Tag: OPPM

HON. JEFFREY CHASE RESPONDS TO CHIEF JUDGE KELLER’S OPPM: Continuances Promote Due Process — U.S. Immigration Judges Should Be Free To Exercise Discretion — Memo Fails To Recognize Dire Straits Of NGOs And Asylum Seekers Largely Caused By DOJ & EOIR’s Own Policies!

https://www.jeffreyschase.com/blog/2017/8/3/in-support-of-continuances

Jeffrey writes:

“The chief judge’s memo correctly states that “at least one continuance should be granted” in order to allow a respondent to obtain counsel.  However, the memo raises concerns about granting additional adjournments, “particularly when all respondents are initially provided a list of pro bono legal services…”  However, the memo fails to mention the strain the same backlog has put on the limited resources of the listed pro bono representatives.  Therefore, denying additional continuances will require more applicants to proceed without counsel.  At present, many cases pending before the courts involve asylum seekers (including minors) fleeing gang violence in Central America and Mexico.  Many of these claims are based on the claimants’ membership in a particular social group, a still-evolving area of the law.  BIA precedent requires an asylum applicant to “delineate and establish to the Immigration Judge any particular social group he claims.”  See Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009).  “Particular social group” is a term of art that a pro se applicant would not understand.  Furthermore, a knowledge of existing case law is essential in crafting a proposed social group to present to the immigration judge.  In other words, the denial of additional continuances to allow an asylum applicant to obtain representation in order to move a case along can be fatal to an individual’s chances for obtaining relief, and can further undermine the applicant’s chance of success on appeal.

Hopefully, judges will continue to consider all of the above in their application of the Chief Judge’s memo.”

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Read Jeffrey’s complete commentary at the link.

I agree entirely with Jeffrey that continuances play a critical role in maintaining due process.  I also agree that memos such as this OPPM show a total misunderstanding and lack of appreciation for the situation of NGOs — who are basically keeping the system afloat — and the due process need for counsel in asylum cases. See my comments from yesterday on the OPPM:

http://immigrationcourtside.com/2017/08/02/eoir-issues-oppm-on-continuances-apparent-attempt-to-shift-focus-away-from-politically-motivated-adr-that-is-causing-massive-backlogs/.

Contrary to the Chief Judge’s tone, problems caused by DOJ and EOIR management have basically tied the individual Immigration Judges’ hands in granting continuances. Let’s face it, after DOJ and EOIR arbitrarily “orbit” ready for trial non-detained cases for their own political goals, individual Immigration Judges lose both credibility and effective control of their dockets. How can a judge in good conscience deny most motions to continue when cases are intentionally left pending for years:  attorneys change, the law changes, country conditions change, witnesses change or become unavailable, and other forms of relief pop up.

Moreover, as pointed out by Jeffrey, rather than simplifying the system so that protection could be quickly granted in more straightforward cases, the BIA has intentionally made the process more complicated — to the extent that it is virtually impossible to imagine that any unrepresented asylum applicant could document a PSG case to the BIA’s hyper-technical specifications.

And, Congress also shares responsibility for the current untenable situation. During several relatively recent “contrived” Government shutdowns, the Immigration Court’s entire non-detained docket and the the vast majority of Immigration Judges who staffed them were determined to be “nonessential” and therefore “furloughed,” leaving active dockets “to rot.” Non-detained cases were cancelled en masse and the court system never really recovered. For all I know, some of those cases are still “off docket.”

Also, these actions sent a strong message that the politicos in both the Legislative and Executive branches neither respected the work of U.S. Immigration Judges nor considered it important. The “non-detained docket” basically became the “who cares docket.”

The Obama Administration then further aggravated the problem by unwisely (and without consulting “line” U.S. Immigration Judges) prioritizing new “Not Quite Ready For Prime Time” Southern Border cases over regularly scheduled non-detained cases, thus sending  the non-detained docket further into complete chaos: “Aimless Docket Reshuffling.” Now, the Trump Administration’s “gonzo, anything goes, show no judgement, exercise no prosecutorial discretion” regime is pushing the courts over the brink.

We need bipartisan legislation to get the U.S. Immigration Courts out of the DOJ and into an independent judicial structure where they can focus on providing high quality due process in an efficient, predictable, and systematic manner.

PWS

08-03-17

Related posts:

  1. TIME MAGGIE: DUE PROCESS TAKES ANOTHER HIT IN IMMIGRATION COURT WITH EOIR’S DISINGENUOUS MEMO DISCOURAGING CONTINUANCES IN IMMIGRATION COURT! — When Will The Article III Courts & Commentators Expose The REAL Fraud Being Fobbed Off On The Public By The Sessions DOJ & EOIR? — The DOJ Is Trying To Blame The “Champions Of Due Process” (Private Lawyers) For The “ADR” — Aimless Docket Reshuffling — That The DOJ Created And Actually Mandated— Hold The DOJ Fully Accountable For The Failure Of The U.S. Immigration Courts!
  2. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  3. GONZO’S WORLD: RECENT ARTICLES SHOW HOW SESSIONS’S SHOCKINGLY INAPPROPRIATE REMARKS TO NEW IMMIGRATION JUDGES VIOLATED EOIR CODE OF JUDICIAL ETHICS, SHOWED DISRESPECT FOR THE LAW, AND VIOLATED THE FUNDAMENTAL RULES OF GOOD IMMIGRATION JUDGING BY DIRECTING JUDGES NOT TO BE SYMPATHETIC TO REFUGEES! – TURNING REFUGEE LAW AND HISTORY ON ITS HEAD!
  4. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!

EOIR ISSUES “OPPM” ON CONTINUANCES — APPARENT ATTEMPT TO SHIFT FOCUS AWAY FROM POLITICALLY MOTIVATED “ADR” THAT IS CAUSING MASSIVE BACKLOGS!

Here is the text of the OPPM:

oppm_17-01

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My Comments:

  1. There are lots areas where U.S. Immigration Judges, particularly new ones, could use training. Applying the asylum standards of proof set forth in Cardoza-Fonseca and Mogharrabi, properly applying the presumption based on past persecution in 8 CFR 1208.13, adjudicating “other serious harm” claims, insuring that requests for corroboration are “reasonable,” making credibility determinations on the basis of the record as a whole and all relevant factors, and understanding and properly applying the complex concepts of “divisibility,” categorical approach,” and “modified categorical approach” in criminal-related cases immediately come to mind. Adjudicating motions to continue doesn’t jump out at me as an area where guidance is particularly necessary. In fact, I never really met an Immigration Judge who didn’t have a pretty good sense of what the criteria were for continuances.
  2. The OPPM blows by the real reason why the dockets are a mess: politically motivated “Aimless Docket Reshuffling” (“ADR”) caused by ever changing political priorities in Immigration Court. Shifting Immigration Judges from previously-scheduled “Merits Hearings” to “Master Calendars” for recently arrived aliens, detainees who needn’t be in detention, and juveniles, has resulted in perhaps hundreds of thousands of “ready for trial” cases being “orbited” to largely imaginary merits hearing dates years from now.
  3. The OPPM falsely suggests that Immigration Judges have control over their dockets. But, individual Immigration Judges were stripped of any real semblance of docket control years ago. That’s the major problem causing backlogs. It’s not uncommon for Immigration Judges to find themselves detailed to other courts or shifted to other priorities without any meaningful input and sometimes with minimal advance notice. Ask the many private attorneys in New York, Chicago, and other major locations who arrive at long-ago-scheduled merits hearing, witnesses in tow, only to find out the Immigration Judge has been “reassigned” without advance notice, and that their cases are likely to go back to Master Calendar again for assignment of yet another Merits Hearing date with another judge years in the future. And, given the documented inconsistencies in adjudication results, particularly in asylum cases, among U.S. Immigration Judges, don’t think that re-assignment to a “new” Immigration Judge is a “neutral” occurrence. In all too many cases, it’s “outcome determinative.”
  4. The OPPM falsely suggests that continuances are largely a “scheme” by private attorneys to “game the system.” Undoubtedly, respondents sometimes do benefit by delays — many of which are actually caused not by them but by the internal procedures of EOIR and DOJ. They just take advantage of that which the system at the administrative/political level of DOJ/EOIR offers them. But, there are probably just as many private attorneys who have been trying for years to get their clients’ cases to trial, only to be “stiffed” by the politicos ultimately in charge of the system. Individual Immigration Judges are more often than not merely the “bearers of bad news” over which they have no personal control (but do get some of the flack).
  5. The OPPM appears to be directed at overburdened, overworked, under-appreciated NGOs who have been “hosed around” by the politicos at DOJ and EOIR Headquarters. They have been forced to race to cover “new priority” cases at the border, in detention, or on accelerated dockets while back at the “home court” their non-detained “ready for trial” cases are being “orbited” to dockets years in the future. Moreover, it is well-known the there is a high rate of turnover among NGO and pro bono group attorneys. Therefore the DOJ/EOIR tactics are designed to “wear down” pro bono representatives, thus forcing individuals to abandon representation or go unrepresented. This, in turn, all but guarantees failure of their claims. Indeed, the recent NWIRP litigation has made it clear that DOJ and EOIR are willing to bend the existing regulations to threaten or penalize those trying to provide pro bono assistance. http://immigrationcourtside.com/2017/07/29/eoir-pro-bono-representation-u-s-district-judge-richard-m-jones-rips-eoirs-violation-of-1st-amendment-common-sense-nwirp-v-sessions-wd-wa/.
  6. The OPPM also falsely suggests that DHS only rarely asks for continuances. Not true! DHS has a steady stream of reasons for requesting continuances including such “administratively fixable” things as: lost or missing files, sick attorneys, shortage of staff, missing fingerprints, changing priorities, ongoing investigations, new charges of removability, training, details, need to review exhibits lost in the mail, etc. Moreover, as recently documented by TRAC, the Trump Administration’s abandonment of a sensible use of “prosecutorial discretion” to get low priority cases off the Immigration Court docket is compounding the backlog issue. Additionally, the reported DHS unwillingness to stipulate to issues and grants of relief has caused many cases that could have been completed at Master Calendar or on “short docket” to be set for 3-4 hour merits hearing blocks instead.
  7. Oh, and lets not forget that docket problems are also aggravated by the byzantine, glacial, yet one-sided hiring process for Immigration Judges developed and administered by DOJ largely in response to political abuse of the hiring system by the Bush-era DOJ. Additionally, DOJ & EOIR have failed to anticipate problems caused by predictable loss of experienced judges to retirement, and they have failed to fill the additional positions allocated by Congress in a timely fashion.
  8. NOTE TO REPORTERS IN THE AUDIENCE: Don’t be fooled or “taken in” by this smokescreen. Faced with exposure of chronic problems, it’s a “bureaucratic norm” within DOJ and EOIR, as well as a specialty of the Trump Administration, to attempt to shift attention and blame elsewhere. Don’t fall for it! The “real story” here is in the absolute mess that political meddling at the DOJ has made, and continues to make, out of sound docket management and due process in the U.S. Immigration Courts and the unwillingness and inability of the politicos to fix the problems they have created or aggravated. No OPPM or series of “administrative band aids” is going to fix this broken system. We need an Article I U.S. Immigration Court now!
  9. Other than that, I loved the OPPM.

PWS

08-02-17

Related posts:

  1. HON. JEFFREY CHASE RESPONDS TO CHIEF JUDGE KELLER’S OPPM: Continuances Promote Due Process — U.S. Immigration Judges Should Be Free To Exercise Discretion — Memo Fails To Recognize Dire Straits Of NGOs And Asylum Seekers Largely Caused By DOJ & EOIR’s Own Policies!
  2. MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!
  3. NEW EOIR MEMO ENCOURAGES IMMIGRATION JUDGES TO DUMP ON UNACCOMPANIED CHILDREN (“UACS”) – “When In Doubt, Kick ‘em Out” New Motto Of Gonzo’s “Captive Courts!” — We’ve Come A Long Way From “Guaranteeing Fairness And Due Process For All” In A Short Time!
  4. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!