliance with basic principles of international law regarding the treatment of asylees. There is no provision under the Immigration and Nationality Act, or under any Presidential Executive Order, that justifies the continued detention of an individual who has been granted asylum and is deemed to be a refugee. The supposed pendency of the Department’s appeal is immaterial; Yee should have been released immediately after he was granted asylum.
As the American Immigration Lawyers Association notes:
“America’s immigration detention practices undermine the fundamental principles of due process and fairness, and require immediate systemic reform. Annually, the Department of Homeland Security (DHS) unnecessarily detains more than 400,000 people, including asylum seekers and other extremely vulnerable immigrants. Many detainees are held for prolonged periods despite the fact that they have strong ties to the United States and pose no threat to public safety.
Detention is extremely expensive, costing American taxpayers $2 billion per year. Proven alternatives to detention, by contrast, cost between 17 cents and $17 per day. Detention should be a last resort, used only when other means of supervision are not feasible, and only after a truly individualized assessment of someone’s public safety and flight risk.”
Grossman Law, LLC is renewing a request to release Yee on humanitarian parole and is exploring all other viable legal options.
For further Media inquiries on this case please contact:
ICE – Chicago Field Office: 312-347-2168
Melissa Chen – Movements
Email: mchen@movements.org
Cell: 857-285-0975
The American Immigration Lawyers Association can be reached at:
George Paul Tzamaras
AILA Senior Director, Strategic Communications and Outreach
202.507.7649
GTzamaras@aila.org
Grossman Law, LLC
4922 Fairmont Avenue, Suite 200
Bethesda, Maryland 20814
Phone: (240) 403-0913
Website: www.GrossmanLawLLC.comAmos
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Sadly, notwithstanding the equities here, my recollection of the “black letter law” is that the Immigration Judge’s order is not “final” during the appeal period unless appeal is immediately waived. If either party files an appeal, the order does not become final while the appeal is pending. In other words, it is as if the case were never completed; it remains a pending case while it is before the BIA, and the rules governing detention are basically the same as they are when the case is pending before the Immigration Court.
If the respondent had “entered” the U.S., the asylum grant could be viewed as a “changed circumstance” giving the Immigration Judge a basis to redetermine custody upon his or her own motion or upon the respondent’s request. But, Mr. Yee appears to be an “arriving alien.” Therefore under the somewhat arcane rules applying to such aliens, neither the Immigration Judge nor the BIA has jurisdiction to redetermine custody. Continuing custody is within the sole jurisdiction of the DHS, unless a U.S. District Court intervenes by habeas corpus and directs either the DHS or the Immigration Judge to conduct an individualized bond hearing.
Tough system. But, I doubt the Trump Administration is going to make it any easier for respondents to get released from detention.
PWS
03/29/17
Robert Barnes writes in the Washington Post:
“Everyone agrees that Jae Lee pleaded guilty to a drug charge and now faces deportation to South Korea because of bad lawyering.
The Tennessee restaurateur, who came to the United States as a child in 1982, was told if he took the plea he’d serve a year in prison. But his lawyer Larry Fitzgerald told him there was no chance that a longtime legal permanent resident like him would be deported. Fitzgerald was wrong.
But does Fitzgerald’s mistake make any difference if the evidence against Lee was so strong that he almost certainly would have been convicted had he rejected the deal and gone to trial? As the appeals court that ruled against him noted, he would still be deportable.
The Supreme Court struggled with the issue Tuesday. Does Lee deserve a second chance, because of his lawyer’s mistake, to either seek a plea deal that would not result in his deportation or roll the dice with a jury and hope that somehow he is not convicted?
The answer could be important, as the Trump administration promises a new vigor in deporting immigrants convicted of crimes.”
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The Justices appeared to be sympathetic to Mr. Lee. But, that might not be enough to add up to a victory for him.
PWS
03/29/17
Steve Hendrix writes:
“STEWART DETENTION CENTER, LUMPKIN, Ga. — In a tiny hearing room at one of the country’s most remote and unforgiving immigration courts, Elena Albamonte walked right past the table she had used for years as the government’s highest-ranking prosecutor here. Instead, she put her briefcase on the other table, taking a seat next to an Armenian man in prison garb who had illegally crossed into the United States.
After a three-decade career overseeing deportations as a government immigration lawyer, Albamonte has switched sides.
“Ready, your honor,” Albamonte said to immigration court Judge Dan Trimble after tidying a thick file of legal documents.
She knew her chances of persuading Trimble to grant her client political asylum were awful. Even before President Trump’s crackdown on the nation’s 11 million undocumented immigrants, the judges at Stewart had been deporting detainees at startlingly high rates. Trimble had turned down 95 percent of those seeking asylum from fiscal 2011 to 2016, according to a study of immigration judges by Syracuse University.
But for 40 minutes, Albamonte gamely made the case for Geregin Abrahamyan, a 33-year-old who said he was repeatedly beaten and threatened because of his political activity in Armenia.
Abrahamyan had been in Immigration and Customs Enforcement custody since the day he and his pregnant partner and their 3-year-old daughter crossed from Mexico seven months earlier and turned themselves in at a Border Patrol office. Mother and daughter were quickly granted parole and live with Abrahamyan’s parents in California. But Abrahamyan was shipped across the country and had yet to meet his son, who was born in August.
Albamonte, 60, argued that he was eligible for asylum despite being turned down once before and that he had suffered additional beatings in Armenia that the court should know about.”
. . . .
She doesn’t apologize for prosecuting hundreds of asylum cases that ended in deportation.
“Not everyone has a right to asylum under the law as it is written,” she said. “But everybody does deserve competent, fair representation. That’s how the system is supposed to work.”
And that is how she wound up staying here, far from her home in the Washington suburbs, living in a tiny Southern town and working on the opposite side of the issue that defined her career.
“I never expected any of this,” she said.
. . . .
She doesn’t apologize for prosecuting hundreds of asylum cases that ended in deportation.
“Not everyone has a right to asylum under the law as it is written,” she said. “But everybody does deserve competent, fair representation. That’s how the system is supposed to work.”
And that is how she wound up staying here, far from her home in the Washington suburbs, living in a tiny Southern town and working on the opposite side of the issue that defined her career.
“I never expected any of this,” she said.”
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Hendrix’s full-page, in depth profile of Elena and her amazing career is a “must read” for anyone seeking to understand the challenges of providing due process in today’s U.S. Immigration Court system. And, Elena is a truly inspiring role model for young lawyers seeking to enter the immigration field. Elena’s career demonstrates the importance of combining knowledge with flexibility and interpersonal skills and caring. As pictured in this article, Elena treats everyone she comes in contact with clients, staff, court personnel, opponents, and Immigration Judges with respect, conviviality, and genuine humanity. She recognizes an essential truth — the law is complex and often difficult, but it is the people who will make or break you in practicing law.
I’m proud to say that Elena once worked for me during my tenure as Chair of the BIA. Our paths later crossed when she was detailed to the Arlington Immigration Court as an Assistant Chief Counsel several years before my retirement. I think I told her at that time that a number of my colleagues had remarked on how much we appreciated her skills as a trial lawyer and enjoyed having her appear before us. Obviously, she’s taken those skills with her into private practice.
I’ve also commented previously about the inherent unfairness of the U.S. Immigration Court agreeing to locate “captive courts” within detention centers where effective representation is often unavailable, public access (and therefore transparency) is limited, and the atmosphere is not conducive to the impartial delivery of justice. Clearly, this Administration intends to double down on this unfortunate practice rather than seeking to end or phase it out.
Don’t think that representation by someone like Elena makes a difference for a respondent? Well, by my count, she’s succeeded in six of her seven cases where decisions have been rendered by the Immigration Judge. That’s a success rate of about 85% in a location where the average asylum grant rate is 5% — an astounding 1,700% difference.
Thanks, Elena, for all you have accomplished for the cause of justice during your career and for your continuing commitment to providing due process for the most needy and vulnerable among us! You are truly an inspiration to all of us!
PWS
03/29/17
Petula Dvorak writes in her regular local column in the Washington Post:
“Their dreams — to become a lawyer, an interior decorator, a sailor in the Navy — are a lot like the dreams that other kids at their Maryland high school have.
It’s their nightmares — seeing relatives killed, paying off coyotes, being raped at the border, spending weeks in a detention center, being homeless in a new country — that make them so different.
“They’ve survived untold horrors,” said Alicia Wilson, the executive director at La Clinica Del Pueblo, which is working with Northwestern High School to help these teenagers.
The Hyattsville school has absorbed dozens of these students — part of a wave of more than 150,000 kids who have crossed the U.S. border over the past three years fleeing violence in Central America.
We usually hear about these young immigrants only when they’re accused of committing heinous crimes — such as the two undocumented students charged with raping a 14-year-old classmate in a bathroom at Rockville High School. Or when they become victims of heinous crimes — such as Damaris Reyes Rivas, 15, whose mother wanted to protect her from MS-13 in El Salvador but lost her to the gang in Maryland.
In country with a growing compassion deficit, plenty of people resent these kids, demonizing them along with other undocumented immigrants. But I wish those folks got to spend the time with them that I did. They’re funny, vulnerable, hard-working and stunningly resilient.”
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Exactly what I found in more than a decade as a trial judge at the Arlington Immigration Court. The young people were among the most memorable of the thousands of lives that passed through my courtroom. “Funny, vulnerable, hard-working and stunningly resilient,” yes they were all of those things. To that, I would add smart, courageous, talented, motivated, and caring.
Many appeared at the first Master Calendar speaking only a few words of English. By the time the second Master rolled around (often 9-12 months on my overcrowded docket) they were basically fluent. And, they often were assisting others in the family to understand the system, as well as taking on major family responsibilities with parents or guardians holding down two, or sometimes three jobs.
I checked their grades and urged/cajoled them to turn the Cs into Bs and the Bs into As. Many brought their report cards to the next haring to show me that they had done it.
I recognized the many athletes, musicians, chess players, science clubbers, and artists who were representing their schools. But, I also recognized those who were contributing by helping at home, the church, with younger siblings, etc.
Just lots of very impressive young people who had managed to put incredible pain, suffering, and uncertainty largely behind them in an effort to succeed and fit in with an strange new environment. They just wanted a chance to live in relative safety and security and to be able to lead productive, meaningful lives, contributing to society. Pretty much the same things that most off us want for ourselves and our loved ones.
More often than not, with the help of talented, caring attorneys, many of them serving in a pro bono capacity, and kind, considerate Assistant Chief Counsel we were able to fit them into “the system” in a variety of ways. Not always, But, most of the time. Those who got to stay were always grateful, gracious, and appreciative.
Even those we had to turn away I hope left with something of value — perhaps an education — and the feeling that they had been treated fairly and with respect, that I had carefully listened and considered their claim to stay, and that I had explained, to the best of my ability, in understandable language, why I couldn’t help them. Being a U.S. Immigration Judge was not an easy job.
Overall, I felt very inspired when I could play a positive role in the lives of these fine young people. “Building America’s future, one life at a time, one case at a time,” as I used to say.
PWS
03/28/17
ADR = “Aimless Docket Reshuffling,” a phenomenon that occurs when political officials at the DOJ direct EOIR to “reprioritize” existing U.S. Immigration Court dockets to meet politically-driven enforcement goals. Results in U.S. Immigration Judges being reassigned from regularly scheduled largely “ready for trial” pending cases to “priority cases” that often are NQRFPT. Therefore almost nothing gets completed, but the court staff is overburdened and the private bar and individual respondents as well as the DHS Assistant Chief Counsel see already prepared cases reassigned to new judges who don’t have time to hear them or “orbited” to spots at the end of the docket several years from now. Results in growing backlogs even with more judges employed in the system.
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As reported in LexisNexis Immigration https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2017/03/27/eoir-posts-new-hearing-location-details.aspx?Redirected=true EOIR has announced several rounds of details of U.S. Immigration Judges to “detained locations” as part of its “implementation of President Trump’s January 25th Executive Orders.” Julia Edwards Ainsley previously reported on this development in Reuters http://wp.me/p8eeJm-vF.
However, according to several sources, once at the “detail court” these judges often have precious little to do.
To paraphrase some familiar with the system, “The only ‘surge’ happening here is a surge of judges. There’s no surge of cases.” But, you can bet that there was a “surge in frustration” from those whose previously scheduled cases were rescheduled to accommodate these unneeded details.
Just another “keystone cops” episode at DOJ? Tempting analysis, but not so funny when you consider that human lives and futures are being affected. Also, transferring busy judges from already jam-packed dockets to do little or nothing at the border to keep the “political bosses” satisfied wastes the taxpayers’ money and undermines the credibility of the Immigration Court. That’s bad for everyone.
Most Immigration Judges I know are 1) busy all the time (unlike many other judges, Immigration Judges are expected to schedule cases eight hours/day, every work day of the week except for four hours/week of “administrative time” for case preparation, decision writing, and continuing education); 2) fanatic about wanting to complete the cases on their daily dockets.
Consequently, I doubt that any sitting Immigration Judge would have thought it was a good idea to cancel or reassign their regular dockets to do a minute number of cases as a detailed judge.
Moreover, because the Immigration Court is not “automated,” detailed Immigration Judges who have extra time have no access to pending motions that are piling up in their chambers during details. So, unlike the “home court” where a judge often can find “chambers work” to do during unanticipated “down time,” on detail “down time” is just that — wasted time.
Finally, there is the obvious question. What is a supposedly impartial, due process oriented court system doing mindlessly carrying out the President’s Executive Order on immigration enforcement to the derogation of its own already-pending cases? We need an independent Article I United States Immigration Court!
PWS
03/28/17
http://www.abajournal.com/magazine/article/legal_logjam_immigration_court
Lorelei reports:
“In the fall of 2016, the Executive Office for Immigration Review was busy addressing these problems by hiring aggressively, spokeswoman Kathryn Mattingly said.
As of March, she said the agency had 301 seated judges and had requested authorization for a total of 399 judgeships. Those new judges are welcomed by legal and immigration groups—including the ABA, which called for more immigration judges with 2010’s Resolution 114B.
But that effort may be overwhelmed by changes under the Trump administration. Trump’s actions since taking office emphasize enforcement; his executive orders call for 10,000 more ICE agents and 5,000 more CBP officers, and they substantially reduce use of prosecutorial discretion. In his first months in office, there were several high-profile deportations of immigrants who had previously benefited from prosecutorial discretion and had little or no criminal record.
Although the DOJ eventually said immigration judges weren’t subject to the hiring freeze, it’s unclear whether immigration courts will be funded enough to handle all the additional cases. If not, Schmidt says, wait times will only worsen.
“If they really put a lot more people in proceedings, then it seems to me the backlog’s going to continue to grow,” he says. “How are they going to take on more work with the number of cases that are already there?”
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This is just a small sample. Read Lorelei’s much lengthier and complete analysis of all of the problems, including interviews with a number of other experts and a cross-reference to the ABA’s previous work predicting just such a docket disaster at the above link.
In my view, the Trump Administration is aggravating the problem, rather than seeking to improve the delivery of due process. Given the nature of the system, they might get away with it for awhile. But, eventually, one way or another, these chickens are coming home to roost. And, when they do, it won’t be pretty for the Administration, for anyone involved with the U.S. Immigration Court system, and for the American system of justice.
PWS
03/27/17
Nolan writes:
“CBP is required by the William Wilberforce Trafficking Victims Protection Reauthorization Act to transfer the custody of unaccompanied alien children from Central America to ORR within 72 hours of determining that they are unaccompanied alien children. ORR promptly places them in the least restrictive setting that is in their best interests while they wait for an immigration hearing to be scheduled.
They normally are not held at a secure facility unless they are charged with criminal actions, pose a threat of violence, or are flight risks.
Unaccompanied alien children are not eligible for many forms of relief. Asylum is the most common. The only other possibilities I am aware of are “special immigrant juvenile status,” which requires a finding by a state juvenile court that they have been abused, neglected, or abandoned; and “T nonimmigrant status” for victims of trafficking.
Many of the children who are released from custody abscond instead of returning for their hearings. Between July 18, 2014, and June 28, 2016, removal proceedings were initiated in 69,540 cases. Only 31,091 of them were completed. Of the total completed cases, 12,977 resulted in removal orders, and 11,528 (89 percent) of the removal orders were issued in absentia because the children had absconded.
The post-Trump immigration court handles fewer unaccompanied alien children cases. This will increase the amount of time unaccompanied alien children have to wait for hearings, which is likely to increase the number of children who abscond.
Also, they will have less incentive to return for their hearings. In the more liberal Obama era, immigration judges granted asylum in up to 71 percent of their asylum cases. This is not likely to continue in the post-Trump era.
The fact that many unaccompanied alien children abscond is disturbing. We know very little about them.”
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Please read Nolan’s complete article over on The Hill at the link.
I have a few thoughts. First, although at the end of my career I was not assigned to the juvenile docket, I handled many juvenile cases over my 13 year career at the Arlington Immigration Court.
Even when I was not responsible for the juvenile docket, “mis-assigned” juvenile cases appeared on my docket on a regular basis, probably a consequence of the “haste makes waste” prioritization of juveniles by the Obama Administration. I never had a significant problem with juveniles “absconding.”
Not surprisingly, this is borne out by the facts. Studies show that represented juveniles appear for their hearings about 95% of the time. That suggests that the real effort should be on working with the pro bono bar to ensure that juvenile cases are scheduled in a manner that promotes maximum representation at the first hearing. Presto, the largely imaginary problem with “absconding” juveniles disappears.
See this link to an American Immigration Council analysis:
Taking Attendance: New Data Finds Majority of Children Appear in Immigration Court | American Immigr
Second, in the small number of cases where juveniles did not appear, the problem was almost always with the Government system, not the juveniles. Indeed, the suggestion that children, some infants, other toddlers, “abscond” is prima facie absurd.
There are a number of reasons why juveniles might not appear: 1) in their haste to move these cases through the system, DHS often incorrectly transmits the U.S. address to the Immigration Court; 2) under pressure to fill “priority” dockets required by the Obama Administration, the Immigration Court, which still operates with a manual data entry system, sometimes sent the notice to a wrong address; and 3) almost all juveniles have to rely on adult “sponsors” to get them to court. Depending on the degree of understanding and responsibility on the part of the sponsor, this might or might not happen.
When the court appearance requirements are properly communicated and understood by the sponsor, and where the juvenile has realistic access to legal representation, there simply are not many “no show” issues. In Immigration Courts that put due process first, most no-shows are eventually reopened when the juvenile and the sponsor discover the problem and explain the failure to appear. Therefore, large numbers of “in absentia” juvenile cases suggests to me a problem with the system, and, perhaps, with particular Immigration Judges, rather than the juveniles.
Here’s a link to a L.A. Times article on in absentia orders for unaccompanied children.
http://www.latimes.com/local/california/la-me-children-deported-20150306-story.html
Third, Nolan’s reference to the “liberal” Obama administration seems gratuitous. The Obama Administration did little of substance to help juveniles and, to my knowledge, most of the precedents issued by the BIA made it more difficult, rather than easier, for juveniles from the Northern Triangle to get relief.
Nevertheless, juveniles were able to succeed at a fairly high rate where they obtained competent representation, Immigration Judges fairly applied the generous standards for asylum, and also gave the children adequate time to pursue other forms of relief such as those mentioned by Nolan.
The nationwide asylum grant rate in the most recent year was approximately 47%, not 71%. The latter was just one of the courts with a higher rate. But, there were also courts like Atlanta, with a 2% rate who were not doing a fair job of asylum adjudication.
In any event, there is every reason to believe that most of the juveniles in the system had at least a “respectable” chance of success in remaining.
It’s possible that the Trump Administration will attempt to “game” to system to depress grant rates. Such conduct appears on its face to be both illegal and contrary to the generous standard for asylum established by the U.S. Supreme Court in INS v. Cardoza-Fonseca.
To date, I am aware of no such overt attempt by the Administration to interfere with the fair adjudication of asylum claims. However, I do acknowledge that the general tone of the Executive Orders is xenophobic and disparaging to refugees and immigrants. At some point, the Article III Courts will decide whether or not the Administration is complying with the requirements of U.S. law and various international protection agreements.
Finally, I think that Nolan’s suggestion that unaccompanied children be sent to third countries for U.N. processing would be a violation of both the INA and the Wilberforce Act. While there is a provision in the INA for sending individuals who arrived in “safe third countries” back to those countries for asylum adjudication, to date it only applies to Canada and is limited in a way that would make it inapplicable to the Southern Border Central American cases.
The U.S. would do far better to acknowledge the legitimate fears that cause women and children to flee countries in the Northern Triangle. Dealing with the problems at their source, which is likely to be a long-term prospect, while providing at least some type of screening and temporary refuge short of asylum, would, in my view, be a much better and more humane solution to this chronic issue than the enforcement initiatives proposed by the Trump Administration.
PWS
03/27/17
The AP reports in the NY Times:
“A blogger from Singapore who was jailed for his online posts blasting his government was granted asylum to remain in the United States, an immigration judge ruled.
Amos Yee, 18, has been detained by federal immigration authorities since December when he was taken into custody at Chicago’s O’Hare International Airport. Attorneys said he could be released from a Wisconsin detention center as early as Monday.
Judge Samuel Cole issued a 13-page decision Friday, more than two weeks after Yee’s closed-door hearing on the asylum application.
“Yee has met his burden of showing that he suffered past persecution on account of his political opinion and has a well-founded fear of future persecution in Singapore,” Cole wrote.
Yee left Singapore with the intention of seeking asylum in the U.S. after being jailed for several weeks in 2015 and 2016. He was accused of hurting the religious feelings of Muslims and Christians in the multiethnic city-state. Yee is an atheist.
Many of his blog and social media posts criticized Singapore’s leaders. He created controversy in 2015 as the city-state was mourning the death of its first prime minister and he posted an expletive-laden video about Prime Minister Lee Kuan Yew just after his death.
Such open criticism of political leaders is discouraged in Singapore. The case raised questions about free speech and censorship and has been closely watched abroad.
Cole said testimony during Yee’s hearing showed that while the Singapore government’s stated reason for punishing him involved religion, “its real purpose was to stifle Yee’s political speech.” He said Yee’s prison sentence was “unusually long and harsh” especially for his age.
Singapore’s government criticized the decision.”
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Mr. Yee was successfully represented by Maryland immigration attorney Sandra Grossman of Grossman Law LLC.
As I have mentioned before in this blog, most fully litigated U.S. Immigration Court cases today, particularly those involving asylum or criminal law, involve exceptionally complex, and often sensitive, issues of law and fact which can’t be fairly resolved in a one to two hour time block. Yet, most of the Administration’s recent enforcement initiatives seem to assume that Immigration Court is an “assembly line” and that U.S. Immigration Judges are more or less “assembly line workers” who can be detailed to obscure locations on demand and perhaps required to work “night shifts” to keep the “deportation railroad running at full throttle.”
But, due process is not an assembly line operation. It usually takes time, expertise, careful scholarship, and detailed fact-finding for U.S. Immigration Judges to produce fair decisions that will pass muster upon judicial review in the Circuit Courts of Appeals. (I note that the Administration’s first, high-profile attempt to “ram” an immigration case — “Travel Ban 1.0” — through a Court of Appeals was spectacularly unsuccessful.)
These days, most individuals who are represented by competent counsel and reach the “Individual (Merits) Hearing” stage have at least some plausible defenses to removal. Indeed, a 2016 study by TRAC Immigration showed that more than half (57%) of the total dispositions in U.S. Immigration Court favored the individual. http://trac.syr.edu/immigration/reports/435/
And, this was during the Obama Administration which already was prioritizing so-called “serious criminals.” By expanding the “criminal alien” definition to include minor criminals and non-criminals, the Trump Administration will probably be taking on even more cases where it ultimately will fail to get a “final order of removal” unless concerted attempts are made to “game the system” to insure that individuals lose (for example, by denying individuals fair access to counsel or using prolonged detention in poor conditions as a device to persuade individuals to abandon their claims to remain in the US).
PWS
03/26/17