"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.
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)
Dear NAIJ Members,
On Friday, September 27, 2019, the National Press Club (NPC) convened a Headliners “Newsmaker” Press Conference entitled “Immigration Courts in Crisis.” Moderated by NPC President and award-winning AP Washington Investigations Editor journalist Alison Fitzgerald Kodjak, the panel presentation explored sweeping and controversial changes in the nation’s Immigration Courts. The presentations were led by NAIJ President Ashley Tabaddor, followed by the ABA President Judy Perry Martinez, and the American Immigration Lawyers Association (AILA) Second Vice President Jeremy McKinney. The trio expressed broad consensus around key concerns undermining the independent decision making authority of Immigration Judges and compromising the integrity of the court.
Judge Tabaddor honed in on the specifics of how the decisional independence of judges and the independence of the court is under attack by the Department of Justice through their actions ranging from the imposition of unrealistic and unreasonable quotas and deadlines to the recent announced DOJ regulation, effective immediately, which collapsed into a single individual the role of the chief policy director with the role of the chief appellate judge. The EOIR Director was previously prohibited from engaging in any judicial role over cases because of the political nature of the position, but has now been given authority to interfere in individual cases, direct the result of cases, and to sit as an appellate judge over immigration judge decisions. Judge Tabaddor also reported on Friday’s filing of two unfair labor practice petitions against the Department of Justice with the Federal Labor Relations Authority. The ULPs stem from the Agency’s efforts to decertify the Association under the guise of reclassifying the Immigration Judges as managers and policy-makers and its subsequent personal attacks on the Association leadership from the podium of the Department of Justice.
ABA President Perry Martinez (Judy) was a powerful voice on a number of important issues ranging from support for fair proceedings and the rule of law to the importance of effective representation for individuals in removal proceedings.
Finally, AILA Vice President McKinney (Jeremy) reported on the impact of the “tent” courts that have been shrouded in secrecy with wholly inadequate operational logistics related to attorney access. He said, “DHS not only has complete control over access to these facilities, but DHS also has complete control over attorney/client representation when migrants are on the U.S. side of the border.” He explained that the program creates insurmountable hurdles to attorney representation, and as a result, as of the end of June, only 1.2% of asylum seekers had been able to obtain counsel.
The three speakers were aligned in the NAIJ’s call for a lasting solution to these and other problems plaguing the Immigration Court system — legislative action to restructure the courts in a manner offering independence from the Department of Justice, and the creation of an independent Article I Immigration Court.
Several national and local news outlets, including the Wall Street Journal, the New York Times, CNN, and others, were present and have reported on the event. To watch the press conference, see:
If you have any questions or comments, or if you would like to have copies of the ULPs or Judge Tabaddor’s remarks, please feel free to reach out to Judge Tabaddor directly atashleytabaddor@gmail.com.
Every day, the Trump Administration is further reducing the Immigration Courts to “Kangaroo Courts” while Congress and the Article IIIs shirk their respective duties to protect Due Process!
WASHINGTON—The union representing the nation’s more than 400 immigration judges filed a labor complaint against the Justice Department, escalating an already tense situation between the Trump administration and the judges carrying out its immigration policy.
The judges—who unlike most other jurists work for the Justice Department—based their complaint on two recent incidents.
The most recent occurred in late August, when the Executive Office of immigration Review, which oversees the judges, included a link to a blog post on a white nationalist website in its daily news briefing emailed to all employees. The blog post in question described immigration judges using several racial and ethnic slurs, angering judges around the country and prompting a formal letter to the office’s director.
The other incident came in April, when the union sought clarification from the Justice Department on whether the judges’ positions made them regular employees or managers in the course of contract negotiations. The Justice Department didn’t respond to the query but later filed a petition with the Federal Labor Relations Authority to decertify the union, on the basis it considered the judges managers.
The union’s complaint was filed with the Federal Labor Relations Authority, and could slow the Justice Department’s attempts to disband the union.
The judges’ union, known formally at the National Association of Immigration Judges, allows its leadership to fill a unique role as government employees empowered to criticize their employer and, by extension, the administration’s immigration policies.
The union has been outspoken about the government’s efforts to exert increasing political control over the nation’s immigration court system, narrowing the judges’ discretion around who can qualify for asylum.
Attorney General William Barr, for example, overruled the Board of Immigration Appeals in deciding people with family ties to gang targets or others with domestic violence claims couldn’t qualify for asylum. More recently, the administration has been temporarily allowed to enforce a rule disqualifying anyone for asylum if they traveled through a third country en route to the U.S. The rule faces further court challenges.
In its effort to move more quickly through a backlog of pending cases that has grown to more than one million, the Justice Department has also placed new quota requirements on the judges. It has pressed individual judges to move through cases faster, giving judges a one-year deadline to decide each case and setting a 700-case annual quota. Only about a third of judges are on track to meet that goal, according to A. Ashley Tabaddor, the union’s president.
The administration has also begun shifting cases to judges known to work quickly, sometimes handing cases to courts located far from where an immigrant is living. More recently, it has also begun diverting some judges from their normal duties to hear cases of the government’s “remain in Mexico” program, under which migrants who have claimed asylum must wait in Mexican cities while their cases make their way through the courts.
The government has set up makeshift tent courts at ports of entry to process these cases more quickly, and judges have been hearing cases using a videoconferencing tool. These courts, unlike most others in the country, aren’t open to the public or to journalists.
The union rebuked the tent courts’ closed conditions as “another glaring reason why the immigration courts have been deprived of key characteristics of what it means to be a court in the United States.”
The union has also argued that immigration courts should be given judicial independence, rather than answering to the Justice Department’s political leadership.
Thanks, Michelle, for bringing into the national spotlight this important story about the DOJ’s improper influence over the U.S. Immigration Courts and their outrageous attempts to suppress and punish truth and dissent.
We need an independent Article I U.S. Immigration court enacted by Congress. Until that happens, vulnerable individuals will continue to have their most important rights denied by this unconstitutional parody of a fair and impartial court system. In the meantime, the Article III Courts continue to ignore the glaring constitutional defects that must be addressed before approving any more defective “removal orders” and denials of asylum and other relief emanating from these fatally defective “captive courts” that have been “redesigned” to function as part of the DHS enforcement apparatus.
WASHINGTON — The nation’s immigration judges lost a key leader this week, the latest in a string of departures at the top of the system amid a backlog of cases and a migrant crisis at the southwestern border.
The official, David Neal, said that he would retire from his position as head of the judges’ appeals board effective Saturday. “With a heavy heart, I have decided to retire from government service,” Mr. Neal wrote in a letter sent to the board Thursday and obtained by The New York Times.
He gave no reason for his abrupt departure and asked his colleagues to “keep true to your commitment to fairness and justice.”
Follow National Security
Follow National Security to get the stories that matter most to you. Updated regularly in For You
.
FOLLOW
NATIONAL SECURITY
Success!You’re following National Security. See new stories in For You
.
FOLLOWING
NATIONAL SECURITY
No replacement has been announced, and a Justice Department spokesman declined to comment, citing a policy to not do so on personnel matters.
Mr. Neal’s decision follows a shake-up at the Executive Office for Immigration Review, the court system that adjudicates the country’s immigration cases, including asylum cases. It is part of the Justice Department, not the judicial branch.
Three of its senior career officials — MaryBeth T. Keller, the chief immigration judge; Jean King, the general counsel; and Katherine H. Reilly, the deputy director — all left their roles this summer. Ms. King stayed at the immigration office in a different post.
Mr. Neal’s departure also comes amid the backdrop of the Trump administration’s efforts to curb both illegal and legal immigration, which have taxed the immigration courts, the criminal courts and border patrols along the nation’s southwestern border and prompted long-running discontent among immigration judges that they are being used to expedite deportations.
As Mr. Trump has sought to suppress immigration and cut down on the number of people who claim asylum in the United States, he has notched two wins at the Supreme Court.
On Wednesday, justices said in an unsigned order that amid an ongoing legal battle, the administration could bar most Central American migrants from seeking asylum in the United States if they passed through another country and were not denied asylum there. That decision will allow the administration to effectively bar migration across the southwestern border by Hondurans, Salvadorans, Guatemalans and others who must travel through other countries to get to the United States.
And in July, the Supreme Court said that the Trump administration could use $2.5 billion in Pentagon money to build a barrier along the border with Mexico, which would help Mr. Trump fulfill a campaign promise to build a wall on the border to stop immigration.
Amid these hard-line policies, a vocal group of immigration judges — part of the larger total of about 400 judges and appeals judges — have been at loggerheads with the Trump administration for more than a year.
Leaders of the judges’ union have pushed back against the imposition of quotas that they have said would expedite deportations at the expense of due process. Under former Attorney General Jeff Sessions, they accused the Justice Department of trying to turn the immigration courts into a deportation machine.
Mr. Sessions treated the judges “like immigration officers, not judges,” said Paul Schmidt, a former judge in the immigration courts.
Some judges have also bristled at a recent Justice Department decision that handed over the power to rule on appeals cases to the director of the office, a political appointee. The judges saw the move as an attempt to undermine their authority.
That decision also directly impacted Mr. Neal, demoting him “in practice,” by transferring his authority to decide appeals cases to the director of the office, said Ashley Tabbador, the president of the union that represents immigration judges.
“This regulation upends the entire system created to decide these cases,” Ms. Tabbador said. Should the new system run into problems, “the chairman would have been held accountable. I would have quit, too, if I were in David’s position.”
Though they are part of the Justice Department, many immigration judges view themselves as independent arbiters of the law and believe they must act within the confines of existing immigration statutes.
They have long deliberated over whether they should be part of the Justice Department — a debate that has intensified under President Trump.
Last month, tensions increased when a daily briefing that is distributed to federal immigration judges contained a link to a blog post that included an anti-Semitic reference and came from a website that regularly publishes white nationalists.
After the episode, the immigration review office said that it would stop sending the daily briefing and would not renew its contract with the service that provided it.
**********************************
The farce taking place as the Trump DOJ politicos “remake” the Immigration Courts into a tool of DHS enforcement and repression of Due Process and fundamental fairness will go down as one of the darkest and most disturbing episodes in American legal history.
The inability or unwillingness of the other two branches of Government, Congress and the Article III Judiciary, to intervene and fulfill their Constitutional duties of protecting Due Process, fundamental fairness, equal protection, First Amendment rights of union members, and separation of powers show a catastrophic failure of American institutions that are charged with protecting and advancing all of our rights.
In the end, nobody including Trump’s tone-deaf supporters and enablers, will escape the adverse consequences of giving in to White Nationalist authoritarianism.
The NAIJ has been particularly effective at arguing how such actions support the need for an independent Article I immigration court, outside of the control of the executive branch. The idea has been endorsed by numerous law groups, including the American Bar Association and the Federal Bar Association, and is now a common talking point among members of Congress. The move to decertify the NAIJ is clearly an effort to end such efforts.
A statement issued by Reps. Jerrold Nadler, D-N.Y., and Zoe Lofgren, D-Calif., chairs of the House Judiciary Committee and its Subcommittee on Immigration and Citizenship, recognized the decertification petition as “blatant retaliation for this opposition and an obvious attempt to shield immigration court operations from public view.”
The congressional leaders continued that “the Administration’s attempt to silence immigration judges by engaging in frivolous union busting tactics underscores why we need an immigration court system that is separate and independent from the Executive Branch. In the coming months, the Judiciary Committee will hold hearings to explore the current state of the U.S. immigration court system and develop a foundation for legislation to create an independent immigration court.”
. . . .
*****************************
Go on over to Jeff’s blog a the link to read the complete article, which originally appeared on Law360.
Under Trump, the Department of “Justice” clearly has become part of the problem rather than part of the solution. Under a future honest Administration, the DOJ is in need of a complete housecleaning and reorganization. We need some legislative safeguards to insure that the DOJ promotes, rather than undermines, the “rule of law.”
Of course, the problem starts — but doesn’t end — with corrupt leadership from folks like Jeff “Gonzo Apocalypto” Sessions and Bill “Trump’s Toady” Barr. But, it also takes some “go along to get along” amoral so-called “career bureaucrats” at DOJ to carry out these invidious policies.
Obviously, the need for an independent Article I U.S. Immigration court becomes more clear and pressing every day that the current farce operating within the DOJ is allowed to continue!
Confusion, delays as videos replace interpreters at immigrants’ hearings
By Tal Kopan
WASHINGTON — The Trump administration has been slow to implement its new policy replacing in-person interpreters with informational videos at immigrants’ initial hearings, but the switch is causing delays and confusion where it has been introduced, including in San Francisco, observers say.
So far, the policy has been rolled out to courts in just four cities: San Francisco, Los Angeles, Miami and New York.
It’s not clear when the policy will expand. A spokesman for the Justice Department division that oversees the courts said the agency “is taking into consideration all feedback before additional translation videos are created and the program is rolled out to further immigration courts.”
Judges and attorneys observing the courts say the change has mostly served to delay proceedings, by adding lengthy steps and information that is not necessary for all migrants to hear.
After the videos are shown, each immigrant is called up for his or her individual hearing and may have questions for the judge. Although judges are now barred from scheduling in-person interpreters for the hearings, at times interpreters can be found on short notice in the courthouses. When none is available, judges must try a telephone service to reach an interpreter.
At issue are what are called master calendar hearings — immigrants’ first appearance in courts that determine whether they can remain in the U.S. The typically rapid-fire sessions serve to inform migrants of their rights and the process they will go through. Judges also schedule their next hearings.
Many immigrants in the system are Spanish speakers, but it’s also common for Chinese, Creole, and several indigenous languages from Central America and around the world to be spoken in courtrooms.
Judges in courts that have made the change are required to play either a Spanish-dubbed or English-language video for immigrants who do not have attorneys representing them. The 20-minute video runs through a lengthy list of technical legal advisories. Videos in other languages are not yet available, but the Justice Department has plans to introduce them.
Most of the dozens of immigrants going through their initial hearings Tuesday in San Francisco were shown the video. Many of them had attorneys present who translated, and others were able to use a Spanish-speaking interpreter who was on hand. Languages spoken in court included Spanish, Punjabi, Hindi, Mandarin and Fijian.
One hearing in the courtroom of Judge Arwen Swink involved a Mongolian woman who needed translation. After about five minutes, Swink was able to secure an interpreter in her language through the telephone service Lionbridge.
Swink asked the interpreter to introduce himself to the woman, who did not have an attorney, to ensure that she understood him. The interpreter said he had trouble hearing, but court staffers brought the microphone closer to the woman and the session was able to proceed.
With an interpreter in the room, such a hearing can take five minutes or less. The woman’s case took 15 minutes.
The Chronicle has obtained transcripts of the separate videos that are played for immigrants who are in detention and not in detention, as well as an FAQ handout they receive.
Roughly a fifth of the videos are devoted to a discussion of “voluntary departure,” under which immigrants can go back to their home country without being penalized if they try to come back someday. The videos also warn immigrants of the criminal consequences of trying to re-enter the country illegally after being deported.
Legal experts and veteran immigration judges say neither topic was commonly brought up in initial hearings before the videos were introduced because they are most relevant at the end of cases, if migrants do not prevail in their bid to remain in the U.S. Several said they feared the emphasis on voluntary departures and criminal penalties could prompt immigrants with valid claims to stay in the U.S. to waive their right without fully understanding what they’re doing.
The Justice Department did not consult with the union that represents immigration judges before making the change, and has proceeded despite ongoing bargaining with the group. The result is “lots of confusion, constantly changing parameters of the program by the agency and frustration among many judges,” said Ashley Tabaddor, president of the National Association of Immigration Judges and an immigration judge in Los Angeles.
Tabaddor added that courts in New York and Miami have had trouble securing help by phone, and that cases have been delayed in the Los Angeles court because of shortages of interpreters.
Amiena Khan, the union’s executive vice president and a judge in New York, said the videos make for a “really long day” for unrepresented immigrants who have to wait through proceedings for all migrants who have attorneys before watching a 20-minute video. She finds herself repeating or adding key advisories when immigrants are called before her.
“There was no problem that needed to be solved by the introduction of the video,” Khan said. “What I think really bothers me is that it’s mandatory. I think if it was discretionary as a tool for the judge to use, it could be helpful. (But) it takes away our judicial independence as to what method to employ to best get through the day’s docket.”
Khan and former immigration Judge Jeffrey Chase, who reviewed the transcripts, also noted that the videos do not include information that would be important for immigrants, including that they have only one year to formally apply for asylum in the U.S.
“The information provided is misleading in a way that can lead to a noncitizen’s removal,” said Chase, who now volunteers for organizations that provide legal assistance to immigrants.
Laura Lynch, senior policy counsel for the American Immigration Lawyers Association, said the transcripts show that the videos use “scare tactics” instead of informing immigrants of their rights. The videos warn immigrants against filing frivolous asylum claims, but don’t explain what asylum is, she noted.
“The videos provide an overwhelming amount of information that no one can easily digest in one setting,” Lynch said. “What’s more disturbing is that the content itself only tells one side of the story.”
*************************************
Click on the link for Tal’s full story with links to actual transcripts of this “parody of justice.”
This is DOJ/EOIR’s “malicious incompetence” in action. Accurate interpretation is essential to Due Process and fundamental fairness as well as the hallmark of a competently and professionally run court system. Somewhere along the line, the money for interpreters was frittered away by what passes for “management” at DOJ/EOIR. And, let’s not even think about the waste of money on absurd “Immigration Judge Dashboards” while the two decades old overwhelming need for a functional nationwide e-filing system goes unmet.
Right now, Congress is paralyzed. When are the Article III Courts going to wake up, get some backbone, and enforce the U.S. Constitution by putting an end to this so-called “court system” run by prosecutors that provides not even a semblance of fair and impartial (and at least minimally competent) adjudication? No more “Clown Court!”🤡
Federal Agencies Have Been Sending Employees Links To White Nationalist And Conspiracy Websites For Months
A BuzzFeed News investigation found that an arm of the Justice Department and the Department of Labor have shared stories from VDare, a white nationalist publication, with federal employees on multiple occasions over the last two years.
Hamed Aleaziz
BuzzFeed News Reporter
Ryan Mac
BuzzFeed News Reporter
Jeremy Singer-Vine
BuzzFeed News Reporter
Posted on August 23, 2019, at 7:15 p.m. ET
TwitterTweet
FacebookShare
CopyCopy
Leah Millis / Reuters
U.S. Attorney General William Barr
An arm of the Justice Department regularly sent summaries and links to articles from an online white nationalist publication over the last year, a BuzzFeed News investigation has found. In addition, similar newsletters sent to the Labor Department, ICE, HUD, and the Department of Homeland Security included links and content from hyperpartisan and conspiracy-oriented publishers.
In daily bulletins about media coverage for the department’s Executive Office for Immigration Review, which runs the nation’s immigration courts, a government contractor sometimes included links to VDare, an anti-Semitic and racist site whose editor who has claimed that American culture is under threat from nonwhite peoples. That contractor, a Dade City, Florida–based company called TechMIS, also compiles newsletters for other agencies, including the Department of Labor, US Immigration and Customs Enforcement, and the Office of Housing and Urban Development.
While these newsletters typically shared articles from local and mainstream national news outlets — including BuzzFeed News — they also regularly delivered content from partisan publications touting anti-immigration rhetoric and conspiracy theories. Among these publications: the Western Journal, a hyperpartisan publisher whose founder once questioned if then-presidential candidate Barack Obama was Muslim, and the Epoch Times, a newspaper associated with the Chinese Falun Gong movement and whose related media properties have backed QAnon, a conspiracy theory claiming a group of high-ranking officials known as the “Deep State” is subverting President Donald Trump’s goals.
On Thursday, BuzzFeed News reported that an immigration judges union sent a letter of complaint to EOIR for its inclusion in an August newsletter of a VDare blog post that attacked its members with anti-Semitic slurs. After publication of that story, an EOIR press secretary said that the Department of Justice “condemns Anti-Semitism in the strongest terms” and that the post should not have been included. A former senior DOJ official said that the email in question was “generated by a third-party vendor that utilizes keyword searches to produce news clippings for staff. It is not reviewed or approved by staff before it is transmitted.”
“That’s absolutely incorrect,” said TechMIS CEO Steven Mains, adding that EOIR was the most specific and particular of the company’s clients. The agency’s staff would review its work “down to misspellings” if there was anything wrong before sending, he said.
A cursory review of EOIR newsletters by BuzzFeed News found two more mentions of VDare articles; Mains confirmed those and noted there were four others, saying that VDare had been included on seven occasions out of about 20,000 links and articles sent from September 2018, when TechMIS’s relationship with the organization began.
“These discoveries are deeply disturbing,” said Becca Lewis, a research affiliate at Data & Society, who studies online radicalization. “Unfortunately, they mark a continuation of a long history in which government agencies, and particularly law enforcement agencies, have promoted and enforced white supremacist and racist agendas. This also unfortunately shows that many white supremacist and far-right publications that seem to be on the ‘fringes’ of society actually have huge mainstream influence and impact.”
“Many white supremacist and far-right publications that seem to be on the ‘fringes’ of society actually have huge mainstream influence and impact.”
On Friday afternoon, immigration court employees were informed that they would no longer receive the briefing and were told to subscribe to a DOJ-wide briefing if they were interested. This instruction was sent hours after BuzzFeed News reached out to DOJ officials for comment on the discovery of the additional VDare links.
“After review of our daily news aggregation emails, we have determined that the sampling was over inclusive and contained non-news sources,” EOIR spokesperson Kathryn Mattingly said in a statement. “EOIR will no longer be distributing a daily news briefing to its staff. EOIR strongly condemns anti-Semitism and white nationalism. Those hateful beliefs do not reflect the views of EOIR employees and the Department of Justice.”
She aded that EOIR would not be renewing its contract with TechMIS.
One immigration court employee told BuzzFeed News they perceived a shift in the news sources included in their emailed media briefings after Trump took office.
“It shows an increasing effort to politically charge the perspective of immigration judges who are being tasked with being neutral judges who apply the law,” said the employee, who was not authorized to speak on the matter publicly. “The administration has been taking steps to make the court a political weapon in various ways, some big, some small, this is just one example.”
BuzzFeed News found that the Department of Labor also linked to VDare in a February 2017 newsletter. Daily bulletins for EOIR, the Labor Department, ICE, HUD, and the Department of Homeland Security included links from the Western Journal and Epoch Times. Links to the New American — the magazine of the John Birch Society, a far-right group that pushed conspiracy theories that Obama wasn’t born in the US — were also in some of those newsletters.
Mains said that TechMIS uses a combination of automated systems and human editors to find stories around certain keywords that are relevant to each agency. He noted that his company was “not chartered in any way to censor the news” and had not heard of VDare until Thursday when he was asked by EOIR to no longer include the white nationalist site on digests moving forward.
“We presented the news — the entire universe of news,” he told BuzzFeed News on Friday. “Including a link did not mean there was in any way an endorsement of anything that was in there. There was stuff from the left, far left, right, far right.”
Among other publications included in the newsletters were the Washington Post, New York Times, HuffPost, the Intercept, Fox News, Breitbart News, Daily Caller, and Daily Wire. Of the fringe and conspiracy sites, the Epoch Times was by far cited the most number of times. BuzzFeed News found citations of the publication in more than 120 EOIR newsletters.
TechMIS / Via TechMIS
An EOIR newsletter from July 24 included this summary and link to a VDare post. The linked story includes a mention of a “zerg rush” of immigrants coming across the border.
ADVERTISEMENT
In one VDare post sent to EOIR employees in July, a blogger wrote that the “deep state” had scuttled previous efforts to enforce fast-track deportations. The post includes a mention of a “zerg rush” of immigrants coming across the border.
“We will see if Kevin McAleenan will implement this expansion. I think not. Sabotage is his specialty,” the piece concludes. The sentence links to posts about McAleenan that feature anti-trans comments about the acting DHS secretary, describing him as a “Ladyboy DACA, #DeepState operative” and “Tranny Kirstjen Nielsen,” a derogatory reference to the recently departed Homeland secretary.
In a story posted on New American and circulated to ICE staffers earlier this month, an author references an “invasion” of immigrants at the border. “Border patrol officials have said as much for months, but House and Senate Democrats, who hope to keep illegals coming in to swell the ranks of the party, have ignored them,” the post read.
Shawn Neudauer, a spokesperson for ICE, said the agency sends the clippings to a subset of its employees. The news briefing is delivered through an email service to the employees after the agency receives the brief from the contractor. He said the agency scans the briefings, which also include links to mainstream news outlets, as a way to understand how they are being written about online.
ADVERTISEMENT
“Most federal agencies monitor news and clipping services capture headlines from web-published stories,” he said in an email. “It says absolutely nothing about the value of the material received — only noting whatever source said whatever ‘thing’ — which happens to be fairly useful in combating false narratives about the critical work out special agents and officers do every day.”
When asked about publications including the Epoch Times, the New American, and the Western Journal, Mains said he had never heard of or read them. TechMIS, he said, had been working with government agencies since 2012, and while most newsletters are sent to agencies without review, the EOIR staff is more “hands on” than the rest.
“We’re here to react to the needs of the government,” Mains added.
In April, a VDare story about the “border asylum crisis” found its way into the EOIR newsletter. Railing on the current state of the practice of asylum in the US, it also excerpted part of another article that mentioned the “deep state” for open borders.
“Like I say, I hope somebody in the administration is reading this,” the author wrote.
Ryan Mac is a senior tech reporter for BuzzFeed News and is based in San Francisco.
Contact Ryan Mac at ryan.mac@buzzfeed.com.
Jeremy Singer-Vine is the data editor for the BuzzFeed News investigative unit and is based in New York. His secure PGP fingerprint is 9980 A273 CA46 DF22 4358 C196 CEFC 41B7 DEA9 06DC
Contact Jeremy Singer-Vine at jeremy.singer-vine@buzzfeed.com.
**********************************
Yup, no surprises here! Of course, they know what‘s in their “clips!“ If they didn’t, it would be negligent contract administration. And, it’s no coincidence that vile attacks on union leaders occur as Barr moves to “decertify” the Judges’ Union.Are they going to post material from Antifa. No way? Tweets from “The Squad” criticizing Trump? Not likely; that could be career threatening. DOJ’s dishonesty — and Barr’s cowardice — says it all!
BREAKING: STATEMENT BY IMMIGRATION JUDGES UNION ON MAJOR CHANGE ANNOUNCED TO IMMIGRATION COURTS
Statement by the Hon. Ashley Tabaddor, Pres. of the National Association of Immigration Law Judges
In an unprecedented attempt at agency overreach to dismantle the Immigration Court, the Department of Justice, Executive Office for Immigration Review (EOIR) today published a new interim rule, effective next Monday, which takes steps to dismantle the Immigration Court system. DOJ’s action ends any transparency and assurance of independent decision making over individual cases.
By collapsing the policymaking role with the adjudication role into a single individual, the Director of EOIR, an unconfirmed political appointee, the Immigration Court system has effectively been dismantled,” said Ashley Tabaddor, President of the National Association of Immigration Judges.
The new rule is a wolf in sheep’s clothing. While couched in bureaucratic language, the impact of this regulation is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators. The creation of a mini-Attorney General in the EOIR’s Director, who
is a political appointee, not confirmed by the Senate and currently not empowered to
adjudicate cases, will in effect abolish the separation of functions where the Attorney General’s duties as a law enforcement agent are distinct and separate from his adjudicatory duties. The unprecedented creation of an Office of Policy within EOIR under the Director’s authority, designed to formulate, coordinate, and implement the executive branch’s immigration law enforcement policies
combined with the Director’s new direct adjudicatory role over individual cases, removes any semblance of an independent, non-political court system which ensures due process rather than political expediency.
Furthermore, this bold-faced power-grab undermines oversight by the public through the established notice and comment procedure.
The National Association of Immigration Judges received notice of this action only today when the press was advised. We are currently studying the regulation carefully to provide a more detailed analysis in the days ahead.
Will Congress and the Article IIIs stand up to this grotesque abuse and prevent the DOJ from destroying democracy. Or, will impotent legislators and “go along to get along” Article III Judges continue to look the other way as a system driven by racist authoritarianism eats us up!
The Justice Department Sent Immigration Judges A White Nationalist Blog Post With Anti-Semitic Attacks
BuzzFeed News Reporter
Attorney General William Barr
An email sent from the Justice Department to all immigration court employees this week included a link to an article posted on a white nationalist website that “ directly attacks sitting immigration judges with racial and ethnically tinged slurs,” according to a letter sent by an immigration judges union and obtained by BuzzFeed News.
According to the National Association of Immigration Judges, the Justice Department’s Executive Office for Immigration Review (EOIR) sent court employees a link to a blog post from VDare, a white nationalist website, in its morning news briefing earlier this week that included anti-Semitic attacks on judges.
The briefings are sent to court employees every weekday and include links to various immigration news items. BuzzFeed News confirmed the link to a blog post was sent to immigration court employees Monday. The post detailed a recent move by the Justice Department to decertify the immigration judges union.
A letter Thursday from union chief Ashley Tabaddor to James McHenry, the director of the Justice Department’s EOIR, said the link to the VDare post angered many judges.
“The post features links and content that directly attacks sitting immigration judges with racial and ethnically tinged slurs and the label ‘Kritarch.’ The reference to Kritarch in a negative tone is deeply offensive and Anti-Semitic,” wrote Tabaddor. The VDare post includes pictures of judges with the term “kritarch” preceding their names.
Tabaddor said the term kritarchy is a reference to ancient Israel during a time of rule by a system of judges.
“VDare’s use of the term in a pejorative manner casts Jewish history in a negative light as an Anti-Semitic trope of Jews seeking power and control,” she wrote.
Tabaddor called on McHenry to take immediate action over the distribution of white nationalist content.
“Publication and dissemination of a white supremacist, anti-semitic website throughout the EOIR is antithetical to the goals and ideals of the Department of Justice,” she wrote. The court, Tabaddor wrote, should immediately withdraw the email and issue an apology to all immigration judges, including those mentioned in the post.
“Separately, EOIR should take all appropriate safety and security measures for all judges given the tone and tenor of this posting,” she wrote.
After publication of this article, a DOJ spokesperson told BuzzFeed News the email briefing was compiled by a contractor and should not have included a link to the VDare post.
“The daily EOIR morning news briefings are compiled by a contractor and the blog post should not have been included,” the spokesperson said.
EOIR Assistant Press Secretary Kathryn Mattingly told BuzzFeed News that “the daily EOIR morning news briefings are compiled by a contractor and the blog post should not have been included. The Department of Justice condemns Anti-Semitism in the strongest terms.”
A former senior DOJ official said that the email in question was “generated by a third-party vendor that utilizes keyword searches to produce news clippings for staff. It is not reviewed or approved by staff before it is transmitted.”
************************
So, it’s “mere coincidence” that the two Judges leading the NAIJ’s resistance are specifically targeted with slurs within a few days of the DOJ’s filing of a petition to “decertify” the NAIJ? Not credible!
Coincidence that a White Nationalist racist Administration biased against asylum seekersdistributes White Nationalist hate propaganda directed at Immigration Judges who stand up for Due Process? Unlikely!
No, starting with Trump & Sessions, this Administration has had a long-term love affair with White Supremacist hate groups. It’s no coincidence that acts of violence by White Nationalist domestic terrorists have increased under Trump. While the DOJ and DHS are busy reviving up baseless fear and loathing of foreigners, the real threats to our national security by White Nationalist domestic terrorists, and frankly by the Trump Administration itself, are left unaddressed and not so subtly encouraged.
There are lots of scummy characters involved in the latest assault on Due Process, fundamental fairness, and simple human decency by Trump’s DOJ.
But there is another major enabler at fault here: the unconstitutional and unethical placement of “judges” within a law enforcement agency has been painfully obvious for years.Yet, life tenured Federal Judges have looked the other way as clearly substandard adjudications have emanated from the Immigration Courts under the last three Administrations. Kind of a “who cares” attitude where rights of foreign nationals are involved.
Now, however, as in the Bush II Administration, U.S. citizen judges are being targeted for harassment and career derailment because of their views.
Trump and his henchmen have already made it clear that they will target anyone who fails to roll over for their White Nationalist agenda, judge or not. Myopic Federal Judges who fail to hold the Administration accountable for abuses and to put an end to the “EOIR travesty” might well find themselves on the receiving end of the Administration’s racist hate campaign at some point.Who will stand up for the rights of those unwilling to stand up for others?
Hon. Thomas Lister Retired Jackson County (WI) Circuit JudgeMe
A CONCEPTUAL PROPOSAL FOR AN AUXILIARY IMMIGRATION JUDICIARY
By
Paul Wickham Schmidt, Retired U.S. Immigraton Judge and Former Chair, U.S. Board Of Immigration Appeals
&
Thomas Lister, Retired Wisconsin Circuit Judge
Drawing on our judicial expertise gained over decades of working in both Federal and State judicial system, we respectfully set forth a concept for those working in the legislative, political, legal, and judicial systems to use and further develop to promote better, fairer, and more efficient judicial decision-making and to make better use of existing and future judicial resources both in and outside the U.S. Immigration Court system.
To save time, and since neither of us purports to be a legislative draftsperson, instead of submitting a “draft bill,” or the “outline” of such a bill, we advance an idea and the conceptual and practical justifications for it for your consideration and future use in drafting actual legislation.
No knowledgeable individual thinks the current dysfunctional U.S. Immigration Court system can continue without imploding. Just feeding more new, permanent Immigration Judges into an unfair and broken system actually is making things worse as well as outrageously wasting our taxpayer money at a time when deficits are skyrocketing.
All too many newly hired Immigration Judges appear to be neither the best qualified to be judges nor, even if qualified on paper, properly trained in how to deliver “full due process with efficiency” under the immigration laws and in strict compliance with the Due Process Clause of our Constitution.
On the other hand, many retired judges from other Federal and State systems have proven expertise and track records that would allow a competent judicial administrator (there are, to our knowledge, NONE of these currently in DOJ or EOIR) to determine if they are suitable for emergency service and how they could best be trained to effectively and efficiently use their skills as “Auxiliary Immigration Judges” to augment the current and future Immigration Judiciary.
Moreover, since most retired Federal and State judges already have adequate pensions or other means of support, asking them to volunteer to serve on the basis of limited compensation, or even just reimbursement for out of pocket expenses, would not be unreasonable.
We are offering this idea as a way in which those of us with lifetime legal and judicial expertise can use it to improve the delivery of justice in America; it is not intended as a means of enriching or offering alternative full-time employment to current retired judges, from any system.
To name just a few areas of “low hanging fruit,” we believe that:
• Most bonds;
• Initial “Master Calendars” (arraignments);
• Master Calendar scheduling for Individual Hearings;
• Motions Calendars;
• “Status” Calendars;
• Stipulated Final Order and Withdrawal Calendars;
• Individual Hearings on Cancellation of Removal for long-time lawful and unlawful residents;
• Uncontested Adjustments of Status and other types of equitable waivers; and
• Voluntary Departure as the sole application cases
have elements in common with most other types of judicial work.
Using Auxiliary Judges for such cases would allow those judges, from any Federal or State system, with sound work records, that is, those with impeccable reputations for fairness, professionalism, judicial efficiency, and impartiality, to handle these types of immigration adjudications with a modest amount of additional training and in close consultation and cooperation with the sitting Immigration Judges in a particular location.
In this respect, our emphasis would always be on aiding existing, sitting U.S. Immigration Judges, in cooperation with them and at their request, in the ways those sitting judges deem most helpful, fair, and effective.
It would never be on fulfilling inappropriate and unethical “production quotas,” numerical goals, or pandering to interests who want to use the judicial system to fulfill political or law enforcement objectives inconsistent with Due Process, fundamental fairness, or sound judicial administration.
We do not propose that “Auxiliary Judges” ever work directly for or under the supervision of non-judicial political officials as is now, disturbingly, the case in our Immigration Court System. Indeed, the current unwarranted attack on the independence and professionalism of Immigration Judges by unqualified political officials seeking to “decertify” the Immigration Judges’ professional association, the National Association of Immigration Judges, is a prime example of the type of counterproductive activity in which “Auxiliary Judges” should never be allowed to participate, in any way.
By contrast with the types of more straightforward judicial work described above as potential “low hanging fruit,” Asylum Cases, Withholding of Removal Cases, and applications for protection under the Convention Against Torture involve complex legal and factual issues. These are matters that should NOT be delegated to retired judges from other fields.
Indeed, one huge advantage of our proposal is that it would allow existing and future Immigration Judges to spend adequate time (a contested fair hearing on any of these aforementioned protection matters would take a well-trained judge 3-4 hours, minimum) on these types of cases and to receive more and better training on how to fairly and timely adjudicate, consistent with Constitutional Due Process, claims for protection under these laws and International Conventions.
Of course, there would be some administrative costs involved with training and maintaining a list of those willing to serve as “Auxiliary Immigration Judges.” But, they pale in relation to the costs of continuing to throw new permanent positions into a badly broken and dysfunctional system.
Indeed, some, such as the ABA Commission on Immigration, have observed that additional Immigration Judge hiring under current conditions has demonstrably been a waste of taxpayer money that has actually made the system worse and further impaired the delivery of Due Process to those vulnerable individuals whose lives depend on fair, professional, and efficient administration of Due Process and fundamental fairness in our Immigration Courts.
Sadly, we surmise that significant amounts of the “assembly line (in)justice” currently being encouraged and delivered to represented individuals in today’s Immigration Courts will eventually have to be re-adjudicated by orders of the Article III reviewing courts because of legal and/or factual errors. The only reason we don’t include unrepresented individuals in our equation is that these, unfortunately, are often “railroaded” out of our country without realistic access to the Article III Courts.
As lawyers with a combined 90 years of experience working in State and Federal justice systems, as prosecutors, judges, private litigators, educators, and government officials, at both the national and local level, we cannot in good conscience watch the continued deterioration of justice in the Immigration Courts while constructive ideas for improvements and efficiency and fairness are ignored or left unaddressed.
The concept of using retired State and Federal Judges outside the Immigration System to do certain types of cases to augment justice and relieve the incredible stress on full time Immigration Judges, in times of emergency or workload surges, without all the problems inherent in the current hiring of permanent judges by the DOJ, easily could be incorporated into one of the “Independent Article I Immigration Court” bills being advocated and advanced by groups such as the ABA, FBA, AILA, and the National Association of Immigration Judges (“NAIJ”).
The current system is dying before our eyes. We need to “pull out all the stops,” consider “every potential concept,” and utilize “positive professional creativity” (the antithesis of the negative energy devoted to cruel and counterproductive “gimmicks” and outright illegal actions) designed to enhance, rather than denigrate, Due Process, fundamental fairness, and judicial efficiency without sacrificing quality.
It is in that spirit that we respectfully request those involved in legislative reform of our Immigration Court system to consider incorporating our concept of an “Auxiliary Immigration Judiciary” into overall legislative proposals for positive reform of the Immigration Courts now being advanced by all of the leading voices in the field.
Trump Administration Seeks to Silence Federal Immigration Judges’ Union DOJ Files Legal Documents to End the Labor Rights of Judges
Retribution for Speaking Out and Exposing Problems in the Courts
Judges Make Bipartisan Appeal Asking Congress to Create an Independent Court Free From Political Influence
WASHINGTON — On Friday, August 9, the U.S. Department of Justice filed legal documents with the Federal Labor Relations Authority (FLRA) seeking to eliminate the rights of federal Immigration Judges (IJs) to be represented by a union. The petition filed by the administration asserts that IJs are “management officials” who formulate and advance policy.
“This is nothing more than a desperate attempt by the DOJ to evade transparency and accountability, and undermine the decisional independence of the nation’s 440 Immigration Judges,” said Judge Ashley Tabaddor, an Immigration Judge who hears cases in Los Angeles, speaking in her capacity as the president of the National Association of Immigration Judges (NAIJ). “We are trial court judges who make decisions on the basis of case specific facts and the nation’s immigration laws. We do not set policies, and we don’t manage staff,” she added.
The nation’s immigration courts are not part of the judicial branch of the government. The courts where immigration cases are heard are managed by the DOJ, allowing the
nation’s chief prosecutor, the U.S. Attorney General, oversight authority and the power to hire, fire, and control the judges who preside over immigration hearings.
Over the past two years, NAIJ has been highly critical of the administration’s moves to create a quota of 700 cases per year for every IJ and to pressure judges to process cases faster, irrespective of the law and the facts of the case. The NAIJ has also documented and publicly commented on how the government shutdown earlier this year added to the case backlog. Other issues raised by the NAIJ during the Trump years have included challenges to the Attorney General’s stripping IJs of needed docket management authority and depriving IJs of adequate support staff and resources such as interpreters, courtrooms, law clerks, and access to current technology. The move to decertify NAIJ is a clear effort to thwart criticism.
“It’s absurd that anyone would consider us managers,” said Tabaddor. “We don’t even have the authority to order pencils.”
This is not the first time that the DOJ has floated the theory that Immigration Judges are managers. Two decades ago, the DOJ made a similar attempt at decertifying the judges’ union. In 2000, the FLRA ruled at that time that IJs do not act as managers. Since that decision, the role and responsibilities of IJs has further been reinforced as trial judges rather than as managers. In the last two years, for example, the DOJ has eliminated any opportunity for IJs to serve in an advisory capacity to management officials and has repeatedly refused even to consult NAIJ on decisions affecting daily court operations. Additionally, the docket schedule of each IJ is micromanaged to advance law enforcement priorities rather than priorities or scheduling set by an individual judge.
NAIJ is affiliated with the International Federation of Professional and Technical Engineers, a much larger union that represents thousands of highly-educated federal employees including NASA rocket scientists, engineers employed by the U.S. Navy and the Army Corp of Engineers, and administrative law judges who hear cases involving Social Security claims. According to IFPTE’s president Paul Shearon, “This is nothing
more than union busting plain and simple, and part of a disturbing pattern. The White House has
signed a series of executive orders that limit the ability of federal unions to raise questions about abuses and inefficiencies, and they have tried to hinder a union’s ability to fully represent federal workers who are often stuck in a bureaucratic maze.” Added Shearon, “This administration doesn’t want to be held accountable, and they especially don’t want anyone looking over their shoulder on immigration issues.”
“It’s in the best interests of the American people for judges to hear cases based solely on the law and the facts presented, free from political considerations,” said Judge Tabaddor. “This is not a Democrat or Republican or a left, right issue.” NAIJ has long advocated for Immigration Judges to be placed in an independent agency, similar to the nation’s bankruptcy and tax courts, rather than under the control of the DOJ. In recent months, this move to create an independent agency to operate the immigration courts has been gaining traction on both sides of the aisle in Congress.
“We think many on Capitol Hill, from both parties, will oppose this effort to mute the nation’s Immigration Judges,” said Tabaddor. “When Congress returns in September, we will redouble our efforts to maintain judicial independence and due process through the creation of an independent court. The DOJ’s actions, designed to silence judges and their union, further demonstrates why judges who hear immigration cases need to be placed in an independent agency. Our rallying cry as we make the rounds in the halls of Congress will be ‘remember August 9’.”
The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.
WASHINGTON, DC – On Friday, August 9, 2019, the U.S. Department of Justice (DOJ) petitioned the Federal Labor Relations Authority (FLRA) in an effort to strip immigration judges of their right to be represented by a union. In the petition, DOJ asserts that immigration judges should be considered “management officials” and therefore should be excluded from forming or joining labor unions. The National Association of Immigration Judges (NAIJ), the recognized collective bargaining representative of our nation’s immigration judges, deemed DOJ’s claim as “absurd” and said that DOJ’s actions are “designed to silence judges and their union.” Representatives Jerrold Nadler (D-NY) and Zoe Lofgren (D-CA) of the House Judiciary Committee also decried the move in a statement this week.
Benjamin Johnson, Executive Director of the American Immigration Lawyers Association (AILA) responded, “DOJ’s petition to decertify the NAIJ is an effort to suppress the voices of immigration judges, who have denounced DOJ efforts to strip their authority. Ironically, while the petition contends that immigration judges are ‘management officials,’ this Administration has made every effort to limit the judges’ independence, management, and authority – micromanaging dockets, limiting discretion in adjudication, and imposing strict performance quotas.
Congress must protect the sanctity of due process, efficiency, and fairness in the court system by exercising its oversight authority over these politically motivated actions of the DOJ. Oversight alone is not enough; these actions are only possible because DOJ has total control over the immigration court system. America can no longer afford to have a system that can be so easily manipulated. AILA urges Congress to pass legislation establishing an independent immigration court under Article I of the Constitution.”
Cite as AILA Doc. No. 19081591.
**********************************************
An outrageous waste of our taxpayer money, abuse of our legal system, and unlawful attempt to silence the Administration’s critics. Note that the ONLY U.S. Immigration Judges who have a right to “speak out” against the fraud, waste, and abuse of the system by the current Administration (in other words, to “speak truth”) are senior officials of the NAIJ.
The DOJ and EOIR have effectively “muzzled” the rest of the active Immigration Judges. They are not allowed to speak to the press. Under this Administration, they aren’t even allowed to participate in educational programs and seminars aimed at educating the public about practice before the Immigration Courts.
Yet, while treating the judges little better than well-paid but overworked clerks, the Department of Justice asserts, with a straight face, that they are “management officials.” Just what, one might ask, are they “managing?”
Moreover, since judges generally need support but little if any day to day “management” in a functioning system (I wonder how much time Chief Justice Roberts spends “managing” his colleagues or how much time any Chief Judge in a legitimate system spends “managing” his or her judicial colleagues), what’s the purpose of the bloated management structure in the “EOIR Tower” in Falls Church, VA?
The real needs of the Immigration Judges — more clerks, more time off the bench to prepare, more educational opportunities, better equipment, better courtrooms, less time spent on non-productive work like reporting progress on case quotas — remain unaddressed by what passes for “management” at today’s EOIR. The filing of this meritless “decertification petition” by EOIR appears to be yet another in the long series of disingenuous efforts by DOJ and EOIR to deflect attention from their own gross mismanagement of the Immigration Court system that has helped to create monumental, unprecedented backlogs even as more resources are thrown into the maelstrom.
A truly horrible system — essentially a “Rube Goldberg Contraption — that must be abolished by Congress and reinstituted as an independent Article I Court dedicated to delivering “Due Process with efficiency.”
Due Process forever; malicious incompetence never!
The Justice Department has moved to decertify the union of immigration judges, a maneuver that could muffle an organization whose members have sometimes been openly critical of the Trump administration’s immigration enforcement agenda.
The department filed a petition on Friday asking the Federal Labor Relations Authority to determine whether the union, the National Association of Immigration Judges, should have its certification revoked because its members are considered “management officials” ineligible to collectively organize, according to a Justice Department spokesman.
The move suggested escalating tensions between overwhelmed immigration judges desperate for greater resources and a Justice Department pushing them to quickly address a backlog of immigration cases.
“This is a misguided effort to minimize our impact,” said Judge Amiena Khan, vice president of the judges’ union, which has publicly criticized the use of a quota system in immigration court and other attempts to speed up proceedings.
“We serve as a check and balance on management prerogatives and that’s why they are doing this to us,” said Judge Khan.
Unlike other federal judges who are part of the judicial branch, immigration judges are appointed by the attorney general and are employees of the Justice Department. Though sitting judges are prohibited from speaking publicly about issues that could be considered political, representatives of the immigration judges’ union can speak publicly about Justice Department policies on behalf of its members.
This is not the first time an administration has challenged the organization. The Clinton administration also tried to decertify the immigration judges’ union, a move that the Federal Labor Relations Authority rejected, according to former immigration judges.
Both Judge Khan and the union president, Judge Ashley Tabaddor, have spoken out repeatedly against what they say is an attempt to turn immigration judges from neutral arbiters of the law to law enforcement agents enacting the White House’s policies. They have called for immigration judges to be independent of the Justice Department.
Last year, the union criticized the department’s quota system, which required immigration judges to complete 700 cases per year, as well as a move to bar judges from an administrative tool they had previously used to reduce their caseloads. The union says the focus on efficiency impedes judges’ ability to work through complicated cases and could affect the due process rights of immigrants in court.
Addressing some of the union’s concerns, the Justice Department has tried to tackle the backlog, which now totals more than 830,000 cases, by hiring more immigration judges. Judges appointed by President Trump now make up 43 percent of the nation’s immigration judges, a larger share than under any of his five predecessors, according to a recent analysis by The Associated Press. A large number of his appointees are former military or Immigration and Customs Enforcement lawyers, the analysis found.
But that hiring has not been accompanied by other necessary support, Judge Khan said.
“I can’t work alone, I am reliant on support staff,” said Judge Khan. “Right now there are two judges to one support staff person,” which has delayed the progress of cases despite the additional judges, she said.
The judges’ union plans to officially respond to the Justice Department’s petition once it receives official notification from the Federal Labor Relations Authority.
If the attempt to decertify the union is successful, it could leave judges without recourse for their already overwhelming workload, judges said.
“The union won’t be able to help judges with overall working conditions at a time when most all judges would tell you working conditions are worse now than they have ever been,” said Paul Schmidt, a former immigration judge.
Judge Khan called the Justice Department’s petition part of “a systematic attack on unions” representing federal employees under the Trump administration. Last year, Mr. Trump signed a series of executive orders that rolled back the workplace role of unions for at least two million federal workers and made it easier to fire them. The administration said the move would make the government more efficient.
The Justice Department’s recent petition will most likely prompt an investigation by the Federal Labor Relations Authority, according to a department spokesman.
Seems like the investigation ought to be into ethical violations and attempts to misuse Federal labor laws by Bill Barr. A substantially identical challenge to the NAIJ was soundly rejected by the same agency, the FLRA, back in the late 1990’s under the Clinton administration.
Since then, over the strong objection of the NAIJ, the status of Immigration Judges has been even farther reduced to that of glorified “deportation clerks.” The idea that individuals whose little remining discretion has been removed have somehow morphed into “management officials” is both totally absurd and a confirmation that so-called “management officials” in the Federal Government under the Trump Administration have nothing to manage.
Seems like this clear abuse of our legal system by Barr and his cronies should be a subject for investigation by the House Judiciary Committee and would warrant commencement of impeachment proceedings against arrogant, anti-American scofflaw Bill Barr. Not that Barr hasn’t already been found in contempt of Congress and the American people – he has. He’s a disgusting character – a disgrace to public service and the legal profession.
I suppose he will escape accountability in his lifetime. But, the “Jefferson Davis of the Justice Department” will certainly receive the judgement of history against him for his betrayal of his country and his racist, White Nationalist misconduct clothed in a thin veneer of undeserved credibility based on his success in the corporate legal world. If anything, that a sleazy and corrupt character like Barr could prosper in the world of “white shoe corporate law” is an indictment of that system and its total lack of values and ethical standards.
Meanwhile, it appears that the actions of the NAIJ have been successful in striking a nerve among the DOJ kakistocracy. As with the corrupt, inept, and racist-infested DHS, the current inability of the DOJ as an institution to stand up to Barr’s dishonesty, corruption, and lawless behavior certainly merits a reexamination of the role and structure of the DOJ down the line with an eye toward determining how an institution supposedly staffed with “officers of the court” could be so cowardly and inept when it comes to standing up against internal abuses and contempt for our Constitution.
In addition, the latest abuse of authority by Barr emphasizes the need for immediate removal of the Immigration Courts from Barr’s control and a reversal of the “Chevron doctrine” of “judicial task avoidance” that has granted the DOJ’s immigration kakistocracy clearly unwarranted and unjustified “deference.”
Finally, I pass along my favorite quip from one of my former colleagues about the exalted “management role” of today’s Immigration Judges: “I often say I am not even permitted to manage the pencils in my courtroom.”
While there is a certain type of “dark humor” in the actions of Barr and the other “malicious incompetents” in the Trump Administration, there is nothing funny about the innocent lives being lost or threatened by their actions or the damage that these “evil clowns” are inflicting on our Constitution and our instructions.
Questions are still swirling around the immigration raids that President Donald Trump said he launched over the weekend, but one thing is certain: Many immigrants caught in their net will be sent into a court system already crippled by a vast backlog of ca…
This is a national disaster of gargantuan proportions unfolding in plain sight every day. Yet, somehow it remains largely “below the radar screen.” Nobody except those of us (and a few conscientious reporters, like Julia) who truly understand the relationship of the intentionally broken and thoroughly trashed U.S. Immigration Courts to our overall justice system seems motivated to fix this disgraceful mockery of fundamental fairness and impartial decision-making.
This definitely has the real potential to “crash” the entire U.S. justice system. Under Trump, Barr, and the rest of the sycophants, the backlogs will keep growing exponentially until the Immigration Court system collapses, spewing forth one to two million backlogged cases into the laps of those same smug Article IIIs who are closing their eyes to the miscarriages of justice befalling others on their watch. I guess you can’t hear the tormented screams of the abused way up in the “ivory tower.”
Obviously, as proved over and over again during the past two years, the Trump Administration is without shame, incompetent, and beyond accountability.
However, Members of Congress and the Article III Judges could act tomorrow (yes, there are bills already drafted that nobody is seriously considering, and the multiple Due Process violations of our Constitution infecting every part of this corrupt system are patently obvious, even to my Georgetown Law students, let alone so-called “real” judges) to put an end to this nonsense that is literally killing folks and destroying innocent lives. They should be held fully accountable for their gross dereliction of duty and their mass failure to uphold their oaths of office.
On a cheerier note, here’s my favorite comment about Julia’s article from my good friend, colleage, and fellow blogger, retired Judge Jeffrey S. Chase:
[Retired Judge] Bob Vinikoor and I are quoted.The author, Julia Preston, actually first asked me “Is this Jeffrey Chase, the actor?”She had seen me perform in the play [Waterwell’s NY production of ‘The Courtroom’], and said I had sworn her in as a US citizen in the last scene, which, since she was born in Illinois, was something she had not previously experienced.
Hope your Actor’s Equity Card is in good standing, my friend!
Gabriel Thompson & Leonardo Santamaria in Topic Magazine:
“Your Judge Is Your Destiny”
Agnelis L. Reese has presided over more than 200 hearings during the past five years as an immigration judge. Unique among her peers, she has rejected every single case.
The Supreme Court set forth a generous view of asylum law — even a 10% chance of persecution is enough to qualify — in the 1987 case Cardoza-Fonseca v. INS, discussed in this article. Following the Supreme Court’s directive, the BIA in Matter of Mogharrabi adopted a generous “reasonable person” standard for asylum eligibility, assuring everyone that asylum could be granted “even where persecution is significantly less” than probable.
However, judges like Judge Agnelis Reese have a different idea: treat asylum as a “loophole” and abuse your power over individuals’ lives by looking for bogus ways to deny protection rather than grant it. As pointed out by this article, one of the “best” of these “legal gimmicks” is simply arbitrarily to decide not to believe anyone’s claim or to “nit-pick” memories in a way that would establish Judge Reese and others like her as “inherently not credible” if applied to them. Much like the Trump Administration as a whole.
However, this is about more than just one ill-qualified asylum judge. For 22 years, Judge Reese was allowed to abuse asylum seekers with her one-sided decision making. That spanned two entire Administrations, one of each party, and two partial ones. Yet the BIA, EOIR, the DOJ, and life-tenured Article III Court of Appeals Judges failed to intervene to force Judge Reese, and other like her, to either apply asylum law in the fair, reasonable, and generous manner it was intended or to find other jobs.
There are “other Judge Reeses” out there today screwing the most vulnerable among us with dishonest interpretations of asylum law and facts, particularly in the area of credibility and “nexus” to a “protected ground.” Now, however, instead of being “outliers,” they are the kinds of “shining example” judges who implement the Administration’s White Nationalist false narrative that all asylum seekers from all countries are “gaming the system” and ought to be rejected en masse, without fair and impartial adjudications, in some cases amounting to literately “death sentences” without anything approaching due process.
All this is going on right under the noses of life-tenured Article III Judges who are supposed to be enforcing Due Process and fundamental fairness by insuring that the Immigration Court system provides fair and impartial adjudications (it doesn’t), that the generous criteria set forth in INS v. Cardoza-Fonseca and Matter of Mogharrabi are not just given “lip service” but are actually applied in every case (they aren’t), that credibility determinations are based on the record as a whole and all relevant factors (they aren’t), and that “mixed motive” for acts of persecution is properly considered and applied (it isn’t).
Of course, Congress and to some extent the voters are to blame for the current disgraceful parody of justice in our Immigration Courts. But, careers like that of Judge Reese are proof that the Article III Courts are also failing to live up to their statutory, constitutional, and human obligations and thus have become part of the problem, rather than part of the solution.
I can only hope that some future legal historian will analyze in detail, naming names, the failure of the Article III Courts, up to and including the Supremes, to perform their functions with integrity and thereby to have prevented the legal, constitutional, and human tragedy and mockery of justice taking place every day in our broken Immigration Courts.
Unqualified, yet empowered, judges like Reese are a symptom, rather than the cause of, that broken system.
Just yesterday, four distinguished legal organizations sent a joint letter to Congress calling for the establishment of an independent U.S. Immigration Court in view of the demonstrated catastrophic failure of the current system to provide Due Process to asylum seekers and other migrants:
ABA signs joint letter to Congress on establishing an independent immigration court system
WASHINGTON, D.C., JULY 9, 2019 —The American Bar Association has joined with three other legal organizations to call on Congress to establish a separate immigration court system that is independent of the U.S. Department of Justice.
ABA President Bob Carlson, along with the presidents of the American Immigration Lawyers Association, the Federal Bar Association and the National Association of Immigration Judges, will send a joint letter to Congress on July 11 stating that immigration courts “cannot meet the standards which justice demands” because they are not truly independent. This issue is particularly crucial as immigration courts struggle with crisis-level backlogs of almost 900,000 cases.
Under the current arrangement, immigration courts are part of the U.S. Department of Justice, and the judges in those courts are answerable to the U.S. Attorney General, who is also the nation’s chief prosecutor.
In their joint letter to Congress, the four organizations note that this inherent conflict of interest means that immigration judges are “particularly vulnerable to political pressure and interference.” In addition to the structural issues, the letter said that problems have “resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner.”
The lack of independence in the immigration court system was also addressed in the ABA’s recent updated report, “Reforming the Immigration System.” In the report, the organization urged removing the immigration courts from DOJ to ensure they are given the independence they need to be fair, impartial arbiters.
A telephone media briefing on the letter will be held Thursday, July 11, at 1pm ET/10am PT immediately following submission of the letter to Congress.
Briefing speakers
· Wendy Wayne, Chair, American Bar Association Commission on Immigration
· Jeremy McKinney, Second Vice President, American Immigration Lawyers Association
· Hon. Denise Noonan Slavin, former Immigration Judge and President Emeritus of the National Association of Immigration Judges
· Elizabeth Stevens, Chair, Federal Bar Association Immigration Law Section
· Greg Chen, Director of Government Relations, American Immigration Lawyers Association (Moderator)
Contact twiseman@aila.org to receive dial-in information and the embargoed letter.
Trump administration ending in-person interpreters at immigrants’ first hearings
Tal Kopan, San Francisco Chronicle
WASHINGTON — The Trump administration is preparing to replace in-court interpreters at initial immigration court hearings with videos informing asylum seekers and other immigrants facing deportation of their rights, The Chronicle has learned.
The administration portrays the change as a cost-saving measure for an immigration court system bogged down under a growing backlog. But advocates for immigrants are concerned the new procedure could jeopardize their due-process rights, add confusion and potentially make the system less efficient by causing more of them to go underground or appeal cases.
The Justice Department informed the nation’s immigration judges of the change last month at a training session, multiple sources familiar with the situation told The Chronicle.
At issue are “master calendar” hearings where immigration judges meet with undocumented immigrants, usually dozens of them, in rapid succession to schedule their cases and to inform them of their rights. The quick sessions are intended mainly to be sure the immigrants understand what is happening and know when their next hearing will be and what steps they need to take in the interim.
Under the new plan, which the Justice Department told judges could be rolled out by mid-July, a video recorded in multiple languages would play informing immigrants of their rights and the course of the proceedings. But after that, if immigrants have questions, want to say something to the judge or if the judge wants to confirm they understand, no interpreter would be provided.
Many of the immigrants come from Central America, but collectively they speak a diverse range of indigenous languages and sometimes don’t know Spanish. Immigrants from all over the world also come before the court system, which is run by the Justice Department.
The shift would especially affect immigrants who do not have attorneys to explain proceedings. Many immigrants lack representation at the initial hearing, and legal services around the country say they are being stretched thin. The government does not provide attorneys.
Instead of turning to an in-court interpreter, judges would have to rely on any who happen to be in the building for other purposes, or call a telephone service for on-demand translation that judges say can be woefully inadequate or substantially delayed.
“It’s a disaster in the making,” one judge said, speaking on condition of anonymity because the person did not have Justice Department approval to talk publicly. “What if you have an individual that speaks an indigenous language and has no education and is completely illiterate? You think showing them a video is going to completely inform them of their rights? How are they supposed to ask questions of the judge?”
The Justice Department billed the move as a cost-saving measure. Sources familiar with the interpreter situation say there have been ongoing issues with the budget and the contract with the primary interpreter provider, leading the administration to encourage more use of the telephone service and look for other ways to keep costs down.
A Justice Department who was not authorized to speak on the record said the shift away from in-person interpretation was “part of an effort to be good stewards of (the department’s) limited resources.” The official said the direction to judges was not a policy change, but declined to elaborate.
The immigration judges union, the National Association of Immigration Judges, said the change was another in a line of steps the administration has taken to force judges to do more with fewer resources at the risk of fairness.
Asked to comment, union President Ashley Tabaddor, a judge in Los Angeles, said the Justice Department had not given enough notice for the union to raise objections or provide input on the change.
She dismissed budget concerns as a justification.
“Interpreter cost is not a surprise cost — it’s an integral part of every case,” Tabaddor said. “If they actually look at the courts as a real court, they would never be dismissive of the role of an interpreter. But the fact that we are here and have these budget shortfalls means they have prioritized the budget in a way that is dismissive of the integral role of the interpreters, and reflects the flaw of having the courts run by a law enforcement agency.”
The immigration courts have been overwhelmed for years with a burgeoning load that is now approaching 1 million cases. The judges association has advocated for the courts to be removed from the Justice Department and made an independent system.
The Trump administration has made a series of efforts it says are intended to speed up the process and avoid having hundreds of thousands of immigrants build lives in the U.S. while waiting to learn if they will be deported. Critics, including immigration lawyers and advocates and some judges, say many of the changes have actually undermined the system, confusing immigrants and creating grounds for lengthy appeals.
Some judges said it’s common at master calendar hearings for immigrants to misunderstand the advice to find a lawyer. Some conclude that means they should not return for their next hearing if they don’t have a lawyer. Failing to appear is grounds for a deportation order.
The system is “not an assembly line,” said Jeffrey Chase, a former immigration judge and former senior legal adviser to the immigration appeals court who now volunteers for organizations that provide legal assistance to immigrants. He said the master calendar is most immigrants’ first impression ever of a court system, and that a lack of interpreters and interaction with a judge could foster a sense of distrust.
“You’re dealing with people’s lives,” Chase said. “All kinds of crazy issues arise. Sometimes there’s a health issue, and you need to be able to communicate to find this stuff out.
“And also, people come in so afraid,” Chase said. “If they’re able to talk with the judge and realize, ‘This person is a human being and they’re able to work with me’ — being played a tape reinforces this feeling that, ‘I’m dealing with this deportation machine.’ ”
Chase said concerns about the cost and length of the process are legitimate, but he questioned the administration’s way of addressing them.
“You always hear the word ‘efficiency’ from this administration now, and it’s very infrequent that you hear ‘due process’ or ‘justice,’ ” Chase said. “There’s no longer concern about the balance. It’s totally efficiency-heavy these days, and I think it’s being decided by people who haven’t been in the court much and don’t understand the consequences.”
My suggestion: In the future, any legal claims involving Members of Congress or Article III Judges and any members of their immediate families should be tried only in U.S. Immigration Court. The opposing party should be given the ability to:
Select the judge;
Write or rewrite the rules governing the litigation;
Change any result with which they might disagree; and perhaps most important
The proceedings shall be conducted in a language that only the opposing party and the “judge” understand.
That way, these folks would be receiving the same type of “justice” under the Constitution that they are happy to inflict on individuals in today’s Immigration Courts. Seems fair to me.
fl-undocumented-minors 2 – Judge Denise Slavin, executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel
Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).
Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?
Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.
I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.
Judge Denise Slavin
I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.
I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.
I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.
Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?
Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.
As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.
I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.
Asylumist: What about lawyers who are bad actors, and who violate the rules?
Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.
Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?
Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.
As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.
Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.
Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?
Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.
As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.
Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?
Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.
Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.
The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.
In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.
Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.
Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?
Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.
As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.
Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.
The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.
These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.
Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.
The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.
Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.
Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?
Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.
The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.
Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.
Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.
Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.
The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.
Asylumist: How would it help if Immigration Courts became Article I courts?
Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.
There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.
If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.
Asylumist: Thank you for talking to me today.
Judge Slavin: Thank you
********************************************
We’ll said, Denise, my long-time friend and colleague!
As long as there is a DOJ and EOIR is part of it, there will be “Aimless Docket Reshuffling” and “Extreme Mission Failure” meaning that “guaranteeing fairness and Due Process for all” will be unachievable.
