"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Immigration Judges Say New Quotas Undermine Independence
WASHINGTON —
The nation’s immigration court judges are anxious and stressed by a quota system implemented by Attorney General Jeff Sessions that pushes them to close 700 cases per year as a way to get rid of an immense backlog, the head of the judges’ union said Friday.
It means judges would have an average of about 2½ hours to complete cases — an impossible ask for complicated asylum matters that can include hundreds of pages of documents and hours of testimony, Judge Ashley Tabaddor said.
“This is an unprecedented act, which compromises the integrity of the court and undermines the decisional independence of immigration judges,” she said in a speech at the National Press Club, in her capacity as head of the union. Tabaddor said the backlog of 750,000 cases was created in part by government bureaucracy and a neglected immigration court system.
“Now, the same backlog is being used as a political tool to advance the current law enforcement policies,” she said.
Signature issue
Curbing immigration is a signature issue for the Trump administration, and the jobs of the nation’s more than 300 immigration judges are in the spotlight.
They decide whether someone has a legal basis to remain in the country while the government tries to deport them, including those seeking asylum. Tabaddor presides in Los Angeles, where she oversees 2,000 cases, including many involving juveniles.
The judges are employees of the Justice Department’s Executive Office for Immigration Review, which is overseen by the attorney general — unlike the criminal and civil justice systems where judges operate independently.
Immigration court judges have repeatedly asked for independence, and Tabaddor brought it up again Friday, calling the current structure a serious design flaw.
A Justice Department spokesman said the union has repeatedly tried to block common-sense reforms that would make the judges’ jobs better, and that the proper home for the courts is where they are right now, under DOJ.
FILE – The Arlington Immigration Court building in Arlington, Virginia. The courtrooms inside are plain, and cases are dispatched quickly, each one settled in five to 10 minutes. (A. Barros/VOA)
Earlier this year, the Justice Department sent a memo to immigration judges telling them they would need to clear at least 700 cases a year in order to receive a “satisfactory” rating on their performance evaluations. Sessions has pushed for faster rulings and issued a directive that prevents judges from administratively closing cases in an effort to decrease the backlog by 50 percent by 2020.
This month, he appointed 44 new judges, the largest class of immigration judges in U.S. history, and has pledged to hire more. He said in a speech to the judges that he wouldn’t apologize for asking them to perform “at a high level, efficiently and effectively.”
Tabaddor wouldn’t say whether the quotas were also putting pressure on judges to deport more people — not just decide cases faster.
“There’s certainly no question they’re under pressure to complete more cases faster,” she said. “I think I would just say listen to the attorney general’s remarks and you can decide what messaging is going to be sent.”
Asylum qualifications
Earlier this summer, Sessions tightened the restrictions on the types of cases that can qualify someone for asylum, making it harder for Central Americans who say they’re fleeing the threat of gangs, drug smugglers or domestic violence to pass even the first hurdle for securing U.S. protection.
Immigration lawyers say that’s meant more asylum seekers failing interviews with U.S. Citizenship and Immigration Services to establish credible fear of harm in their home countries. They also say that immigration judges are overwhelmingly signing off on those recommendations during appeals, effectively ending what could have been a yearslong asylum process almost before it’s begun.
President Donald Trump hasn’t been behind the move to bolster the roster of judges. “We shouldn’t be hiring judges by the thousands, as our ridiculous immigration laws demand, we should be changing our laws, building the Wall, hire Border Agents and Ice,” he said in a tweet in June, referring to Immigration and Customs Enforcement.
We need an Article I independent US Immigration Court now!
Congress seems to be tied up in knots. Will the Article IIIs step up and begin enforcing the Due Process clause of the Constitution?
The solutions — remand every case for a new hearing in which: 1) Jeff Sessions shall not be involved, and 2) all precedents issued by Jeff Sessions are considered null and void. Jeff Sessions shall, however, be allowed to appear and make arguments as the attorney for DHS.
The Immigration Court System is collapsing. The lives of hundreds of thousands are at risk. We need less talk and more action to enforce Due Process!
Some historical perspective: EOIR once illegally tried to bar Judge Tabaddor from hearing Iranian cases because she attended a reception with other prominent Iranian Americans! Compare that the with the overt, unethical anti-immigrant bias that Jeff Sessions spews out on a regular basis. His bias affects justice for every respondent appearing in Immigration Court.
Is 21st Century America going to permit “political show trials” every day in Immigration Court?
From: John Manley [mailto:jmanleylaw@gmail.com] Sent: Monday, April 16, 2018 12:34 PM To: AILA Southern California Chapter Distribution List <southca@lists.aila.org> Subject: [southca] IJ Tabaddor to testify in Congress Wednesday
Colleagues,
As currently scheduled, Judge A. Ashley Tabaddor is expected to testify this Wednesday at 2:30PM EST 11:30AM PST. at a hearing on Strengthening and Reforming America’s Immigration Court System
John M. Manley
Attorney at Law
11400 W Olympic Blvd., Suite 200
Los Angeles, CA 90064
Phone: (310) 597-4590
Fax: (310) 597-4591 www.johnmanley.net;
email: jmanleylaw@gmail.com
The nation’s 58 immigration courts long have been the ragged stepchild of the judicial system – understaffed, technologically backward and clogged with an ever-growing backlog of cases, more than 680,000 at last count.
But a plan by Atty. Gen. Jeff Sessions, a longtime immigration hawk, aimed at breaking the logjam and increasing deportations of immigrants in the country illegally has drawn surprising resistance from immigration judges across the country.
Many say Sessions’ attempts to limit the discretion of the nation’s 334 immigration judges, and set annual case quotas to speed up their rulings, will backfire and made delays even worse — as happened when previous administrations tried to reform the system.
“It’s going to be a disaster and it’s going to slow down the adjudications,” warned Lawrence O. Burman, secretary of the National Assn. of Immigration Judges, a voluntary group that represents judges in collective bargaining.
Cases already move at a glacial pace. Nationwide, the average wait for a hearing date in immigration court is about two years, according to data analyzed by the Transactional Records Access Clearinghouse, a research organization at Syracuse University.
But some jurisdictions are much slower. The immigration court in Arlington, Va., where Burman is a judge, has a four-year backlog, meaning hearings for new cases are being scheduled in 2022. Burman says the reality is far worse — the docket says he has 1,000 cases scheduled to begin on the same day in 2020.
. . . .
Another problem: Poorly funded immigration courts still use paper files, slowing access to information, while other federal courts use digital filing systems.
The Executive Office of Immigration Review, the Justice Department office that oversees the courts, started studying the problem in 2001. It has issued numerous reports and studies over the last 17 years, but accomplished little in the way of computerized record keeping.
. . . .
The judges don’t see it that way. Burman and other leaders of the immigration judges’ association, in an unusual public protest, say Sessions’ plan will force judges to rush cases and further compromise the courts’ already battered reputation for fairness.
“Clearly this is not justice,” said the association president, Judge A. Ashley Tabaddor, who sits in Los Angeles, the nation’s busiest immigration court. The plan will “undermine the very integrity of the court.”
Sessions is not the first U.S. attorney general to try to push deportation cases through the system faster.
John Ashcroft, who served under President George W. Bush, unveiled a streamlined approach in 2002, firing what he called softhearted judges from the 21-member Board of Immigration Appeals, the highest administrative body for interpreting and applying immigration laws.
The result was an increase of cases sent back by federal courts, which reviewed the decisions – and more delays.
Under the Obama administration, immigration judges were ordered to prioritize old cases to try to clear the backlog. But after thousands of unaccompanied minors from Central America surged to the southwest border in 2014, they were told to focus on those cases instead. As the dockets were reshuffled, the backlog kept growing.
Last fall, Sessions ordered 100 immigration judges from around the country to travel to courts on the border to move cases quickly. The Justice Department pronounced it a success, saying they finished 2,700 cases.
Some of the judges were less enthusiastic.
“We had nothing to do half the time,” said Burman, who spent eight weeks in border courts. “I’m not saying it’s a bad idea, but they sent more people than they needed to” while his caseload in Virginia languished for those two months.
Immigration advocates say the answer is more resources: more judges, more clerks, and legal representation for immigrants. They also say the courts should be independent, not under the Justice Department.
“Everybody wants to hear there’s some magical solution to make all this fine. It’s not going to happen,” said Paul Schmidt, a former immigration judge and former chairman of the Board of Immigration Appeals.
“If you’ve got a system that is producing defective cars, making the system run faster is just going to result in more defective cars,’ he said.
Staff writer Brian Bennett contributed to this report.
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Go on over to the LA Times at the above link for Joseph’s complete article.
Those of us in the Immigration Courts at the time of the “Ashcroft debacle” know what a complete disaster it was from a due process, fairness, and efficiency standpoint. Far too many of the cases were returned by the Article III Courts for “redos” because Immigration Judges and BIA Members were encouraged to “cut corners” as long as the result was an order of removal.
Some judges resisted, but many “went along to get along.” Some of the botched cases probably still are pending. Worse, some of the botched, incorrect orders resulted in unjust removals because individuals lacked the resources or were too discouraged to fight their cases up to the Courts of Appeals. And, the Courts of Appeals by no means caught all of the many mistakes that were made during that period. Haste makes waste. I analogized it to being an actor in a repertory theater company playing the “Theater of the Absurd.” Now, Sessions is promoting a rerun of another variation on that failed theme.
Somebody needs to fix this incredibly dysfunctional system before shifting it into “high gear.” And, it clearly won’t be Jeff Sessions.
I have permission Judge Tabaddor to release the text of the following e-mail, dated April 2, 2018, that I received from her (solely in her capacity as NAIJ President) because I am a retired member of the NAIJ:
Dear NAIJ Members,
Last Friday we all received the Director’s announcement of his decision to impose quotas and deadlines on immigration judges as a basis of our individual performance evaluations effective October 2018. To clarify any confusion, I would like to re-iterate that at no point has NAIJ ever agreed that quotas and deadlines are an appropriate manner in which to evaluate immigration judge performance. To the contrary, NAIJ has always remained deeply concerned about this unprecedented decision which undermines our independent decision-making authority, invites unnecessary litigation, and adds to the existing burdens and demands on our judges.
I also would like to reiterate that NAIJ is pursuing all available means to ensure that these measures are fairly implemented. We have been engaged with EOIR for the past six months on these very issues and continue to stand in full support of our judges and the integrity of the Court. Prior to the email, NAIJ was pursuing the terms of an MOU with EOIR in an effort to reach a mutually agreeable solution in an informal and more cooperative fashion. However, with the Director’s announcement, NAIJ is now exercising formal bargaining rights.
We invite you to reach out to myself or any of our officers and representatives with any questions, concerns, or suggestions. We will keep you apprised of the ongoing negotiations and developments on this issue.
Thank you
Ashley Tabaddor
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As I had suggested earlier, the claim that the NAIJ had “agreed” to the production quotas was simply another lie by the Sessions DOJ. Lies, mis-representations, distortions, bogus statistics — why is this Dude our Attorney General given his proven record of disdain for truth, our law, our Constitution, and human decency as well as his total lack of any judicial qualifications to be administering perhaps the largest Federal Court system?
Another “under the radar” aspect of this toxic attempt to compromise due process in the Immigration Court system was pointed out to me by my good friend and colleague retired U.S. immigration Judge Carol King of San Francisco. As Judge King points out, by requiring U.S. Immigration Judges to render almost all final decisions at the hearing or within a few days of the hearing, the Attorney General is basically forcing them to use the widely discredited “contemporaneous oral decision” format rather than the preferred “full written decision” format.
Having reviewed thousands of Immigration Judge decisions during my career as an Appellate Immigration Judge on the BIA, and rendered thousands more during my time as a U.S. Immigration Judge in Arlington, I can say that with few exceptions, the “oral decision format” is grossly inadequate to meet the needs of today’s complex asylum litigation, particularly for cases to go to the Courts of Appeals. Oral decisions commonly have factual and citation errors as well as grammatical, spelling, and punctuation errors caused by the totally un-judicial format.
Moreover, except in unusual cases, Immigration Judges are not permitted to have a transcript made before rendering a decision! The case is only transcribed by EOIR at the time an appeal to the BIA is actually taken, well after the Immigration Judge has completed his or her decision.
At the beginning of my 45 year legal career, I used “real dictation” in some of my jobs. The basic idea was that the initial draft was a “quick and dirty” that was then reviewed, revised, and corrected numerous times before being issued as a “final.” Indeed, at Jones Day, which had a typing pool back in the 1980s when I was there, I used to leave my dictated drafts when I went home at night for the “overnight typing pool” to have on my desk the next morning. I would never have dreamed of issuing a client letter or brief that hadn’t been reviewed, revised, and retyped (and then probably read by one of my colleagues).
By contrast, a U.S. Immigration Judge must dictate a final oral decision at the conclusion of the hearing, or shortly thereafter, with the parties present (talk about a waste and disrespect for time) and no actual transcriber in the room. If an appeal is taken, the oral decision portion of the digital recording is “separated” and typed in a decision format. While the Immigration Judge does receive an electronic copy of the decision at the time it goes to the Board Panel for adjudication, my experience is that any corrections by the Immigration Judge are seldom in the BIA record file at the time the BIA acts on the case. Moreover, trial judges are specifically limited to making “editorial” changes. Major changes to legal analysis, fact-finding, or even results can’t be made during this review process.
Unlike other Federal and State judges in courts of comparable authority, U.S. Immigration Judges also are forced to work without any individually selected Judicial Law Clerks (“JLCs”). Immigration Judges must share a “pool” of JLCs (occasionally not even in the same court location) selected, assigned, and “supervised” by EOIR Headquarters with minimal, if any, input from the Immigration Judges.
Moreover, the JLCs report to and are “evaluated” by an Assistant Chief Judge who more often than not is in Falls Church, VA, far removed from the actual trial courts! (Immigration Judges are given an option to submit performance comments” to the ACIJ, but never see the final evaluations of the JLCs). Sometimes a JLC may go a year or more without any “in person” interaction with his or her “supervisor.” What other judges, in any system, are forced to work under these types of conditions?
I firmly believe that the clearly inferior work product produced by the “oral decision” format is one of the reasons the U.S. Immigration Judges have an unfortunate “unprofessional” reputation with some of the Courts of Appeals.
Let’s use a “real life” example. My son was a JLC for a U.S. District Court Judge. That Judge actually had sufficient “out of court” time to do some of his own writing. If asked to prepare a draft decision, my son submitted it to his District Judge who carefully reviewed, revised, and commented on the draft. Then my son reworked the decision to his District Judge’s individual specifications and all citations, fact-finding, and other references were carefully checked, as well as spelling, punctuation , style, etc. The end product looked somewhat like a scholarly law review article in judicial decision format. Not surprisingly, that District Judge’s opinions were seldom reversed by the Court of Appeals.
Now imagine a Court of Appeals Judge, just after reading that decision, picks up an immigration file involving a complex life or death asylum case. The decision looks like it was written by a high school student who flunked remedial English. Run on sentences, not many paragraphs, non-standard punctuation, mis-spellings and incomprehensible citations. Moreover, on further examination, the Circuit Court Judge’s personal law clerk has already discovered some glaring factual errors in the Immigration Judge’s “stream of consciousness” recitation of the facts. The BIA “summarily affirmed” the result in a single-Member decision with no reasoning! No wonder the Immigration Courts are often lowly regarded by the reviewing Circuit Courts!
U.S. Immigration Judges are being placed in an impossible position. While Sessions proposes to “grade” them on appellate reversals and remands, he simultaneously will restrict and artificially limit their ability to do research, review actual records and transcripts, and prepare careful, high quality written decisions. Sessions intends to impose new “quotas” without meaningful input from: 1) the ImmigratIon Judges who hear the cases; 2) the Appellate Immigration Judges on the BIA; 3) the parties and attorneys who appear in Immigration Court, or 4) the U.S. Circuit Court Judges who must review the Immigration Court’s work product. What kind of process is that? Why is Sessions being allowed to get away with this? No other court system in America operates in such an intentionally dysfunctional manner.
Instead of working on real reforms that would improve the quality of justice and the ability of already overwhelmed U.S. Immigration Judges to deliver fairness and due process, Jeff Sessions intentionally is further degrading both the Immigration Judges and the process! “Just say no” to the malicious incompetence of Jeff Sessions and his DOJ!
The news was not welcomed by the National Association of Immigration Judges. Judge A. Ashley Tabaddor, the current president of the union, says the quotas are “an egregious example of the conflict of interests of having the immigration court in a law enforcement agency.” A quota system invites the possibility that judges will make decisions out of concern about keeping their jobs, she says, rather than making what they think is the legally correct decision. And even if they don’t, she points out, respondents in immigration court may argue that they do.
“To us, it means you have compromised the integrity of the court,” says Tabaddor, who is a sitting immigration judge in Los Angeles but speaking in her capacity as NAIJ’s president. “You have created a built-in appeal with every case. You are going to now make the backlog even more. You’re going to increase the litigation, and you are introducing an external factor into what is supposed to be a sacred place.”
Retired immigration judge Paul Wickham Schmidt adds that the new metrics are unworkable. Reversal on appeal is influenced by factors beyond the judge’s control, he says, including appeals that DHS attorneys file on behalf of the government and shifting precedents in higher courts.
McHenry’s email said that “using metrics to evaluate performance is neither novel nor unique to EOIR.” Tabaddor disagrees. Federal administrative law court systems may have goals to aspire to, she says, but those judges are, by law, exempt from performance evaluations. Nor have the immigration judges themselves been subject to numeric quotas in the past.
“No other administration before this has ever tried to impose a performance measure that [had] this type of metrics, because they recognized that immediately, you are encroaching on judicial independence,” she says.
Schmidt agrees. “No real judge operates under these kinds of constraints and directives, so it’s totally inappropriate,” says Schmidt, who has also served on the Board of Immigration Appeals. “And it’s part of an ongoing effort, I think, to diminish the judges to more or less the status of immigration adjudicators rather than independent judges.”
Tabaddor adds that the Justice Department forced the union last year to drop a provision forbidding numbers-based performance evaluations from its contract negotiations. This was not a sign that NAIJ agrees with the quotas, she says, but rather that the union’s hands are tied under laws that apply to federal employees.
The memo continues a trend of Justice Department pressure on immigration judges to resolve cases. Attorney General Jeff Sessions, who has the power to refer immigration law cases to himself, is currently taking comment on whether judges should have the power to end cases without a decision. (The ABA has said they should.)
Last summer, the chief immigration judge discouraged judges from granting postponements. Sessions did the same in a December memo that referenced the backlog as a reason to discourage “unwarranted delays and delayed decision making.”
Sessions has power over the immigration courts because they are a branch of the DOJ, not an independent court system like Article III courts. Independence has long been on the judges’ union’s wish list, and it was one topic when HBO’s Last Week Tonight with John Oliverexplored some problems with immigration courts on Sunday.
As the ABA Journal reported in 2017, the immigration courts have had a backlog of cases for most of the past decade, fueled by more investment in enforcement than in adjudication. Schmidt claims that unrealistic laws and politically motivated meddling in dockets also contribute to the backlog. As of the end of February, 684,583 cases were pending, according to Syracuse University’s Transactional Records Access Clearinghouse, which gets its data from Freedom of Information Act requests.
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Read Lorelei’s full article at the link.
Clearly:
Today’s Immigration Courts are not “real” courts in the sense that they are neither independent nor capable of truly unbiased decision-making given the clear bias against immigrants of all types expressed by Sessions and other officials of the Trump administration who ultimately control all Immigration Court decisions.
The Immigration Courts have become a mere “facade of Due Process and fairness.” Consequently, Federal Courts should stop giving so-called “Chevron deference” to Immigration Court decisions.
The DOJ falsely claimed that the NAIJ “agreed” to these “performance metrics” (although as noted by Judge Tabaddor, the NAIJ might have lacked a legal basis to oppose them).
The current Immigration Court system is every bit as bad as John Oliver’s TV parody, if not actually worse.
America needs an independent Article I Immigration Court. If Congress will not do its duty to create one, it will be up to the Federal Courts to step in and put an end to this travesty of justice by requiring true Due Process and unbiased decision-making be provided to those whose very lives depend on fairness from the Immigration Courts.
