☠️☹️ “AMERICA’S MOST BROKEN COURT!” — Jeremy McKinney “Outs” EOIR on Slate!

 

Star Chamber Justice
Appearing before EOIR courts can be highly stressful — not everyone survives the ordeal! Here, a 3-judge panel deliberates the fate of an asylum seeker using traditional methods.
Jeremy McKinney
Jeremy McKinney, Esquire
Greensboro, NC
AILA President

Jeremy writes:

https://slate.com/news-and-politics/2023/10/the-most-broken-court-in-america.html

As Congress returns to action after House Republicans were finally able to elect a speaker of the House following a weekslong impasse, one area they seem determined to address is border policy. Unfortunately, there seems to be much less interest in tackling one of the most important parts of our immigration system: immigration courts.

To put it mildly, there are a lot of misunderstandings about immigration court, and how things work or don’t work. As someone who’s been working in immigration courts for 25 years, I can say there are a myriad of ways things can and should be better.

First, the distances between immigration courts and the people who need to use them are often vast. My office is in Greensboro, North Carolina; my immigration court is in Charlotte. My clients typically travel from two to five hours to appear in court.

I once represented two children—a brother and sister from Central America—in immigration court proceedings. They had been sold by their father into domestic servitude and then abused by the people who trafficked them. The children escaped and reached the United States.

To prove they deserved asylum under our laws, they had to share what happened to them. The brother was so young, he struggled to articulate the horrors he experienced, while his older sister bore the deep scars of trauma, ones so severe that she had attempted to take her own life while her case in court was pending.

pastedGraphic.pngAs horrifying and clear-cut as their stories seemed, the siblings faced a bewildering array of legal challenges. Their notices to appear lacked any hearing date, leaving them confused about when to appear. Immigration judges frequently order people removed for not appearing, despite the countless examples of ways in which the bureaucracy fails to inform people what their obligations are.

Before filing their asylum applications, I had to send a copy to U.S. Citizenship and Immigration Services to trigger biometrics appointments for their criminal and security background checks. Some judges have ordered people removed for not having the biometrics done even though there isn’t anything they can do except request an appointment. Without a competent attorney working with you, it is impossible to make your way through all these pitfalls; errors at any of these stages could have resulted in them losing their asylum case—a devastating consequence and really a matter of life or death.

Prior to the hearing, I tried to contact the Immigration and Customs Enforcement attorney in their case to narrow down the legal issues. But the ICE attorney never responded, which is unfortunately common. In fact, ICE has recently instructed their attorneys that they don’t even need to appear in court. In any other court, if the trial attorney didn’t show up, the case would be dismissed. But not in immigration court.

Ultimately these siblings won their case because at the time, fear of persecution on account of kinship and domestic abuse was recognized as a valid basis for asylum. But several years after they won, then-Attorney General Jeff Sessions changed asylum law using his unusual power to override immigration court decisions and tried to block kinship and abuse cases as bases for gaining asylum.

The simple truth is that immigration courts are not real courts. The Executive Office for Immigration Review, or EOIR, is an arm of the Department of Justice headed by a political appointee, the attorney general. The attorney general has total authority over EOIR—including the power to hire the judges and re-adjudicate any case they decide. In an appeal, the attorney general represents the government in seeking to deport the person instead of remaining the neutral decision-maker. Given their very structure, the courts are not fair.

. . . .

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Read the rest of the article at the link.

Notably, the notice issue, such as the lack of a hearing date, time, and place, as required by statute, has reached the Supremes for the third time. A better BIA would have followed the statute and held DHS accountable right off the bat.

Instead, Garland continues to waste the time of the  Supremes mindlessly defending the BIA’s decision to “paper over” what at best are “worst practices,” and in the view of the Round Table and other experts, a blatant violation of the statute! See, e.g., https://immigrationcourtside.com/2023/10/31/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%91%a9%f0%9f%8f%bd%e2%9a%96%ef%b8%8f%f0%9f%91%a8%f0%9f%8f%bb%e2%9a%96%ef%b8%8f-round-table-gibson-dunn-pro-bono-provide-supremes-with-expert-inpu/.

This is just one of many problems that, in the absence of long-overdue Congressional action to establish an independent Article I Court, as urged by Jeremy and other experts, Garland has failed to address with administrative reforms and needed personnel changes within his sole authority!

🇺🇸 Due Process Forever!

PWS

11-01-23

⚖️🗽 SENATE HEARING SHOWS OVERWHELMING NEED FOR ARTICLE I IMMIGRATION COURT, GOP PREFERS MYTHS & FEAR-MONGERING TO PROBLEM SOLVING!🤯 — ALSO: Youngkin’s Border Boondoggle Exposed By NBC 4 I-Team!

Ariana Figueroa
Ariana Figueroa
D.C Reporter
States Newsroom
PHOTO: States Newsroom

https://sourcenm.com/2023/10/19/independent-immigration-court-system-advocated-in-u-s-senate-hearing/

Ariana Figueroa reports for Source New Mexico:

WASHINGTON — An immigration judge and lawyer told a U.S. Senate Judiciary panel on Wednesday that an independent immigration court would help ease a  backlog of more than 2 million pending cases.

Because the immigration court system is an arm of the U.S. Justice Department — the Executive Office for Immigration Review — each presidential administration has set immigration policy, and often those courts are subject to political interference, said Mimi Tsankov, an immigration judge, and Jeremy McKinney, an immigration attorney.

In the immigration court system, judges hold formal court proceedings to determine whether someone who is a noncitizen should be allowed to remain in the United States, or should be deported.

“Every administration has interfered with the courts. This undermines the courts’ integrity, and many of the executive branch’s manipulations of judges and their dockets simply backfire,” said McKinney, the former president of the American Immigration Lawyers Association.

Tsankov, the president of the National Association of Immigration Judges, said in order to alleviate the backlog of immigration court cases, Congress should establish an independent immigration court under Article I of the U.S. Constitution.

. . . .

“An independent board will begin the process of healing this broken system,” she said.

The witnesses also argued that many people going through the immigration system lack legal representation, which can greatly impact their outcome.

The top Republican on the Senate panel, John Cornyn of Texas, argued that most cases are without merit, as opposed to asylum cases, which are based on a credible fear of death or harm. He said that people are “clogging the courts” and are aware the severe backlogs will allow them to stay in the country. Some courts have backlogs until 2027.

Sen. Mazie Hirono, Democrat of Hawaii, pushed back.

“People who have attorneys are 10.5 times more likely to be granted relief,” she said. “So it is when they have attorneys that they can proceed with their asylum claims.”

She added that another issue is that many children who are unaccompanied, even some toddlers, are expected to legally represent themselves.

“There is no guarantee that children will also have a lawyer, and this is alarming because children are some of the most vulnerable people in our immigration system,” she said.

Cornyn said he did not believe that “the taxpayer should be on the hook” for paying for legal fees and representation.

McKinney said that those who have representation and are not detained are five times more likely to gain relief. Immigrants who are detained and have legal representation are 10 times more likely to be granted relief than those who do not have representation.

“The point is that representation ensures due process,” he said. “It also makes the system more efficient when all the parties know the rules and know how to present a case. Cases move faster.”

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Read the full article at the above link. You can also check out the full video of the hearing here:

https://www.senate.gov/isvp/?auto_play=false&comm=judiciary&filename=judiciary101823&poster=https://www.judiciary.senate.gov/assets/images/video-poster.png&stt=

In his opening statement, ranking GOP Sen. Cornyn made it very clear that fixing the Immigration Courts is a nonstarter for the GOP. 

Instead of engaging on this critically important initiative, he wasted much of his introduction disingenuously repeating the oft-debunked claim of a connection between asylum seekers and fentanyl smuggling. See, e.g., “Who is sneaking fentanyl across the southern border? Hint: it’s not the migrants,”  https://www.npr.org/2023/08/09/1191638114/fentanyl-smuggling-migrants-mexico-border-drugs.

Obviously grasping at straws, in the absence of any empirical support for his nativist “scare scenario,” Cornyn went so far as to suggest — of course without a shred of evidence — that perhaps “go-arounds” were smuggling fentanyl. 

This theory appears particularly questionable in light of evidence that most fentanyl is successfully smuggled through ports of entry by U.S. citizens and legal residents. Why would cartels abandon proven successful methods of port of entry smuggling to entrust their cargos to individuals who might not even survive the border crossing and, if apprehended, would certainly be searched? Cornyn had no answer.

What does seem likely is that by concentrating border law enforcement largely on “apprehending” and fruitlessly trying to “deter” those merely seeking to turn themselves in to exercise legal rights, the USG has diverted attention and resources from real law enforcement like an anti-fentanyl strategy. That almost certainly would require undercover infiltration of smuggling rings — dangerous and sophisticated law enforcement operations far removed from “apprehending” folks who WANT to be caught because they were forced to leave their home countries, are unsafe in Mexico, and can’t wait to schedule asylum appointments at ports of entry through the badly flawed and inadequate “CBP One App!” Building a fair and efficient asylum system should even help CBP apprehend more of Sen. Cornyn’s “go arounds!”

But, Cornyn’s misdirection isn’t just a distraction; it’s actually dangerous! As the GOP has shown over and over, if you repeat a lie or myth enough times, folks start to believe it. Witness the demonstrably totally frivolous claims of election interference that drive much of the GOP’s agenda and has become “truth” for their misguided “base.”

A case in point is the outrageous political boondoggle recently carried out by Virginia’s right-wing Governor Glenn Youngkin. In response to Texas Gov. Greg Abbott’s White Nationalist plea, Youngkin wasted two million taxpayer dollars on a bogus detail of the National Guard to the Texas border, ostensibly to “protect Virginians from the scourge of fentanyl.”

However, a recent NBC 4 DC investigative team report showed that the Guard encountered no fentanyl at the border!  They accomplished nothing notable except to deny thirsty migrants they encountered water — on orders from Abbott’s troops! See https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwi7zp3Pq4eCAxVjEFkFHSmyAHYQFnoECA4QAQ&url=https://www.nbcwashington.com/investigations/inside-virginia-national-guards-2m-border-mission/3445536/&usg=AOvVaw3aI4OM_UhxJFVsE-bS3GYT&opi=89978449. As we often say, “The cruelty is the point!”

What if Youngkin had spent the same amount of money supporting NGOs in Virginia struggling to resettle and represent migrants aimlessly bussed to the DMV by Abbott and DeSantis as part of a political stunt? Community social justice NGOs generally use funds more carefully and efficiently than GOP blowhards like Youngkin and co.

The GOP claim that most asylum claims are frivolous also is misleading. For those who can actually get a merits hearing on asylum at EOIR — often in and of itself no mean feat given the prevalence of “Aimless Docket Reshuffling” — TRAC statistics for FY 2022 show that 46% are granted. See https://trac.syr.edu/whatsnew/email.221129.html#. And, this is in a system that is still heavily tilted against asylum seekers. EOIR still has many “holdover judges” from the Trump years who were hired not because of their expertise, qualifications, or reputations for fairness, but because their backgrounds indicated that they were likely to be unsympathetic to asylum seekers!

Moreover,  contrary to myth, the vast majority of represented asylum seekers show up for their immigration hearings. See, e.g., https://www.americanimmigrationcouncil.org/news/11-years-government-data-reveal-immigrants-do-show-court.

Admittedly, the manner in which EOIR keeps asylum statistics can make meaningful analysis difficult. For example, more than half of asylum “dispositions” are listed as “other” — which covers  “abandoned, not adjudicated, other, or withdrawn,” a facially, at least partially, circular definition! See https://www.justice.gov/media/1174741/dl?inline. 

Moreover, since EOIR procedures generally require that all potential relief be stated at the time of pleading or presumptively be waived, prudence requires that the right to appply for asylum be protected, even if it is unlikely that the case will proceed to the merits on that application.

Also, it’s worth remembering that the Government already has a powerful tool for both identifying and quickly tossing frivolous asylum claims and expeditiously granting clearly meritorious claims to keep them out of the Immigration Court. It’s called the Asylum Office at USCIS! That despite much ballyhooed regulatory changes, DHS has failed to obtain “maximum leverage” from the credible fear/Asylum Office process is not a reason for eschewing EOIR reform!

What we can tell from the available data is that, rather than wasting more money on expensive and ineffective “deterrence gimmicks,” the best “bang for the buck” for the USG would be to invest in representation for asylum seekers and in a better, professionally-managed EOIR with better, independent judges, acknowledged experts in asylum law, who could “keep the lines moving” without denying due process or stomping on individual rights. They could also set helpful precedents for the Asylum Office. That’s what Congress and the Administration should be investing in.

Reforming the Immigration Courts and creating an independent Article I Court should be a high national priority. While no single action can bring “order to the border” overnight, fixing EOIR is an achievable priority that will support the rule of law and dramatically improve the quality and efficiency of justice at the border and throughout the U.S.

As Chairman Padilla (D-CA) said, this should be a bipartisan “no-brainer.” Just don’t look to today’s White-Nationalist-myth-driven GOP for help or rational dialogue on the subject.

🇺🇸  Due Process Forever!

PWS

10-21-23

🗽 AFTER DECADES OF INEXCUSABLE FAILURE & CRUEL GIMMICKS, AMERICA 🇺🇸 CAN & SHOULD DO MUCH BETTER FOR ASYLUM SEEKERS — AN ESSENTIAL GROUP OF LEGAL IMMIGRANTS —  New AILA Report Tells How! ⚖️

Clown Parade
AILA says this vision of the USG’s Asylum Program could be changed for the better. PHOTO: Public Domain

https://www.aila.org/highstakesasylum

Introduction 

There should be a process, but there does need to be some space to be able to do this process. When you are in the thick of applying for asylum, you’re going to commit errors, you’re going to make mistakes, and it’s my understanding that these are the things that get you sent home. The work of an attorney is so important because you [as the applicant] have to turn over your soul, the best of you in this interview. The hardest part is the time, and the details required to demonstrate to the U.S. you are worthy of being allowed to remain herei 

Lara Boston, MA Recently received her green card based on an asylum grant. 

For people fleeing violence and persecution, nothing is more important than finding safety. For more than 40 years, U.S. asylum law has guaranteed asylum seekers the right to access legal protections enabling them to stay in the United States and avoid being returned to danger. But since the Refugee Act was signed into law in 1980, the laws on asylum eligibility have grown into a maze of convoluted requirements and pitfalls, like the children’s game “Chutes and Ladders,” with potentially deadly consequences. 

Because of the complexity and requirements of asylum law, it takes time to prepare an asylum application. In my 25 years of practice, I have prepared and filed hundreds of asylum applications. Based on my experience, it takes time to get an accurate account of someone’s life when there’s violence and trauma involved. It takes time to find evidence of torture and persecution. When you read this report, I encourage you to try to imagine navigating the complex legal steps in the asylum process. Then, imagine doing it without an attorney, a nearly impossible task as extensive research and data has shown.1 

This report comes at a critical moment when increased migration to the U.S. southern border and intense political pressure are pushing lawmakers to process asylum seekers faster. Faster can be accomplished, but it must also be fairer. If the system is fair, people meriting protection will receive it and those not eligible can and must depart. Toward that end, this report includes several recommendations that improve asylum processing so that it is both fair and more efficient. It is our hope that this report will contribute to policy reforms that are grounded in the realities of asylum law and the system that implements it. 

Jeremy McKinney President, American Immigration Lawyers Association (AILA) 

i Quotes by Lara throughout the report are from an interview conducted primarily in Spanish and then translated into English. 

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 3 AILA Doc. No. 23061202. (Posted 6/14/23) 

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Executive summary and recommendations 

The heightened levels of migration worldwide are drawing intense political and media attention to the United States’ southern border, including radical calls for blocking access to asylum seekers that would undo longstanding American humanitarian principles. More balanced, smarter approaches are available. In fact, since taking office, the Biden Administration has implemented several such policies, including the scale-up of resources to screen asylum seekers at the border and the expansion of existing legal pathways for people to obtain protection. 

Unfortunately, the President is also accelerating and truncating the asylum system in an attempt to speed up the process with policies like the 2022 asylum processing rule and the dedicated dockets program.ii AILA has forcefully opposed these recent policies because they are restricting or blocking asylum access and, as a result, deeply compromising the integrity and fairness of the U.S. system.iii 

This report on the asylum process draws principally upon the expertise of AILA’s membership of more than 16,000 immigration attorneys and law professors nationwide who provided more than 300 detailed responses to a survey about the critical steps and time required to prepare an asylum case.iv The report’s principal conclusion is that the minimum time required for an attorney to properly prepare an asylum case is 50 to 75 hours. While this estimate accounts for some complications, an asylum case can take much longer. For example, the attorney may need to find evidence of torture in a country that is still wracked by political violence or devote extensive interview time to obtain sensitive information from the asylum applicant while they are still suffering from trauma. See Appendix I. 

The government can greatly increase the efficiency of the asylum process by increasing agency resources and capacity and by eliminating existing delays within the system. Some of those steps are being taken, but further action is urgently needed . AILA recommends the Biden Administration use a systemwide, all-of-government approach to implement a range of solutions that will improve asylum processing and the management of migration at the U.S. southern border. 

America needs an asylum system that is in line with the nation’s commitments to protect asylum seekers and ensure a fair legal process while also meeting the urgent demand for greater efficiency and capacity. The country’s immigration system must be able to quickly identify who has a legitimate claim for humanitarian protection and who does not. Those not eligible should be required to depart. But imposing strict, arbitrary timelines for asylum that do not allow for adequate preparation will result in eligible asylum seekers being denied protection and sent back to face persecution or death. 

ii The asylum processing rule is formally known as “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.” New enrollment is currently paused as the Biden administration focuses on the transition away from Title 42. For recent updates, see Featured Issue: Asylum and Credible Fear Interim Final Rule, AILA, https://www.aila.org/advo-media/issues/featured-issue-asylum-and-credible-fear#:~:text=The%20 interim%20final%20rule%20%E2%80%9CProcedures,for%20individuals%20in%20expedited%20removal. See infra at Biden administration fast-tracked programs limit the opportunity to access counsel for more information on the asylum processing rule and the dedicated docket program. 

iii E.g., AILA and the Council Submit Comments on Credible Fear Screening and Asylum Processing IFR, May 26, 2022, https:// www.aila.org/infonet/comments-on-credible-fear-screening; AILA Joins Legal Service & Mental Health Providers in Letter to Administration Expressing Grave Concerns over the “Dedicated Docket”, Oct. 5, 2022, https://www.aila.org/advo-media/ aila-correspondence/2022/letter-to-administration-expressing-grave-concerns; AILA and the Council Submit Comments on Circumvention of Lawful Pathways Proposed Rule, Mar. 26, 2023, https://www.aila.org/infonet/comments-on-circumvention- of-lawful-pathways. 

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iv See Appendix II. 

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 4 AILA Doc. No. 23061202. (Posted 6/14/23) 

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Ultimately, systemwide changes can only be accomplished through congressional action to appropriate the funding required to meet these systemic demands. After three decades of inaction, Congress must pass immigration laws that ensure America’s immigration system is ready for the future. 

Key findings 

  • The basic steps of preparing an asylum application takes an estimated minimum of 50 to 75 hours. This work cannot be done in one continuous period; instead, it is carried out over the course of several months. Cases with significant complexity can take far more time than this estimate.
  • Most asylum cases are not straightforward. Complicating factors that add time to an asylum case may include detention, past trauma experienced by the applicant, language barriers, and procuring evidence from foreign countries or expert witnesses such as medical testimony.
  • It is extremely difficult for an asylum seeker represented by counsel to sufficiently develop their asylum application within the mandatory deadlines established in the May 2022 asylum processing rule or the expedited family court “dedicated dockets.”
    AILA recommendations
    Ensure asylum timelines do not undermine fairness
  • When setting asylum processing deadlines, allow adequate time for an asylum seeker to obtain counsel and for the attorney to prepare for the case. Timelines should not rush trauma survivors who may need more time to recount their experience. Reasonable continuances should be allowed to obtain an attorney or for attorney preparation.
  • Waive or exempt asylum seekers from deadlines if the reason the deadline was not met is outside of their control.
  • Do not hold asylum seekers to the same evidentiary standards when they are subject to expedited adjudication timelines, such as the shortened deadlines of the 2022 asylum processing rule.
    Reduce government delays and inefficiency
  • Establish uniform policies, centralized systems, and appropriate information sharing between immigration agencies. Agencies should centralize and digitize address changes across all agencies and simplify access to a noncitizen’s immigration record. These steps will enhance communication and data sharing, which will in turn reduce backlogs, avoid delays, and increase efficiency and fairness.
  • Reduce the immigration court backlog. Executive Office for Immigration Review (EOIR) should continue expanding initiatives to remove cases from the docket or facilitate the resolution of cases through pretrial conferencing. Immigration judges should administratively close or terminate appropriate cases, such as those eligible for a benefit with U.S. Citizenship and Immigration Service (USCIS).2
  • Do not expend finite prosecutorial resources on cases that can be resolved more expeditiously. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA) attorneys should engage in pretrial negotiations and exercise prosecutorial discretion to avoid unnecessary litigation.
    High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 5 AILA Doc. No. 23061202. (Posted 6/14/23)

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Legal access and representation improve fairness and government efficiency 

  • Ensure asylum seekers and other migrants being processed rapidly at the U.S. southern border have access to legal information, advice, and full counsel during credible fear interviews (CFIs), Customs and Border Protection (CBP) inspections, and immigration court proceedings.
  • Congress should Fund the Department of Justice (DOJ) to provide legal representation for all immigrants. Everyone needs access to an attorney to provide legal advice and information prior to any hearings, including the CFI. Congress should appropriate DOJ funding to provide full legal representation to those in removal proceedings who cannot afford it.
  • Ensure access to counsel in all detention facilities. Detention facilities must be held accountable to policies that ensure attorneys have reliable confidential contact visits with clients, as well as access to free and confidential phone calls and video conferences. The government must monitor access to counsel at ICE facilities and impose penalties for violations of standards.
    Reduce immigration detention

Reduce immigration detention. Detention delays asylum cases because it creates barriers to obtaining counsel and makes case preparation far more difficult. The Department of Homeland Security (DHS) should reduce its use of immigration detention. 

Improve the asylum process 

  • The Biden administration should publish the long-awaited regulation on particular social group (PSG) asylum cases. On February 20, 2021, President Biden issued an executive order to promulgate this regulation by November 17, 2021,3 but it has not been published. A regulation would aid in consistency of application of asylum law and would reduce USCIS referrals to immigration court.
  • Increase transparency in adjudications by making DHS’s asylum officer training materials publicly available.
  • Establish an interagency task force to develop a trauma-informed adjudication system. Experts in development, mental health, welfare, and trauma science should all be involved in this process. A trauma-informed adjudication process will help ensure accurate adjudications in the first instance, which in turn will decrease appeals.
  • Fund additional asylum officers. Congress should appropriate funds to increase the capacity of USCIS to adjudicate asylum applications.

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 6 AILA Doc. No. 23061202. (Posted 6/14/23) 

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

Download and read the complete report and view accompanying video at the above link!

Amy R. Grenier
Amy R. Grenier ESQ
Immigration Attorney
Washington, D.C.
PHOTO: Linkedin

Here’s one of my favorite comments on Linkedin from an all-star member of the NDPA, Amy R. Grenier:

A year ago, I wanted to cite something in a regulatory comment, but the cite I needed didn’t exist yet.

Today, the American Immigration Lawyers Association released a report on asylum timelines, High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better. The report is based on a survey of over 300 asylum attorneys about how much time it takes to prepare an asylum application, and what complications add significant time. High-Stakes Asylum also includes recommendations on how to inject efficiency into the existing asylum process and ensure the integrity of a system that has life-and-death consequences.

I hope that you find it helpful to cite someday #immigration #lawyers #HighStakesAsylum!

Three decades ago, when I was practicing business immigration at Jones Day, we also did a robust pro bono Immigration Court BIA practice in which I played an advisory role. Even then, we allocated a minimum of 100 hours of attorney/paralegal prep time for an asylum case in Immigration Court and 40 hours for a BIA appeal. 

And, at that time, the system probably wasn’t as “intentionally user unfriendly” as it is now. On some occasions, we were responding to requests for pro bono representation from Immigration Judges who believed that without representation certain previously unrepresented detained cases would “be lost and linger in the system forever.” That was long before 2 million case backlogs!

Representation is essential for due process at EOIR! This fundamental truth is neither new nor is it “rocket science!” That politicians of both parties and Article III Judges have swept this truth under the carpet doesn’t make it less true! If lives of persons who didn’t have the bad fortune to be immigrants were at issue, this intentionally due-process-denying system would have been held unconstitutional by the Supremes decades ago!

Unfortunately, A.G. Garland has fashioned a “highly, unnecessarily, and intentionally user unfriendly system” that actually discourages and impedes pro bono and low bono representation.

Alfred E. Neumann
Immigration experts and long-suffering advocates have become weary of AG Garland’s “above the fray” attitude and substandard performance on human rights and equal justice in America!
PHOTO: Wikipedia Commons

Even worse, he and his subordinates have failed miserably to “fully leverage” the amazing VIISTA Villanova program for training more highly-qualified non-attorney “accredited representatives” to rapidly close the representation gap throughout the nation. The asylum litigation “training modules” put together by VIISTA founder Professor Michele Pistone, with help from the National Institute for Trial Advocacy (“NITA”) puts EOIR/DOJ/DHS asylum training to shame! 

Professor Michele Pistone
Professor Michele Pistone
Villanova Law  — The founder of VIISTA Villanova, brilliant lawyer, inspirational leader, teacher, scholar, social justice mavan, why isn’t she running and reforming EOIR? Why is Garland afraid of a proven “creative disrupter” driven 100% by a commitment to equal justice for all?

Incredibly, the Biden Administration “blew off” recommendations by experts that Professor Pistone or one of her colleagues be recruited to “shake up” EOIR and radically reform and improve training in asylum and other forms of protection.

Lack of fundamental expertise and private sector expedience representing asylum seekers is a key reason why EOIR under Garland continues to “wander in the wilderness” of legal dysfunction with no way out! So unnecessary! So damaging to democracy!

Jeremy McKinney
Jeremy McKinney, Esquire
Greensboro, NC
AILA President

Many thanks to Jeremy McKinney, Greg Chen, and others who worked on the AILA report. Cite it! Use it! Demand that Congress heed it! Use it to force justice into Garland’s failed, dysfunctional, and unfair “Clown Courts!”🤡

🇺🇸 Due Process Forever!

PWS

06-16-23

🏴‍☠️🤮👎🏽 WHAT’S GARLAND DOING? — LATEST 4TH CIR. REJECTION OF ABSURDIST EOIR ASYLUM DENIAL SHOWS WHY GARLAND MUST “PULL THE PLUG” 🔌 ON THE BIA! — While He’s At It, He Needs To Look At OIL’s Mindless “Defense Of The Clearly Indefensible!” — Why Are American Women Giving Garland A “Free Pass” On Overt, Institutionalized, Racially-Charged, Misogyny @ His DOJ?

Doctor Death
Would you want this guy as your Immigration Judge or BIA “panel?” If not, tell Garland to “pull the plug” on his deadly and incompetent BIA!
Public Domain

https://www.ca4.uscourts.gov/opinions/201762.P.pdf

Sorto-Guzmán v. Garland, 4th Cir., 08-93-22, published

PANEL:  KING and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.

OPINION: Judge FLOYD

KEY QUOTE:

In sum, we hold that the IJ’s decision, which the BIA adopted, blatantly ignored our long line of cases establishing that the threat of death alone establishes past persecution. This was legal error, and therefore, an abuse of discretion. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). We hold that Sorto-Guzman has established she was subjected to past persecution in El Salvador.2 She is thereby entitled to the presumption of a well-founded fear of future persecution. Li, 405 F.3d at 176; 8 C.F.R. § 208.13(b)(1). The IJ and the BIA erred in not affording Sorto-Guzman this presumption, which would

2 Sorto-Guzman argues, in the alternative, that the IJ and the BIA erred in finding that she failed to establish a well-founded fear of future persecution. We will not answer that question today. Because we hold that she properly established past persecution, the proper remedy is to remand the case to the BIA to consider the question of whether DHS can rebut the presumption that Sorto-Guzman has a well-founded fear of future persecution.

 11

have then shifted the burden to DHS to rebut the presumption. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004); 8 C.F.R. § 1208.13(b)(1)(i).

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

 

Sorto-Guzman is a life-long Catholic who regularly attended Catholic services in El Salvador. In December 2015, about five members of the Mara 18 gang accosted Sorto- Guzman in the street as she was leaving church. At the time, she was wearing a crucifix medallion around her neck. The gang members tore the chain from her neck, hit and kicked her, and threatened to kill her if she ever wore it or attended church again. Sorto-Guzman stopped attending church after the attack, fearing the gang and their threats.
A few weeks later in January 2016, a group of Mara 18 gang members—including some of the gang members from the December 2015 assault—stopped Sorto-Guzman, along with her sister and Rivas-Sorto, as she was coming home from a shopping trip. One of the men attempted to sexually assault Sorto-Guzman and had started to forcefully kiss her. He only stopped when her screams caught the attention of a neighbor. The gang members threatened to kill Sorto-Guzman and Rivas-Sorto if Sorto-Guzman did not join the gang and start living with them.
3

On February 13, 2016, some of the gang members from the prior incidents tracked where Sorto-Guzman lived and broke into her house carrying guns. The gang members viciously beat Sorto-Guzman, threatened her life, and robbed her. Sorto-Guzman’s neighbors called the police, but they did not come until several hours after the assault. Sorto-Guzman reported the assault and robbery to the officers who arrived at the scene. She also went to the local police station the next day to report the attack. The police made one attempt to investigate, but Petitioners were not home when the police arrived, and the officers never followed up. The day after, a gang member called Sorto-Guzman, warning her she would regret making the report to the police and that they would soon kill her, her son, and her sister.

Absurdly, an Immigration Judge found that this gross abuse and death threats by a gang with the ability and willingness to carry them out did not amount to “persecution.” Worse yet, on appeal, rather than reversing and directing the judge below to follow the law, the BIA agreed — invoking the outlandish “theory” that the death threats, on top of the savage beating, weren’t so bad because they had never come to “fruition.” In other words, the applicant hadn’t hung around to be killed. Then, to top it off, attorneys from the DOJ’s Office of Immigration Litigation (“OIL”) unethically defended this deadly nonsense before the Fourth Circuit! This is “justice” in Garland’s disgraceful, deadly, and dysfunctional “court” system!

Trial By Ordeal
Garland’s BIA Judges applying the “fruition” test. If she lives, it’s not persecution!
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

NOT, a “mere mistake.”

EOIR’s performance is this case, particularly the BIA’s absurdist conclusion that, essentially, death threats must result in death to constitute past persecution, is a contemptuous disregard for binding circuit precedent, a demonstration of gross anti-asylum bias, misogyny, and a clear example of judicial incompetence.

Would a heart transplant surgeon who “forgot” to install a new heart or neglected to sew up the patient’s chest be allowed to continue operating? Of course not! So, why is the BIA still allowed to botch life or death cases — the equivalent of open heart surgery?

If Garland allows his “delegees” to perform in this dangerous and unprofessional manner, in his name, what is he doing as Attorney General? This is a farce, not a “court system?” Those responsible need to be held accountable! And, OIL’s unethical defense of this deadly nonsense is indefensible!

Alfred E. Neumann
“What are legal ethics?  Not my friends or relatives whose lives as being destroyed by these ‘Kangaroo Courts.’ Just ‘the others’ and their dirty immigration lawyers!  So, who cares? Why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

We’ve heard lots lately from Garland about “accountability.” Why doesn’t it apply to his own, wholly owned, totally dysfunctional, legally deficient, contemptuous, unprofessional “court system” that builds astounding, self-created backlogs while causing pain, suffering, and sometimes sending innocents to death?☠️

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Additionally, in Kansas this week, women have shown the power of their just demand to be treated as humans, with rights, rather than dehumanized pawns just there to re-populate the world for the men in charge. So, why not unleash the same passion and rightful fury on Garland and his ongoing, illegal, misogynistic treatment of women (primarily women of color) at EOIR!

Woman Tortured
“She struggled madly in the torturing Ray” — AG Garland has failed miserably to engage with the plight of women, mostly those of color, being denied fundamental rights and abused daily by his lawless, anti-immigrant, anti-asylum, misogynistic “holdover” EOIR! Why are women putting up with his bad attitude and dilatory approach to justice? What happened to Lisa Monaco, Vanita Gupta, and Kristen Clarke? Are they “locked in a dark closet” somewhere in Garland’s DOJ?
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

🇺🇸 Due Process Forever!

PWS

08-04-22

⚖️CHAIR LOFGREN’S “REAL COURTS RULE OF LAW ACT OF 2022,” H.R. 6577, TO GET MARKUP THIS WEEK!

FROM AILA:

From: George Tzamaras <GTzamaras@aila.org>

Sent: Tuesday, April 5, 2022 2:36 PM

To: AILA Board of Governors Mailing List <bog@lists.aila.org>

Subject: [bog] PLEASE SHARE: New AILA Think Immigration video blog post with Jeremy McKinney and Greg Chen regarding immigration court reform (includes sample tweets and posts).

 

Good afternoon everyone,

 

We are really excited that this week the House Judiciary Committee is scheduled to mark up the Real Courts, Rule of Law Act of 2022 – introduced by Rep. Lofgren to establish an independent immigration court system which we’ve been working for steadily for years now. The markup hearing will cover a lot of different bills so we may see the bill come up today, or more likely tomorrow. To watch the hearing, keep an eye on the hearing livestream page: https://judiciary.house.gov/calendar/eventslisting.aspx?EventTypeID=216

 

The AILA Comms Team produced a video in which Jeremy McKinney and Greg Chen talk through the immigration court’s problems and the need for a real solution in order to ensure judicial independence and due process. We have embedded the video as a blog post and would love to have you amplify it to your networks on social media.

 

To make that easier, we’ve created some sample social below for the video blog post. Also, don’t forget to TAKE ACTION yourself by contacting your congressional delegation and urging support for the bill: https://www.aila.org/advo-media/tools/advocacy-action-center#/114

 

Sample tweets:

  • I’ll be watching to see the House Judiciary Committee mark up the Real Courts, Rule of Law Act which would create an independent #immigration court this week. WATCH this video with @MckJeremy and @GregChenAILA for a helpful intro: http://ow.ly/oqap50IB7Cp @AILANational
  • Simply put, the history of politicization and turmoil make it clear that we need an independent #immigration court – WATCH @AILANational’s @MckJeremy and @GregChenAILA explain: http://ow.ly/oqap50IB7Cp
  • Sample Facebook/LinkedIn posts:
  • I’ll be watching to see how the Real Courts, Rule of Law Act introduced by Rep. Lofgren fares as the House Judiciary Committee discusses how to create an independent #immigration court but in the meantime, this video with AILA President-Elect Jeremy McKinney and Greg Chen serves as a helpful intro: http://ow.ly/oqap50IB7Cp
  • Simply put, the history of politicization and turmoil make it clear that we need an independent #immigration court – WATCH AILA’s President-Elect Jeremy McKinney join Greg Chen to explain:

http://ow.ly/oqap50IB7Cp

 

Thank you,

G

 

George Paul Tzamaras

Senior Director, Communications and Outreach

American Immigration Lawyers Association

Suite 800

1331 G Street, NW,

Washington, DC  20005-3142

Office:  202-507-7649

Cell:      240-476-4299

E-mail:  gtzamaras@aila.org

 

pastedGraphic.png

American Immigration Lawyers Association

Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org

1331 G Street NW, Suite 300, Washington, DC 20005

 

pastedGraphic_1.png  pastedGraphic_2.png  pastedGraphic_3.png  pastedGraphic_4.png

 

 

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Nice video!

Progress!

Stay tuned!

🇺🇸Due Process Forever!

PWS

04-05-22

THE NEED FOR AN INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT: A New “Video Short” From AILA Productions!

THE NEED FOR AN INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT: A New “Video Short” From AILA Productions!

 

Starring (in order of appearance):

Hon. A. Ashlley Tabaddor
Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)
Me
Me
Jeremy McKinney
Jeremy McKinney, Esquire
Greensboro, NC
AILA 2nd Vice President
Professor Shoba Wadhia
Professor Shoba Wadhia
Penn State Law

Watch it here:

https://youtu.be/8fkt-g4XG_A

 

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

Never has the need been greater!

 

Due Process Forever; Captive Courts Never!

 

PWS

02-01-20

HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

Tanvi Misra
Tanvi Misra
Immigration Reporter
Roll Call

 

https://www.rollcall.com/news/congress/doj-changed-hiring-promote-restrictive-immigration-judges?fbclid=IwAR2VfI3AKcttNoXlc_MX0sa-6X94bsOWF4btxb7tWDBz7Es4bvqB63oZA-0

 

Tanvi Misra reports for Roll Call:

 

DOJ changed hiring to promote restrictive immigration judges

New practice permanently placed judges on powerful appellate board, documents show

Posted Oct 29, 2019 2:51 PM

Tanvi Misra

@Tanvim

More non-Spanish speaking migrants are crossing the borderDHS advances plan to get DNA samples from immigrant detaineesWhite House plans to cut refugee admittance to all-time low

 

Error! Filename not specified.

James McHenry, director of the Justice Department’s Executive Office for Immigration Review, testifies before a Senate panel in 2018. Memos from McHenry detail changes in hiring practices for six restrictive judges placed permanently on the Board of Immigration Appeals. (Chip Somodevilla/Getty Images)

The Department of Justice has quietly changed hiring procedures to permanently place immigration judges repeatedly accused of bias to a powerful appellate board, adding to growing worries about the politicization of the immigration court system.

Documents obtained through Freedom of Information Act requests describe how an already opaque hiring procedure was tweaked for the six newest hires to the 21-member Board of Immigration Appeals. All six board members, added in August, were immigration judges with some of the highest asylum denial rates. Some also had the highest number of decisions in 2017 that the same appellate body sent back to them for reconsideration. All six members were immediately appointed to the board without a yearslong probationary period.

[More non-Spanish speaking migrants are crossing the border]

“They’re high-level deniers who’ve done some pretty outrageous things [in the courtroom] that would make you believe they’re anti-immigrant,” said Jeffrey Chase, a former immigration judge and past senior legal adviser at the board. “It’s a terrifying prospect … They have power over thousands of lives.”

Among the hiring documents are four recommendation memos to the Attorney General’s office from James McHenry, director of the Executive Office for Immigration Review, which oversees the nation’s immigration court system.

DOCUMENT

PAGES

TEXT

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Page 1 of  4

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The memos, dated July 18, recommend immigration judges William A. Cassidy, V. Stuart Couch, Earle B. Wilson, and Keith E. Hunsucker to positions on the appellate board. McHenry’s memos note new hiring procedures had been established on March 8, to vet “multiple candidates” expressing interest in the open board positions.

A footnote in the memos states that applicants who are immigration judges would be hired through a special procedure: Instead of going through the typical two-year probationary period, they would be appointed to the board on a permanent basis, immediately. This was because a position on the appellate board “requires the same or similar skills” as that of an immigration judge, according to the memo.

Appellate board members, traditionally hired from a variety of professional backgrounds, are tasked with reviewing judicial decisions appealed by the government or plaintiff. Their decisions, made as part of a three-member panel, can set binding precedents that adjudicators and immigration judges rely on for future cases related to asylum, stays of deportation, protections for unaccompanied minors and other areas.

McHenry, appointed in 2018 by then-Attorney General Jeff Sessions, concludes his recommendation memos by noting that the judge’s “current federal service was vetted and no negative information that would preclude his appointment” was reported. He does not mention any past or pending grievances, although public complaints have been filed against at least three of the judges.

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These documents, obtained through FOIA via Muckrock, a nonprofit, collaborative that pushes for government transparency, and shared with CQ Roll Call, reflect “the secrecy with which these rules are changing,” said Matthew Hoppock, a Kansas City-based immigration attorney. “It’s very hard to remove or discipline a judge that’s permanent than when it’s probationary, so this has long term implications.”

‘If I had known, I wouldn’t have left’: Migrant laments ‘Remain in Mexico’ policy

Volume 90%

 

The Department of Justice declined to answer a series of questions asked by CQ Roll Call regarding the new hiring practices, why exemptions were made in the case of these immigration judges and whether complaints against any of the judges were considered.

“Board members, like immigration judges, are selected through an open, competitive, and merit-based process involving an initial review by the Office of Personnel Management and subsequent, multiple levels of review by the Department of Justice,” a DOJ official wrote via email. “This process includes review by several career officials. The elevation of trial judges to appellate bodies is common in almost every judicial system, and EOIR is no different.”

Homestead: On the front lines of the migrant children debate

Volume 90%

 

Opaque hiring process

When the department posted the six board vacancies in March, the openings reflected the first time that board members would be allowed to serve from immigration courts throughout the country. Previously, the entire appellate board worked out of its suburban Virginia headquarters.

In addition, the job posts suggested that new hires would be acting in a dual capacity: They may be asked to adjudicate cases at the trial court level and then also review the court decisions appealed to the board. Previously, board members stuck to reviewing appeals cases, a process that could take more than a year.

Ultimately, all six hires were immigration judges, although past board candidates have come from government service, private sector, academia and nonprofits.

“This was stunning,” MaryBeth Keller, chief immigration judge until she stepped down this summer, said in a recent interview with The Asylumist, a blog about asylum issues. “I can’t imagine that the pool of applicants was such that only [immigration judges] would be hired, including two from the same city.”

Keller said immigration judges are “generally eminently qualified to be board members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that.”

Paul Wickham Schmidt, a retired immigration judge who headed the board under President Bill Clinton, said the panel always had arbitrary hiring procedures that changed with each administration and suffered from “quality control” issues. But the Trump administration has “pushed the envelope the furthest,” he said.

“This administration has weaponized the process,” he told CQ Roll Call. “They have taken a system that has some notable weaknesses in it and exploited those weaknesses for their own ends.”

The reputation and track record of the newest immigration judges has also raised eyebrows.

According to an analysis of EOIR data by the Transactional Records Access Clearinghouse at Syracuse University, each of these newest six judges had an asylum denial rate over 80 percent, with Couch, Cassidy, and Wilson at 92, 96, and 98 percent, respectively. Nationally, the denial rate for asylum cases is around 57 percent. Previous to their work as immigration judges, all six had worked on behalf of government entities, including the Department of Homeland Security, Department of Justice and the military.

“It mirrors a lot of the concerns at the trial level,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association (AILA). She said several new hires at the trial level have been Immigration and Customs Enforcement attorneys.

“Every day across the country, people’s lives hang in the balance waiting for immigration judges to decide their fate,” she said. “Asylum grant rates for immigration court cases vary widely depending on the judge, suggesting that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.”

Immigration experts note that denial rates depend on a variety of factors, including the number and types of cases that appear on a judge’s docket. Perhaps a better measure of an immigration judge’s decision-making may be the rate that rulings get returned by the appeals board.

For 2017, the last full year for which data is available, Couch and Wilson had the third and fourth highest number of board-remanded cases — at 50 and 47 respectively, according to federal documents obtained by Bryan Johnson, a New York-based immigration lawyer. The total number of cases on their dockets that year were 176 and 416, respectively.

Some of the behavior by the newer judges also have earned them a reputation. In 2018, AILA obtained 11 complaints against Cassidy that alleged prejudice against immigrant respondents. In a public letter the Southern Poverty Law Center sent last year to McHenry, the group complained that Cassidy bullied migrants in his court. He also asked questions that “exceeded his judicial authority,” Center lawyers wrote.

Another letter, sent in 2017 by SPLC lawyers and an Emory University law professor whose students observed Cassidy’s court proceedings, noted the judge “analogized an immigrant to ‘a person coming to your home in a Halloween mask, waving a knife dripping with blood’ and asked the attorney if he would let that person in.”

SPLC also has documented issues with Wilson, noting how he “routinely leaned back in his chair, placed his head in his hands and closed his eyes” during one hearing. “He held this position for more than 20 minutes as a woman seeking asylum described the murders of her parents and siblings.”

Couch’s behavior and his cases have made news. According to Mother Jones, he once lost his temper with a 2-year-old Guatemalan child, threatening to unleash a dog on the boy if he didn’t stop making noise. But he is perhaps better known as the judge who denied asylum to “Ms. A.B.,” a Salvadoran domestic violence survivor, even after the appellate board asked him to reconsider. Sessions, the attorney general at the time, ultimately intervened and made the final precedent-setting ruling in the case.

Couch has a pattern of denying asylum to women who have fled domestic violence, “despite clear instructions to the contrary” from the appellate board, according to Johnson, the immigration lawyer who said Couch “has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum.”

Jeremy McKinney, a Charlotte-based immigration lawyer and second vice president at AILA, went to law school with Couch and called him “complex.” While he was reluctant to characterize the judge as “anti-immigrant,” he acknowledged “concerning” stories about the Couch’s court demeanor.

“In our conversations, he’s held the view that asylum is not the right vehicle for some individuals to immigrate to the U.S. — it’s one I disagree with,” McKinney said. “But I feel quite certain that that’s exactly why he was hired.”

Politicizing court system

Increasingly, political appointees are “micromanaging” the dockets of immigration judges, said Ashley Tabaddor, head of the union National Association of Immigration Judges. Appointees also are making moves that jeopardize their judicial independence, she said. Among them: requiring judges to meet a quota of 700 completed cases per year; referring cases even if they are still in the midst of adjudication to political leadership, including the Attorney General, for the final decision; and seeking to decertify the immigration judges’ union.

These are “symptoms of a bigger problem,” said Tabaddor. “If you have a court that’s situated in the law enforcement agency … that is the fundamental flaw that needs to be corrected.”

In March, the American Bar Association echoed calls by congressional Democrats to investigate DOJ hiring practices in a report that warned the department’s “current approach will elevate speed over substance, exacerbate the lack of diversity on the bench, and eliminate safeguards that could lead to a resurgence of politicized hiring.”

“Moreover, until the allegations of politically motivated hiring can be resolved, doubt will remain about the perceived and perhaps actual fairness of immigration proceedings,” the organization wrote. “The most direct route to resolving these reasonable and important concerns would be for DOJ to publicize its hiring criteria, and for the inspector general to conduct an investigation into recent hiring practices.”

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One of the most disgusting developments, that the media sometimes misses, is that having skewed and biased the system specifically against Central American asylum seekers, particularly women and children, the Administration uses their “cooked” and “bogus” statistics to make a totally disingenuous case that the high denial rates show the system is being abused by asylum seekers and their lawyers. That, along with the “fiction of the asylum no show” been one of “Big Mac’s” most egregious and oft repeated lies! There certainly is systemic abuse taking place here — but it is by the Trump Administration, not asylum seekers and their courageous lawyers.

 

This system is a national disgrace operating under the auspices of a feckless Congress and complicit Article III courts whose life-tenured judges are failing in their collective duty to put an end to this blatantly unconstitutional system: one that  also violates statutory provisions intended to give migrants access to counsel, an opportunity to fully present and document their cases to an unbiased decision maker, and a fair opportunity to seek asylum regardless of status or manner of entry. Basically, judges at all levels who are complicit in this mockery of justice are “robed killers.”

 

Just a few years ago, asylum seekers were winning the majority of individual rulings on asylum in Immigration Court. Others were getting lesser forms of protection, so that more than 60 percent of asylum applicants who got final decisions in Immigration Court were receiving much-needed, life-saving protection. That’s exactly what one would expect given the Supreme Court’s pronouncements in 1987 about the generous standards applicable to asylum seekers in INS v. Cardoza-Fonseca.

 

Today, conditions have not improved materially in most “refugee sending countries.” Indeed, this Administration’s bogus designation of the Northern Triangle “failed states” as “Safe Third Countries” is absurd and shows their outright contempt for the system and their steadfast belief that the Federal Judiciary will “tank” on their responsibility to hold this Executive accountable.

 

As a result of this reprehensible conduct, the favorable trend in asylum adjudication has been sharply reversed. Now, approximately two-thirds of asylum cases are being denied, many based on specious “adverse credibility” findings, illegal “nexus” findings that intentionally violate the doctrine of “mixed motives”enshrined in the statute, absurdly unethical and illegal rewriting of asylum precedents by Sessions and Barr, intentional denial of the statutory right to counsel, and overt coercion through misuse of DHS detention authority to improperly “punish” and “deter” legal asylum seekers.

 

Right under the noses of complicit Article III Judges and Congress, the Trump Administration has “weaponized” the Immigration “Courts” and made them an intentionally hostile environment for asylum seekers and their, often pro bono or low bono, lawyers. How is this acceptable in 21st Century America?

 

That’s why it’s important for members of the “New Due Process Army” to remember my “5 Cs Formula” – Constantly Confront Complicit Courts 4 Change. Make these folks with “no skin the game” feel the pain and be morally accountable for those human lives they are destroying by inaction in the face of Executive illegality and tyranny from their “ivory tower perches.”  

We’re in a war for the survival of our democracy and the future of humanity.  There is only one “right side” in this battle. History will remember who stood tall and who went small when individual rights, particularly the rights to Due Process and fair treatment for the most vulnerable among us, were under attack by the lawless forces of White Nationalism and their enablers!

 

PWS

 

10-31-19

AILA CONDEMNS BARR’S LATEST COWARDLY EXTRALEGAL ATTACK ON VULNERABLE ASYLUM SEEKERS — “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum.”

Jeremy McKinney
Jeremy McKinney, Esquire
Greensboro, NC
AILA 2nd Vice President

 

AILA: AG’s Decision Ignores Precedent and Is the Latest Attempt to Restrict Asylum

AILA Doc. No. 19072905 | Dated July 29, 2019

CONTACTS:
George Tzamaras
202-507-7649
gtzamaras@aila.org
Belle Woods
202-507-7675
bwoods@aila.org

 

WASHINGTON, DC — On July 29, 2019, Attorney General (AG) William Barr issued a precedent decision in Matter of L-E-A- and announced that in his view, families cannot be considered a particular social group (and thus grounds for asylum) unless they are recognized by society as such.

AILA Second Vice President Jeremy McKinney stated, “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum. Courts, like the 4th Circuit Court of Appeals in Richmond, Virginia, have voluminous case law directly contradicting the Attorney General’s decision today.

 

“The impact of AG Barr’s decision, along with the other decisions issued by his immediate predecessors on asylum and the nation’s immigration courts, cannot be overstated. Last summer, the AG issued Matter of A-B- attempting to end the category of persecution – essentially restricting domestic violence victims and other victims of crimes perpetrated by private, non-government actors from their ability to qualify for asylum. Today, the AG’s office further attempts to restrict asylum by targeting a new category of asylum seekers: families. This will cause irreparable harm. We know that these are some of the most vulnerable of asylum seekers as parents flee with their children in order to protect them from persecution. This decision unnecessarily makes asylum harder. Clearly, our nation needs an independent immigration court system separate from the Department of Justice.”

 

Cite as AILA Doc. No. 19072905.

Laura A. Lynch, Esq.

Senior Policy Counsel

Direct: 202.507.7627 I Email: llynch@aila.org

 

American Immigration Lawyers Association

Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org

1331 G Street NW, Suite 300, Washington, DC 20005

 

 

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Cowardice is the very definition of when those in power whose job and solemn duty is to protect and vindicate the rights of others, particularly the most vulnerable among us like refugees, instead grossly abuse their power by picking on them, bullying them, and abusing them. Whether or not Barr and the other White Nationalist restrictionists in the Trump Administration are committing actual crimes under U.S. law, they are certainly guilty of “crimes against humanity” in any normal sense of the word.

 

It is for legal scholars, historians, and moral philosophers to insure that Trump, Pence, Barr, Sessions, “Cooch Cooch,” “Big Mac With Lies,” Miller, Nielsen, Kelly, Homan, Morgan, and others who have enthusiastically supported and enabled this debacle do not escape the negative judgements of history!

PWS

07-30-19

 

LORELEI LAIRD @ ABA JOURNAL: Judges Make The Case For An Independent Article I U.S. Immigration Court, Featuring Interviews With “Our Gang” Members Judge Carol King & Me!

http://www.abajournal.com/magazine/article/immigration-judges-executive-politicizing-courts

Lorelei writes in the ABA Journal:

There was no reason to think that the relatively routine immigration case of Reynaldo Castro-Tum would make headlines.

Castro-Tum, a Guatemalan national who entered the United States at 17, was one of thousands who were part of 2014’s “surge” of unaccompanied minors. Like most of those minors, he was eventually released to the custody of a relative—in this case, a brother-in-law who lived outside Pittsburgh. The government repeatedly sent notices to appear at immigration court hearings to that address, but Castro-Tum never showed up.

Normally, that’s the end of the story, since failure to appear in immigration court generally results in a deportation. But Judge Steven Morley of the Philadelphia immigration court suspected the address on file for Castro-Tum was not correct, in part because that’s a common problem with addresses provided for unaccompanied minors. So Morley administratively closed the case, essentially pausing it to look into the address problem. The government appealed it, along with about 200 similar cases, and the Board of Immigration Appeals, the court of next resort in immigration cases, instructed Morley to deport Castro-Tum.

But before he could do that, then-Attorney General Jeff Sessions assigned the case to himself, a power the attorney general has as the head of the federal agency that controls the immigration courts. His opinion in Matter of Castro-Tum, issued in May 2018, says immigration judges have no legal authority to administratively close cases. That alone would have been a big deal in the immigration law world because it took away a well-established tool for managing the already overwhelmed immigration court dockets.

Jeff Sessions

Photo of Former Attorney General Jeff Sessions by Shutterstock.

But what came next drew widespread attention among immigration lawyers as well as the national media, catapulting the otherwise unknown case of a single teenage immigrant into the spotlight. On remand, Morley continued the case to resolve the address problem—and immigration court leadership promptly took it away from him, reassigning it to an administrative judge. Then they reassigned 86 more of his cases. According to a grievance filed by the National Association of Immigration Judges, the union that represents Morley, a supervisor told him that he had been expected to order Castro-Tum deported if he didn’t appear.

NAIJ President A. Ashley Tabaddor says that’s not actually in Sessions’ opinion—and if it were, it would violate federal regulations on immigration judges’ independence. (Morley, like most sitting immigration judges, could not comment on the case per Justice Department policy. Tabaddor, who is also a sitting judge, stresses that she is speaking only in her role as union president.)

“We think that is a clear, clear violation of a judge’s decisional independence,” says Tabaddor, who presides in Los Angeles. “When you tell a judge how the process … should be handled, by definition, that is going to have an impact, and a significant impact, on the outcome.”

The Executive Office for Immigration Review, the DOJ agency that controls the immigration courts, declined to comment, citing pending litigation. Tabaddor said in January that she was unaware of litigation related to the matter.

Before Sessions’ opinion, the ABA had urged in an amicus brief to the DOJ that the attorney general continue to allow administrative closure in immigration cases, citing it as a “practical necessity” for judges to deal with the courts’ huge backlog.

Immigration courts have always been susceptible to politics; presidents have, for example, rearranged dockets to suit their political needs. But the NAIJ and others are concerned that the Trump administration has moved from reprioritizing cases to deliberately trying to affect case outcomes. Changes that have caused concern include unilateral changes to case law, like the one Sessions made in Castro-Tum; pressure on judges to rule faster; and even allegations that the DOJ is considering political affiliation in hiring new immigration judges.

“It’s all part of what our association has referred to as ‘the deportation machine,’ ” says Jeremy McKinney, treasurer of the American Immigration Lawyers Association. “In other words, transforming a court that is supposed to be an independent and neutral trier of law and fact into an arm of law enforcement.”

A TROUBLED HOME

For critics, a major problem with the immigration courts is where they’re housed: within the Department of Justice, an executive-branch department headed by a politically appointed leader. That’s unlike the Article III federal courts or most of the federal administrative law courts.

Immigration law observers have long worried that this exposes the courts to political interference—and recent history supports that. In 2008, the Justice Department’s Office of the Inspector General found that political appointees had hired only politically connected Republicans as immigration judges between 2004 and 2006, despite knowing judges were part of the civil service system. Over the past 30 years, several attorneys general have referred themselves cases in order to overturn the decisions of predecessors from a different party. Presidents of both parties have reprioritized dockets for political reasons.

Most of that is perfectly legal and within the political leadership’s powers—and to some observers, that’s a problem. Take the fact that attorneys general may certify Board of Immigration Appeals cases to themselves. There’s no requirement that they follow precedent or consult anyone else. This permits an attorney general to change case law unilaterally.

“Just allowing that kind of interference compromises the integrity of the court,” Tabaddor says. “Because that’s not how a court is supposed to run. That’s not how law is supposed to be developed.”

Asked for comment on the matter, Justice Department speechwriter Steven Stafford noted that the attorney general’s legal authority to refer himself cases, and authority to control the immigration courts and their judges, is clear under the Immigration and Nationality Act.

“Further, the acting attorney general’s exercise of this authority has been entirely appropriate in each particular case,” Stafford said in an emailed statement. “Those who oppose the use of this authority have a problem not with the acting attorney general, but with the INA.”

If this power of the attorney general is obscure, that might be because most—from both parties—have used it sparingly. Using DOJ archives of agency decisions, the ABA Journal determined that over three eight-year presidencies, former President Barack Obama’s two attorneys general referred themselves a total of four cases; George W. Bush’s three AGs referred themselves 10 cases; and Bill Clinton’s one AG referred herself one case. The ABA Journal found no record of any self-referrals during new Attorney General William Barr’s first time in the job, from 1991 to 1993.

By contrast, Sessions referred himself seven cases during 21 months in office, though he was able to publish decisions on only five before President Donald Trump asked him to resign.

Any hope that former Acting Attorney General Matthew Whitaker would take a lighter touch were dashed in December, when Whitaker certified two cases to himself: Matter of Castillo-Perez, concerning intoxicated driving and the good moral character standard in immigration law, and Matter of LEA, on whether a family connection can be the basis of an asylum claim. The cases were waiting for Barr after he was sworn in.

And the decisions Sessions handed down are not small tweaks. Take Matter of AB, in which Sessions decided that asylum should only rarely be available to people fleeing serious crimes not sponsored by a government. (“AB” are the initials of a woman who said she suffered prolonged domestic violence in El Salvador.) Essentially, Sessions ruled that when the persecution doesn’t come from the government itself, asylum claimants must work harder to show that the home government couldn’t or wouldn’t protect them.

“In practice, [nongovernmental violence] claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address,” Sessions wrote. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

infographic

Infographic by Sara Wadford

In making that ruling, Sessions swept away precedents set by the Board of Immigration Appeals and the federal appeals courts on what constitutes a “particular social group” under asylum law.

“The attorney general did not rewrite the underlying test for who qualifies for asylum and who does not,” says McKinney, who also runs McKinney Immigration Law in Greensboro, North Carolina. “He just announced that he would have applied the test differently, and his result would have been different. It’s a very, very strange way to issue sweeping precedent decisions.”

Jeremy McKinney

Photo of Jeremy McKinney by Shelli Craig Photography

The ruling also removed the basis for asylum claims from thousands of Central Americans who arrived in the United States in recent years to flee uncontrolled domestic abuse or gang violence in their home countries. Retired immigration Judge Paul Wickham Schmidt does not believe that’s a coincidence.

“The grounds that some people have been succeeding on are domestic violence and family-based claims,” says Schmidt, who belongs to the ABA Judicial Division’s National Conference of the Administrative Law Judiciary.” So it’s basically in my view a race-based attack on Central American asylum seekers.”

Because of this, Matter of AB attracted substantial attention. Sessions invited amicus briefs, and the ABA was one of many organizations that filed one, urging the attorney general to let the case law stand. That brief argues that federal appeals courts and the board of appeals have repeatedly found non-state-sponsored crimes—organized crime, “honor killings,” female genital mutilation—adequate for granting asylum. It also pointed out that the attorney general may not unilaterally overturn decisions of the federal appeals courts; the American Civil Liberties Union later cited this theory when it sued the federal government over AB. It won an injunction in that case in December.

It’s still possible to grant asylum on gang or domestic violence grounds, says retired immigration Judge Carol King, also part of the National Conference of the Administrative Law Judiciary, but everyone doesn’t see it that way.

“The danger is that the agency has been now encouraging judges not even to hold hearings if the cases are based on domestic violence,” says King, now a Berkeley, California-based consultant to immigration lawyers.

GUMMING UP THE WORKS

And that’s just asylum. For the immigration court system as a whole—and especially for working immigration judges—bigger problems have emerged from three decisions from Sessions that constrain judges’ ability to end or pause cases. That could worsen the already substantial backlog of cases in immigration court, which totaled more than 829,000 pending cases as of February, according to Syracuse University’s Transactional Records Access Clearinghouse.

Chief among these is Castro-Tum, the administrative closure case. Administrative closure ends a case without a decision, which permits judges to take cases off their dockets if they’re not ready to go forward. This was Morley’s intention in Castro-Tum, where the judge was concerned that the young man’s address was unreliable. Indeed, Tabaddor says the notice to appear was returned to the court after Castro-Tum was ordered deported; immigrant advocates suspect he may have returned to Guatemala.

There are multiple reasons why a pause might be desirable, McKinney explains. Many immigration cases depend on outside agencies’ actions; the State Department issues visas, and U.S. Citizenship and Immigration Services confers green cards and citizenship. Some benefits are also available through state courts, and cases may hinge on a decision from a police agency or an expert of some kind.

For example, McKinney cites special immigrant juvenile status. That’s an immigration status granted to minors who were abandoned, abused or neglected by one or both parents, and recipients must get a court order saying so.

“You go through state court, and then you submit an application to USCIS,” McKinney says. “So what we would see generally is these cases would be either administratively closed or given extended continuances, and then the person would pursue the status. Those kids are now being ordered deported.”

Continuances could have helped, but three months after Castro-Tum, Sessions handed down another decision, Matter of LABR, that requires judges to write a full decision every time they grant a continuance.

“I probably got five to 40 requests for continuances daily when I was on the bench,” King says. “It discourages granting continuances because they’re not requiring the same sort of diligence if a judge denies the continuance.”

Carol King

Photo of Carol King by Allan Brill

That’s why King believes LABR weighs the decision-making in favor of deportation. It’s also likely to drastically limit judges’ ability to end or postpone cases, along with Castro-Tum and a third decision from Sessions—Matter of SOG and FDB, which limits judges’ ability to terminate or dismiss deportation cases. In addition to making it harder for judges to manage their workloads, King says it’s bad for the system as a whole.

“It means that every case has to come into court, and if it’s not ready to go for some reason, it has to be reset in court,” she says. “It encourages double-booking of cases … which means that parties are not encouraged to be prepared.”

For clients and practitioners, McKinney says the end result is likely to be a flood of appeals.

“We had a 10-year-old ordered deported [while waiting for a USCIS decision],” he says. “Do you think we just said, ‘OK, judge,’ with the 10-year-old and then just took our order of deportation? No, we appealed!” After the Board of Immigration Appeals, litigants can take their cases to the federal appeals court for their circuits, and McKinney believes many will. Thus, he predicts that much of the immigration court backlog will filter up to the appeals courts in a few years.

CARROT OR STICK?

The DOJ is well aware of the backlog and has hired judges aggressively to address it. Several of the actions Sessions took on immigration were announced as ways to address that backlog.

That includes another of his controversial decisions: imposing quotas on immigration judges. Starting with the 2019 fiscal year, judges who want to be rated “satisfactory” on their performance reviews must complete at least 700 cases per year. No more than 15 percent of those cases should be overturned on appeal. There are also completion requirements for specific types of cases. A software dashboard allows judges to check their progress daily.

Asked about this in December, Executive Office for Immigration Review spokeswoman Kathryn Mattingly pointed the ABA Journal to a public conversation that agency Director James McHenry had in May 2018 with Andrew Arthur, executive director of the restrictionist Center for Immigration Studies. McHenry told Arthur that EOIR plans to take circumstances into account when evaluating judges under the new standards—most likely in fall 2019. However, McHenry said EOIR believes that the numbers chosen are reasonable expectations for experienced and properly trained judges.

The NAIJ and some retired judges don’t agree, in part because two judges may handle very different kinds of dockets. Cases involving serious criminal convictions, for example, might be quicker than asylum cases involving unaccompanied minors.

McHenry also testified about the changes before Congress, where he said the performance measures were “neither novel nor unique to EOIR,” and in line with measures recommended by the ABA and used by other federal administrative law systems.

Tabaddor sees that differently.

“The numbers are used as what I would say a carrot in many courts; it’s used to evaluate whether [changes] are needed,” she says. “But no legitimate court uses quotas and deadlines as a stick to put a judge’s job on the line, which directly interferes with their ability to sit impartially on a case.”

The ABA Judicial Division’s 2005 Guidelines for the Evaluation of Judicial Performance do not mention case completions. They say judges should be evaluated on legal ability, integrity, communication, professionalism and administrative ability. They also say evaluations shouldn’t compromise judicial independence and “should be free from political, ideological and issue-oriented considerations.”

King doesn’t think that’s the case here.

“To have judges evaluated on how quickly they’re pushing cases through the system is a really, really dangerous thing to do,” she says. “Because you’re basically tying the judges’ job security to whether they’re pushing cases through, and it’s clear from this administration that their idea with pushing cases through the system is to deny as many as possible.”

Tabaddor sees this as another encroachment on immigration judges’ independence.

“It’s basically psychological warfare with judges, [creating] a constant reminder of their numbers through this dashboard and a constant pressure to reach these unreasonable goals,” she says.

McKinney says he has seen this play out in practice. In one case, he discovered that his client’s minor child had been sexually assaulted in their home country, which became important to the family’s asylum application. The minor had not spoken to a mental health counselor, so McKinney moved for a continuance to allow her to do that. The judge denied it, in part because the evidence for the assault was not from a mental health professional.

“So what we got was … only half-baked consideration, because obviously in the motion we are asking for the time to talk to the precise professional that the judge wanted the minor child to talk to,” he says. “That is the pressure these judges are under.”

JOB OFFERS RESCINDED

The Justice Department actions raised earlier in this story may be concerning to some people, but they’re perfectly legal. However, there are also allegations that the Justice Department is taking politics into account in hiring immigration judges, who are part of the civil service system. The allegations have not been proved—but if true, they might break the law.

Washington, D.C., labor law attorney Zachary Henige says he has been approached by several people who were offered jobs as immigration judges or members of the Board of Immigration Appeals but had those offers rescinded after the 2016 election for what they believe are political reasons. The ABA Journal spoke to Henige about Dorothea Lay, the only client who has authorized him to discuss her case.

Zachary Henige

Photo of Zachary Henige courtesy of Kalijarvi, Chuzi, Newman & Fitch.

Lay has spent 25 years in the federal government’s immigration services agencies, and she is currently at USCIS. She was offered a job at the appeals board in October 2016. This required a fresh background check (she already has clearance at her existing job), so she understood that she would have to wait to finalize the job.

In late February 2017, Lay did hear back—but only via a two-sentence letter. It said that during the time it had taken to complete the background check, the needs of the agency had evolved, so EOIR was withdrawing the offer. However, the letter was postmarked on the same day that EOIR announced it would expand the number of seats on the board from 17 to 21—requiring four new hires. That’s one reason Lay was not convinced the agency’s needs had changed.

Another was that two of Lay’s recommenders were political appointees of Democrats. Her application also showed that she had worked on issues the Trump administration strongly opposed, including domestic violence as a basis for asylum, the issue in AB. Thus, it would have been easy to guess her politics. Asked about the allegations, EOIR spokeswoman Mattingly did not address them specifically, instead redirecting her comments about others who were hired.

Lay is pursuing a complaint through the federal government’s Office of Special Counsel, an independent agency that investigates alleged violations of the merit system for federal employees. Henige says he has been approached by others who had job offers rescinded after the election, not all of whom retained him.

Members of Congress have also gotten involved. In April 2018, Democratic Reps. Elijah Cummings of Maryland, Don Beyer of Virginia and Lloyd Doggett and Joaquin Castro of Texas wrote a letter to the Justice Department, saying multiple people had approached their offices after having job offers suspended or withdrawn for suspected political reasons.

Six people were hired not long after the letter, according to a statement from Cummings and Doggett. The DOJ did not make its response public, but that response was apparently leaked to Fox News, which said the DOJ acknowledged that 14 people were no longer under consideration for jobs, and gave nonpolitical explanations for all of those decisions.

Henige notes that there’s precedent for improperly politicized hiring, including the 2008 inspector general report from the DOJ. After that became a scandal in 2007, then-Attorney General Alberto Gonzales implemented a hiring process intend-ed to insulate the immigration courts from political considerations, with final candidate recommendation duties shared by the EOIR director, a senior career employee and a senior political appointee.

In 2017, however, Sessions authorized substantial changes to that process, according to a memo uncovered by Human Rights First, a New York-based nonprofit that advocates for human rights and the rule of law, through the Freedom of Information Act. Those changes removed the EOIR director or his designee from the final recommendation stage and removed the chief immigration judge from an earlier stage. The effect is less direct oversight from the agency that will actually employ the judges, and a greater proportion of responsibility to the political appointee.

HIT THE ROAD, JUDGE

Immigration judges aren’t on the edge of revolt. Not every judge agrees with the NAIJ or the retired judges quoted for this article. Arthur, for example—a retired immigration judge—has praised both the use of self-certifications and some of the decisions Sessions made that way.

Perhaps more importantly, immigration judges have limited recourse. As career federal employees, they aren’t legally permitted to strike, Tabaddor says, and lawsuits are limited to cases of individual judges with specific grievances. She says labor union negotiations have been minimally helpful. The grievance filed after the cases were taken from Morley was denied by EOIR last fall on the grounds that EOIR’s actions were lawful, and the NAIJ has merely filed formal correspondences on other matters.

Ashley Tabaddor

Photo of Ashley Tabaddor by Melodi Miremadi

That’s why Tabaddor wants a more permanent solution: Take the immigration courts out of the Justice Department and put them into an independent agency.

“It’s been done with the bankruptcy courts, it’s been done with the Court of Federal Claims, it’s been done with Tax Court,” she says. “Having a court within the same agency that basically has a law enforcement mandate cannot be defended.”

Mattingly says EOIR believes this is unnecessary and would take substantial resources. But it’s a long-standing goal—not just for NAIJ, but for the ABA House of Delegates, which called for independent immigration courts in 2010’s Resolution 114F. More recently, former ABA President Hilarie Bass testified before the Senate Judiciary Committee’s Subcommittee on Border Security and Immigration in 2018 in favor of independent immigration courts, as did Tabaddor. Arthur testified against it, citing constitutional concerns. Immigration court independence has also long been on the wish lists of AILA and the Federal Bar Association.

The four organizations have been working on legislation to make that a reality, McKinney says, though the coalition differs on details of how best to structure the agency. But the goal is the same: insulating the immigration courts from politics by moving them into an independent agency.

McKinney, who is actively involved in the effort through AILA, notes that major agency reforms don’t happen overnight—but he’s bullish about the possibilities.

“We have seen some genuine interest, and now that the Democrats are taking control of the House, we will see if that can turn into actual legislation,” McKinney says. “My heart goes out to the literally thousands of people who are going to be victims of this flawed system until the day comes that we can get it fixed. But I believe that we can get it fixed.”

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Jeremy McKinney is right. Thousands of humans have been and will continue to be victimized by this screwed up system until it finally gets fixed. Immigration Judges have become “robed pawns” in what has become a cruel parody of justice. And, to be honest about it, far, far too many Article III Judges “punt” on their oaths of office by giving unwarranted “deference” to a system that merits none. Indeed, in a “court” controlled by prosecutors and driven by overtly political, restrictionist agendas, it would make much more sense and be fairer to presume that each removal order is biased in favor of DHS unless the DOJ can establish otherwise.

PWS

03-29-19

COURTING DISASTER: NEW AILA REPORT SHREDS DOJ’S “BUILT TO FAIL” IMMIGRATION COURT BACKLOG REDUCTION PROGRAM — “Malicious Incompetence” Turns Tragedy To Travesty! — McKinney, Lynch, Creighton, & Schmidt Do Press Conference Exposing Injustice, Waste, Abuse — Listen To Audio Here!

OUR TEAM:

Jeremy McKinney, Attorney, Greensboro, NC, AILA National Treasurer

Laura Lynch, Senior Policy Counsel, AILA,

Emily Creighton, Deputy Legal Director, American Immigration Council

Paul Wickham Schmidt, Retired U.S. Immigration Judge

Read the AILA Report (with original formatting) at the link below:

19021900

FOIA Reveals EOIR’s Failed Plan for Fixing the Immigration Court Backlog February 21, 2019
Contact: Laura Lynch (llynch@aila.org) 1
On December 19, 2018, AILA and the American Immigration Council obtained a partially redacted memorandum through the Freedom of Information Act (FOIA), entitled the Executive Office for Immigration Review’s (EOIR) Strategic Caseload Reduction Plan (hereinafter “EOIR’s plan”). EOIR’s plan, which was approved by the Deputy Attorney General for the Department of Justice (DOJ) on October 31, 2017,2 states that the overarching goal was “to significantly reduce the case backlog by 2020.” 3 In the following months, DOJ and EOIR implemented the plan by rolling out several policy initiatives, including multiple precedent-setting opinions issued by then-Attorney General (AG) Jeff Sessions.
Contrary to EOIR’s stated goals, the administration’s policies have contributed to an increase in the court backlog which exceeded 820,000 cases at the end of 2018.4 This constitutes a 25 percent increase in the backlog since the introduction of EOIR’s plan.5 For example, the October 2017 memorandum reveals that EOIR warned DOJ that the Department of Homeland Security’s (DHS) potential activation of almost 350,000 low priority cases or cases that were not ready to be adjudicated could balloon the backlog.6 Nonetheless, then-AG Sessions ignored these concerns and issued a decision that essentially stripped immigration judges (IJs) of their ability to administratively close cases and compelled IJs to reopen previously closed cases at Immigrations Customs Enforcement’s (ICE) request.7
The policies EOIR implemented as part of this backlog reduction plan have severely undermined the due process and integrity of the immigration court system. EOIR has placed enormous pressure on IJs by setting strict case quotas on and restricting their ability to manage their dockets more efficiently. This approach treats the complex process of judging like an assembly line and makes it more likely that judges will not give asylum seekers and others appearing before the courts enough time to gather evidence to support their claims. People appearing before the courts will also have less time to find legal counsel, which has been shown to be a critical, if not the single most important factor, in determining whether an asylum seeker is able to prove eligibility for legal protection.
The foundational purpose of any court system must be to ensure its decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. Efforts to improve efficiency are also important but cannot be implemented at the expense of these fundamental principles. EOIR’s plan has not only failed to reduce the backlog but has eroded the court’s ability to ensure due process. Furthermore, EOIR’s plan demonstrates the enormous power DOJ exerts over the immigration court system. Until Congress creates an immigration court that is separate and independent from DOJ, those appearing before the court will be confronted with a flawed system that is severely compromised in its ability to ensure fair and consistent adjudications.
I. Background on EOIR’s Inherently Flawed Structure
The U.S. immigration court system suffers from profound structural problems that have severely eroded both its capacity to deliver just and fair decisions in a timely manner and public confidence in the system
AILA Doc. No. 19021900. (Posted 2/21/19)

itself.8 Unlike other judicial bodies, the immigration courts lack independence from the Executive Branch. The immigration courts are administered by EOIR, which is housed within DOJ – the same agency that prosecutes immigration cases at the federal level. This inherent conflict of interest is made worse by the fact that IJs are not classified as judges but as government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the AG, the chief prosecutor in immigration cases. The current administration has taken advantage of the court’s structural flaws, introducing numerous policies — including EOIR’s plan — that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.
II. Policies Identified in EOIR’s Plan
Administrative Closure
Stated Policy Goal: To reduce the case backlog and maximize docket efficiency, EOIR’s plan called for the strengthening of EOIR and DHS interagency cooperation.9 EOIR’s plan advised DOJ that “any burst of case initiation by a DHS component could seriously compromise EOIR’s ability to address its caseload and greatly exacerbate the current state of the backlog.”10
Reality: Despite EOIR’s warning, then-AG Sessions issued a precedent decision in Matter of Castro Tum,11 which contributed to a rise in the case backlog. This decision severely restricts a judge’s ability to schedule and prioritize their cases, otherwise known as “administrative closure” and even compels IJs to reopen previously closed cases at ICE’s request.12
Administrative closure is a procedural tool that IJs and the BIA use to temporarily halt removal proceedings by transferring a case from active to inactive status on a court’s docket. This tool is particularly useful in situations where IJs cannot complete the case until action is taken by USCIS or another DHS component, state courts and other authorities. Prior to the issuance of Matter of Castro Tum, numerous organizations, including the judges themselves, warned DOJ that stripping IJs of the ability to utilize this docket management tool “will result in an enormous increase in our already massive backlog of cases.”13 In fact, an EOIR-commissioned report identified administrative closure as a helpful tool to control the caseload and recommended that EOIR work with DHS to implement a policy to administratively close cases awaiting adjudication in other agencies or courts.14
Nonetheless, the former AG issued Matter of Castro Tum15 sharply curtailing IJs’ ability to administratively close cases. The decision even called for cases that were previously administratively closed cases to be put back on the active immigration court dockets.16 In August 2018, ICE directed its attorneys to file motions to recalendar “all cases that were previously administratively closed…” with limited exceptions—potentially adding a total of 355,835 cases immediately onto the immigration court docket.17 Three months later, ICE had already moved to recalendar 8,000 cases that had previously been administratively closed, contributing to the bloated immigration court case backlog.18 In response, members of Congress sent a letter to DOJ and DHS outlining their concerns about ICE’s plans to recalendar potentially hundreds of thousands of administratively closed cases, further clogging the system and delaying and denying justice to the individuals within it.19
Quotas and Deadlines
Stated Policy Goal: To expedite adjudications, EOIR’s plan calls for the development of caseload
management goals and benchmarks.20
Reality: EOIR imposed unprecedented case completion quotas and deadlines on IJs, that pressure judges to complete cases rapidly at the expense of balanced, well-reasoned judgment.21
2
AILA Doc. No. 19021900. (Posted 2/21/19)

At the time EOIR’s plan was issued, EOIR’s collective bargaining agreement with the National Association of Immigration Judges (NAIJ) prohibited “the use of any type of performance metrics in evaluating an IJ’s performance.”22 Despite opposition from NAIJ,23 DOJ and EOIR imposed case completion quotas and time-based deadlines on IJs, tying their individual performance reviews to the number of cases they complete.24 Among other requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.25 Disturbingly, DOJ unveiled new software, resembling a “speedometer on a car” employed to track the completion of IJs’ cases.26
Sample Image of “IJ Performance Data Dashboard”
(Source: Vice News)27
AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the NAIJ as a “death knell for judicial independence.”28 The purported argument for these policies is that it will speed the process up for the judges. However, applying this kind of blunt instrument will compel judges to rush through decisions and may compromise a respondent’s right to due process and a fair hearing. Given that most respondents do not speak English as their primary language, a strict time frame for completion of cases interferes with a judge’s ability to assure that a person’s right to examine and present evidence is respected.29
These policies also impact asylum seekers, who may need more time to gather evidence that is hard to obtain from their countries of origin, as well as unrepresented individuals, who may need more time to obtain an attorney. The Association of Pro Bono Counsel explained that the imposition of case completion quotas and deadlines “will inevitably reduce our ability to provide pro bono representation to immigrants in need of counsel.”30 Unrepresented people often face hurdles in court that can cause case delays, and scholars have concluded that immigrants with attorneys fare better at every stage of the court process.31 Furthermore, these policies compel IJs to rush through decisions may result in errors which will lead to an increase in appeals and federal litigation, further slowing down the process.
Continuances
Stated Policy Goal: To “streamline current immigration proceedings”32 and “process cases more
efficiently,”33 EOIR’s plan called for changes in the use of continuances in immigration court.34
Reality: The restrictions DOJ and EOIR placed on the use of continuances make it far more difficult for immigrants to obtain counsel and interfere with judges’ ability to use their own discretion in each case.
EOIR and DOJ introduced policies that pressure judges to deny more continuances at the expense of due process. In July 2017, the Chief IJ issued a memorandum which pressures IJs to deny multiple continuances, including continuances to find an attorney or for an attorney to prepare for a case.35 Following this policy change, then-AG Sessions issued the precedential decision, Matter of L-A-B-R- et al., interfering with an IJ’s ability to grant continuance requests and introducing procedural hurdles that will also make it harder for people to request and IJs to grant continuances.36
3
AILA Doc. No. 19021900. (Posted 2/21/19)

These policy changes weaken due process protections and contradict the agency’s plan to “improve existing laws and policies.” Continuances represent a critical docketing management tool for IJs and are a necessary means to ensure that due process is afforded in removal proceedings. The number one reason respondents request continuances is to find counsel, who play a critical role in ensuring respondents receive a fair hearing.37 Continuances are particularly important to recent arrivals, vulnerable populations (such as children), and non-English speakers—all of whom have significant difficulties navigating an incredibly complex immigration system. Furthermore, individuals represented by counsel contribute to more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, explained, “It is our experience, when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”38
Video Teleconferencing (VTC)
Stated Policy Goal: To expand its adjudicatory capacity, EOIR called for pilot VTC “immigration
adjudication centers.”39
Reality: EOIR expanded the use of VTC for substantive hearings undermining the quality of communication and due process.
A 2017 report commissioned by EOIR concluded that court proceedings by VTC should be limited to “procedural matters” because appearances by VTC may lead to “due process issues.”40 Despite these concerns, EOIR expanded use of VTC for substantive hearings. A total of fifteen IJs currently sit in two immigration adjudication centers—four in Falls Church, Virginia, and eleven in Fort Worth, Texas.41 IJs are currently stationed at these “centers” where they adjudicate cases from around the country from a remote setting.42
For years, legal organizations such as AILA and the American Bar Association (ABA) have opposed use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.43 Technological glitches such as weak connections and bad audio can make it difficult to communicate effectively, and 29 percent of EOIR staff reported that VTC caused meaningful delay.44 Additionally, VTC technology does not provide for the ability to transmit nonverbal cues. Such issues can impact an IJs’ assessment of an individual’s credibility and demeanor, which are significant factors in determining appropriate relief.45 Moreover, use of VTC for immigration hearings also limits the ability for attorneys to consult confidentially with their clients. No matter how high-quality or advanced the technology is that is used during a remote hearing, such a substitute is not equivalent to an in-person hearing and presents significant due process concerns.
IJ Hiring
Stated Policy Goal: In order to increase the IJ corps and reduce the amount of time to hire new
IJs, the former AG introduced a new, streamlined IJ hiring process.46
Reality: Following DOJ’s implementation of the streamlined IJ hiring process, DOJ faced allegations of politicized and discriminatory hiring47 that call into question the fundamental fairness of immigration court decisions.
On its face, the agency “achieved” its goal to quickly hire more IJs, reducing the time it takes to onboard new IJs by 74 percent and increasing the number of IJs on the bench from 338 IJs at the end of FY2017 to 414 IJs by the end of 2018.48 What these statistics do not reveal is that the new plan amended hiring processes to provide political appointees with greater influence in the final selection of IJs.49 In addition to procedural changes, DOJ also made substantive changes to IJ hiring requirements, “over-emphasizing litigation experience to the exclusion of other relevant immigration law experience.”50 Both Senate and
4
AILA Doc. No. 19021900. (Posted 2/21/19)

House Democrats requested an investigation with the DOJ Inspector General (IG) to examine allegations that DOJ has targeted candidates and withdrawn or delayed offers for IJ and BIA positions based on their perceived political or ideological views.51 These allegations are particularly troublesome given the influx in the number of IJs resigning and reports that experienced IJs are “being squeezed out of the system for political reasons.”52
Telephonic Interpreters
Stated Policy Goal: EOIR requested additional funding to support additional IJs on staff and to
improve efficiency.53
Reality: EOIR failed to budget for needed in-person interpreters54 resulting in the use of telephonic interpreters for most hearings, which raises concerns about hearing delays and potential communication issues.55
In April of 2017, an EOIR-commissioned report revealed that 31 percent of court staff reported that telephonic interpreters caused a meaningful delay in their ability to proceed with their daily responsibilities.56 With more than 85 percent of respondents in immigration court relying on use of an interpreter, EOIR’s decision to replace in-person interpreters with telephonic interpreters will undoubtedly make court room procedures less efficient.57 In addition, similar to many of the technological concerns cited with use of VTC, communication issues related to use of remote interpreters can jeopardize an immigrant’s right to a fair day in court. For example, it is impossible for telephonic interpreters to catch non-verbal cues that may determine the meaning of the speech.
III. Conclusion
The immigration court system is charged with ensuring that individuals appearing before the court receives a fair hearing and full review of their case consistent with the rule of law and fundamental due process. Instead of employing policies that propel the court toward these goals, the administration’s plan relies on policies that compromise due process. IJs responsible for adjudicating removal cases are being pressured to render decisions at a break-neck pace. By some accounts “morale has never, ever been lower” among IJs and their staff.58 Moreover, since the introduction of EOIR’s plan, the number of cases pending in the immigration courts has increased 25 percent (from 655,932 on 9/31/17 to 821,726 on 12/31/18). This number does not even account for the 35-day partial government shutdown that cancelled approximately 60,000 hearings while DHS continued carrying out enforcement actions.59 Congress must conduct rigorous oversight into the administration’s policies that have eroded the court’s ability to ensure that decisions are rendered fairly, consistent with the law and the Constitution’s guarantee of due process. But oversight is not enough. In order protect and advance America’s core values of fairness and equality, the immigration court must be restructured outside of the control of DOJ, in the form of an independent Article I court.60
900,000 800,000 700,000 600,000 500,000 400,000 300,000 200,000 100,000
0
792,738 821,726
655,932 521,416
460,021 430,095
356,246
PENDING IMMIGRATION CASES
EOIR Pending Cases
5
Pending cases equals removal, deportation, exclusion, asylum-only, and AILA Doc. No. w1it9hh0o2ld1in9g0o0nl.y. (Po
Source: Department of Justice
sted 2/21/19)

1 For more information, contact AILA Senior Policy Counsel Laura Lynch at (202) 507-7627 or llynch@aila.org.
2 *An earlier version of this policy brief, dated February 19, 2019, incorrectly stated that the memo was signed on October 17, 2017. This typo has been corrected. FOIA Response, see pg. 9.
3 On December 5, 2017, EOIR publicly issued a backgrounder for the EOIR Strategic Caseload Reduction Plan. U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
4 U.S. Department of Justice, EOIR Adjudication Statistics, Pending Cases, (Dec. 31, 2018). The over 820,000 cases does not account for the 35-day partial government shutdown that cancelled approximately 60,000 immigration court hearings while at the same time, DHS continued carrying out enforcement actions, Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
5 U.S. Department of Justice, Adjudication Statistics, Pending Cases, Dec. 31, 2018.
6 FOIA Response, see pg. 6.
7 Jason Boyd, The Hill, “8,000 new ways the Trump administration is undermining immigration court independence,” Aug. 19, 2018.
8 ABA Commission on Immigration, Reforming the Immigration System, Proposals to Promote the Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (2010).
9 FOIA Response, see pg. 6. See also U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017.
10 FOIA Response, see pg. 6.
11 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
12 Id.
13 NAIJ Letter to then-Attorney General Sessions, Jan. 30, 2018.
14 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017, pg. 26, [hereinafter “Booz Allen Report”].
15 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).
16 Id.
17 ICE Provides Guidance to OPLA Attorneys on Administrative Closure Following Matter of Castro Tum, June 15, 2018.
18 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
19 Congressional Letter Requesting Information Regarding Initiative to Recalendar Administratively Closed Cases, Sept. 13, 2018.
20 FOIA Response, see pg. 5.
21 Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
22 FOIA Response, see pg. 5.
23 Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
24 FOIA Response, pg. 5. See also Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018. See also Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018.
25 See Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, March 30, 2018.
26 C-SPAN, Federal Immigration Court System, Sept. 21, 2018. (“[t]his past week or so, they [EOIR] unveiled what’s called the IJ dashboard…this mechanism on your computer every morning that looks like a speedometer on a car… The goal is for you to be green but of course you see all of these reds in front of you and there is a lot of anxiety attached to that.” NAIJ President, Judge A. Ashley Tabaddor).
27 Ani Ucar, Vice News, “Leaked Report Shows the Utter Dysfunction of Baltimore’s Immigration Court,” Oct. 3, 2018.
28 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges (October 2017).
29 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence.
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30 Association of Pro Bono Counsel (APBCo), Letter to Congress IJ Quotas, Oct. 26, 2017.
31 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court (2016).
32 U.S. Department of Justice Backgrounder, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017, pg. 2.
33 FOIA Response, pg. 8.
34 FOIA Response, pgs. 7-8.
35 U.S. Department of Justice, Operating Policies and Procedures Memorandum 17-01: Continuances, July 31, 2017. 36 Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018).
37 GAO Report, 17-438, Immigration Courts, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges, (June 2017).
38 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
39 FOIA Response, pg. 3.
40 Booz Allen Report, pg. 23.
41 U.S. Department of Justice, EOIR Immigration Court Listings, Feb. 2019.
42 Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
43 AILA Comments on ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Letter to ACUS, Feb. 17, 2012.
44 Booz Allen Report, pg. 23.
45 An EOIR commissioned report suggested limiting use of VTC to procedural matters only because it is difficult for judges to analyze eye contact, nonverbal forms of communication, and body language over VTC. Booz Allen Report, pg. 23.
46 FOIA Response, pg. 3.
47 Priscilla Alvarez, The Atlantic, Jeff Sessions is Quietly Transforming the Nation’s Immigration Courts, Oct. 17, 2018.
48 U.S. Department of Justice, EOIR Adjudication Statistic, IJ Hiring, (Jan. 2019).
49 U.S. Department of Justice, EOIR Announces Largest Ever Immigration Judge Investiture, Sept. 28, 2018; Document Obtained via FOIA by Human Rights First, Memorandum for the Attorney General, Immigration Judge Hiring Process, Apr. 4, 2017.
50 Strengthening and Reforming America’s Immigration Court System, Hearing Before Subcommittee on Border Security and Immigration, of the Senate Committee on the Judiciary, 115th Cong. 5 (2018) (A. Ashley Tabaddor, President, NAIJ), See also Questions for the Record.
51 Senate and House Democrats Request IG Investigation of Illegal Hiring Allegations at DOJ, May 8, 2018. Problematic hiring practices are not new for this agency. Over a decade ago, the IG and the Office of Professional Responsibility revealed that then-Attorney General Alberto Gonzales utilized political and ideological considerations in the hiring of IJ and BIA candidates. U.S Department of Justice IG Report, (2008).
52 Hamed Aleaziz, BuzzFeed News, Being an Immigration Judge Was Their Dream. Under Trump, It Became Untenable, Feb. 13, 2019.
53 FOIA Response, pg. 3.
54 NAIJ Letter to Senators, Government Shutdown, Jan. 9, 2019.
55 Id.
56 Booz Allen Report, pg. 25.
57 Laura Abel, Brennan Center For Justice, Language Access in Immigration Courts, (2010).
58 Hamed Aleaziz, Buzzfeed News, “The Trump Administration is Seeking to Restart Thousands of Closed Deportation Cases,” Aug. 15, 2018.
59 Associated Press, Partial shutdown delayed 60,000 immigration court hearings, Feb. 8, 2019.
60 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
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Here’s the link to the audio:

https://www.aila.org/infonet/aila-press-call-on-eoir-memo-obtained-via-foia

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Here’s “simul-coverage” from LA Times star reporter Molly O’Toole:

https://www.latimes.com/politics/la-na-pol-immigration-court-backlog-worsens-20190221-story.html

The Trump administration’s controversial plan to shrink the ballooning backlog of immigration cases by pushing judges to hear more cases has failed, according to the latest data, with the average wait for an immigration hearing now more than two years.

Since October 2017, when the Justice Department approved a plan aimed at reducing the backlog in immigration court, the pending caseload has grown by more than 26%, from 655,932 cases to just shy of 830,000, according to Syracuse University’s Transactional Access Records Clearinghouse, which tracks data from immigration courts.

Even that figure likely understates the backlog because it doesn’t include the impact of the 35-day government shutdown in December and January. Because the system’s roughly 400 immigration judges were furloughed during the shutdown, some 60,000 hearings were canceled. Thousands were rescheduled, adding to the already long wait times.

The administration “has not only failed to reduce the backlog, but has eroded the court’s ability to ensure due process” by pressuring judges to rule “at a breakneck pace” on whether an immigrant should be removed from the United States, the American Immigration Lawyers Assn. — a nonprofit organization of more than 15,000 immigration attorneys and law professors — said in a statement.

When the Justice Department’s Executive Office of Immigration Review, which administers immigration courts, released its plan, officials described it as a “comprehensive strategy for significantly reducing the caseload by 2020,” according to a partially redacted copy of an October 2017 memo obtained by the immigration lawyers group through a Freedom of Information Act request.

“The size of EOIR’s pending caseload will not reverse itself overnight,” the memo said, but by fully implementing the strategy, the office can “realistically expect not only a reversal of the growth of the caseload, but a significant reduction in it.”

Instead, the average wait has grown by a month from January alone, to 746 days — ironically extending the stay of thousands of migrants whom the administration might want to deport from the United States. The Justice Department declined to immediately comment on the growth of the backlog.

The number of pending immigration cases has risen dramatically in recent years, doubling from less than 300,000 in 2011 to 650,000 by December 2017, the end of Trump’s first year in office, according to the Justice Department.

The Trump administration has blamed the ballooning backlog on President Obama’s immigration policies, saying that “policy changes in recent years have slowed down the adjudication of existing cases and incentivized further illegal immigration that led to new cases.”

Administration officials have pointed to Obama’s effort to focus deportation on immigrants with serious criminal records and protecting certain immigrants known as Dreamers who were brought to the U.S. as children as examples of policies that have provided incentives for illegal border crossings.

The administration’s plan to reverse the backlog included a number of controversial steps.

One move restricted the ability of immigration judges to schedule and set priorities for their cases under a process known as “administrative closure.” That change compelled judges to reopen thousands of cases that had been deemed low priority and had been closed. Within three months of the memo, Immigration and Customs Enforcement had moved to reschedule 8,000 cases, prompting concern from lawmakers, according to the immigration lawyers association. Potentially, as many as 350,000 cases ultimately could be added back onto the court dockets.

The administration’s plan also tied immigration judges’ individual performance reviews to the number of cases they complete, calling for them to finish 700 removal cases in the next year.

In contrast to regular courts, immigration judges are not independent; they’re part of the Justice Department. Because of that, the attorney general is both the chief prosecutor in immigration cases and the ultimate boss of the judges, who are classified as government attorneys.

The National Assn. of Immigration Judges, as well as the immigration lawyers association and other groups, have long called for Congress to end what they see as a built-in conflict of interest and create an immigration court separate from the Justice Department.

“As long as we continue to allow the court to be used as a law enforcement tool,” said Ashley Tabaddor, president of the National Assn. of Immigration Judges, “you’re going to get these kinds of backlogs and inefficiencies.”

Any speedup that may have resulted from the imposition of quotas on the judges has been overtaken by the administration’s stepped-up enforcement efforts, which have pushed thousands of new cases into the system.

Stepped-up enforcement without a corresponding increase in judicial resources provides the main reason the backlog has gone up so dramatically, said Stephen Legomsky, Homeland Security’s chief counsel for immigration from 2011 to 2013.

“Immediately upon taking office, President Trump essentially advised Border Patrol agents and ICE officers that they were to begin removal proceedings against anyone they encountered that they suspected of being undocumented, without sufficiently increasing resources for immigration judges,” Legomsky said.

Under previous administrations, “the thinking was, ‘Let’s not spend our limited resources on people who are about to get legal status,’” he said, “Taking that discretion away dramatically increased the caseload.”

Some officials warned that could happen when the effort to curtail the backlog began.

“Any burst of case initiation,” by Homeland Security “could seriously compromise” the Justice Department’s “ability to address its caseload and greatly exacerbate the current state of the backlog,” the acting director of the immigration review office wrote in the October memo to Deputy Atty. Gen. Rod Rosenstein.

The quota effort could also prevent attorneys from providing representation to immigrants, according to the Assn. of Pro Bono Counsel, which represents lawyers who handle cases free of charge for the poor.

Whether immigrants have legal representation makes a huge difference in the outcome of cases: Between October 2000 and November 2018, about 82% of people in immigration court without attorneys were either ordered deported or gave up on their cases and left the country voluntarily, while only 31% of those with lawyers were deported or left.

The administration has succeeded in speeding the hiring of new immigration judges by 74%. The number of immigration judges has grown from 338 when the plan was introduced to 414 by the end of 2018.

Lawmakers have raised concerns that some of those new hires have been politically motivated. In May, House Democrats requested an investigation by the Justice Department Inspector General’s office into allegations that candidates have been chosen or rejected for perceived ideological views.

“The current administration has taken advantage of the court’s structural flaws,” the immigration lawyers association wrote, “introducing numerous policies … that dramatically reshape federal immigration law and undermine due process in immigration court proceedings.”

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

My Takeaways:

  • The DOJ politicos made the already bad situation immeasurably worse;
  • At no time did any of those supposedly  “in charge” seriously consider taking measures that could have promoted Due Process and fundamental fairness in a troubled system whose sole function was to insure and protect these Constitutional requirements;
  • Sessions was warned about the severe adverse consequences of eliminating “administrative closure” by EOIR, but went ahead with his preconceived “White Nationalist” agenda, based on bias, not law;
  • Deputy Attorney General Rod Rosenstein, who signed off on this monstrosity, is no “hero” just because he stood up to Trump on the Mueller investigation; he’s just another “go along to get along,” like the rest of the Trump DOJ political appointees (with the possible exception of FBI Director Chris Wray);
  • No sitting judge, indeed no real “stakeholder,” was consulted about these “designed to fail” measures;
  • The placement of what purports to be a “court system” dedicated to Due Process within the Justice Department is preposterous;
  • Congress, which created this parody of justice, and the Article III Courts who have failed to “just say no” to all removal orders produced in this “Due Process Free Zone” must share the blame for allowing this Constitutionally untenable situation to continue;
  • Once again, the victims of the Trump Administration’s “malicious incompetence” are being punished while the “perpetrators” suffer few, if any, consequences.

PWS

02-21-19

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UPDATE: Molly’s article  was the “front page lead” in today’s print edition of the LA Times.  

https://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Gotta give the crew at DOJ/EOIR HQ credit for screwing this up so royally that it’s now off the “back pages” and into the headlines where it belongs. You couldn’t buy publicity like this!

First EOIR Director David “No News Is Good News” Milhollan must be rolling over in his grave right now. And his “General Counsel/Chief Flackie,” my friend and former BIA Appellate Judge Gerald S. “No Comment/We Don’t Track That Statistic” Hurwitz must be watching all of this with amusement and bemusement from his retirement perch. Just goes to support the “Milhollan/Hurwitz Doctrine” that “only bad things can happen once they know you exist.”

PWS

02-22-19

 

AMERICA’S SHAME: 🤡 “CLOWN COURTS” PLUNGE TO NEW DEPTHS UNDER TRUMP & DOJ: Unpaid Judges, Court Clerks Who Can’t Afford The Rent, Illegal Rulings & Idiotic Policies By Biased & Ignorant DOJ Politicos, Unachievable Expectations, Unnecessary Postponements Caused By Trump & DOJ, & On Top Of It All A Few Unqualified Judges Who Discriminate, Cut Corners, & Intentionally Deny Due Process, All Combine To “Tank” Already Low Morale To Incomprehensible Lows!

https://www.cbsnews.com/news/government-shutdown-claims-immigration-judge-paychecks-as-court-morale-hits-a-historic-low/

Kate Smith reports for CBS News:

The nation’s roughly 400 immigration judges are getting hit hard by the government shutdown:

  • They’re about to miss their second paycheck.
  • About three-quarters have been furloughed and unable to work, which means their case backlog is growing.
  • The result: Morale is at a “historic low,” said Ashley Tabaddor, the president of the National Association of Immigration Judges and a Los Angeles-based immigration herself, in an interview with CBS News.

The immigration court docket is split into two categories: Hearings for immigrants who have been detained represent about 5 to 10 percent of the docket. These cases have been uninterrupted during the shutdown and have been overseen by approximately 100 judges who aren’t getting paid.

“I’ve been using the words ‘unprecedented’ and ‘surreal,’ and yet it keeps becoming more unprecedented and more surreal,” said Tabaddor. “It’s so unfortunate that we’ve reached this level of dysfunction.”

Adding to the low morale is a the massive backlog of cases, which has risen by nearly 50 percent since President Trump took office. As of November 30 the backlog stood at just over 800,000 cases, but if the shutdown continues through February it could break one million.

Worse still for the judges is a new quota system announced in October by the Department of Justice. It said that all judges would be required to complete 700 immigration cases in the following year; if they fall behind, their job security could be on the line.

“It’s so disconnected from reality,” said Tabaddor. “Those cases just can’t be completed in the timeframe that the administration is demanding. Frankly, it’s laughable.”

Given that many judges haven’t been able to work for more than a month, will the quota be waived? DOJ hasn’t given any guidance, said Tabaddor.

“It’s not like if you miss a day of work, they work just goes away,” Tabaddor said. “Everyone knows that they minute the shutdown is over, what awaits them is 10 times worse than what they left behind.”

“Judges jobs are on the line if they don’t meet these arbitrary number,” Tabaddor said. “People are very concerned.”

A call and email to the Department of Justice were not returned, but the agency’s website said that press inquiries may not be returned because of the government shutdown.

Currently, most non-detained judges have four to five thousand hearings scheduled through 2021 and in some cases 2022, Tabaddor said, noting that “every single day on their calendar is booked.” Immigrants who had hearings originally scheduled during the shutdown will most likely be forced to wait years before they’re able to get in front of a judge.

Forcing judges to rush through their quotas could have a devastating impact on immigration hearings, said Kate Voigt, the associate director of government relations at the American Immigration Lawyers Association. When forced to choose between their own job security and a through understanding of an individual’s case, many judges have gone with the former, pushing through cases without giving immigrants their due process, Voigt said.

The Department of Justice has “increased pressures on judges to churn out cases at lightning speeds, at the expense of due process and case-by-case determinations,” Voigt said in an email to CBS News.

In Charlotte, North Carolina some judges have refused to hear testimony from female asylum seekers from Central America, citing an now-overturned policy statement from former Attorney General Jeff Sessions that removed domestic and gang violence from admissible asylum criteria, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina, in an interview with CBS News. In one asylum hearing McKinney had last year prior to the government shutdown, Judge Barry Pettino refused to let his client testify, instead denying her asylum case outright because it dealt with gender-based violence, according to McKinney.

“My client didn’t think she was going to win her case, but she certainly didn’t think we were going to be in and out in 45 minutes,” McKinney said. “If the asylum seeker never gets to take the stand under oath, never gets to tell their story, that’s a fundamental due process problem right there.”

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In the words of the distinguished Judge Tabaddor, “surreal!” Why is it “OK” to have a court operating in the “Twilight Zone” making life or death decisions? How would you like YOUR life or YOUR loved one’s life to be determined by this dysfunctional mess?

Simply shameful! Also completely unnecessary. Trump and the DOJ are totally unqualified to run any court, let alone one with life or death authority. Congress is paralyzed. If the Article IIIs don’t step in, take this over, and require the restoration of at least rudimentary Due Process, there might not be any removals in the future!

How will they “reopen” this mess even when the “Trump shutdown” ends? Why won’t most of the overworked, underpaid, under appreciated, stressed out Court Clerks who keep this (unautomated, paper heavy) “Rube Goldberg Contraption” afloat, and who live paycheck to paycheck, have found new jobs where they are fairly paid and appreciated? Why won’t all the retirement-eligible judges head for the exits where life is better, the paychecks keep coming, and you can actively fight the Trump idiocy?

PWS

01-23-19

 

PWS

01-23-19