Tag: Paul Wickham Schmidt

9th Circuit Reverses BIA, Says CAL Fleeing From A Police Officer Not A Categorical CIMT! — Ramirez-Contreras v. Sessions — Read My Mini-Essay “Hard Times In The Ivory Tower”

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/08/14-70452.pdf

Here is the summary prepared by the court staff:

“Immigration

The panel granted Ramirez-Contreras’s petition for review of the Board of Immigration Appeals’ decision concluding that his conviction for fleeing from a police officer under California Vehicle Code § 2800.2 is categorically a crime involving moral turpitude that rendered him statutorily ineligible for cancellation of removal.

In holding that Ramirez-Contreras’s conviction is not a crime of moral turpitude, the panel accorded minimal deference to the BIA’s decision due to flaws in its reasoning.

Applying the categorical approach, the panel viewed the least of the acts criminalized under California Vehicle Code § 2800.2, and concluded that an individual can be convicted under subsection (b) for eluding police while committing three traffic violations that cannot be characterized as “vile or depraved.” Therefore, the panel held that California Vehicle Code § 2800.2 is not a crime of moral turpitude because the conduct criminalized does not necessarily create the risk of harm that characterizes a crime of moral turpitude.

The panel also held that the modified categorical approach does not apply because the elements of California Vehicle Code § 2800.2 are clearly indivisible.”

Before: Mary M. Schroeder, Andre M. Davis,** and Mary H. Murguia, Circuit Judges.

Opinion by Judge Schroeder

** The Honorable Andre M. Davis, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

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

HARD TIMES IN THE IVORY TOWER

by Paul Wickham Schmidt

The BIA has been having a rough time lately on its rulings concerning both “aggravated felonies” and “crimes involving moral turpitude.” The BIA appears to take an “expansive” or “inclusive” approach to criminal removal statutes, while most courts, including the Supremes, seem to prefer a narrower approach that assumes the “least possible crime” and ameliorates some of the harshness of the INA’s removal provisions.

In my view, the BIA’s jurisprudence on criminal removal took a “downward turn” after Judge Lory D. Rosenberg was forced off the BIA by then Attorney General John Ashcroft around 2002. Judge Rosenberg’s dissents often set forth a “categorical” and “modified categorical” analysis that eventually proved to be more in line with that used by higher Federal Courts all the way up to the U.S. Supreme Court.

Since the “Ashcroft purge,” the BIA has visibly struggled to get on the same wavelength with the reviewing courts on analyzing criminal removal provisions. At the same time, the BIA’s own precedents have been remarkable for their lack of meaningful dissent and absence of any type of visible judicial dialogue and deliberation. Maybe that’s what happens when you try to build a “captive court” from the “inside out” rather than competitively selecting the very best Appellate Immigration Judges from different backgrounds whose  views span the entire “real world” of immigration jurisprudence.

Just another reason why it’s time to get the United States Immigration Courts (including the “Appellate Division” a/k/a/ the BIA) out of the Executive Branch and into an independent judicial structure. No other major court system in America is run the way DOJ/EOIR runs the Immigration Courts. And, that’s not good news for those seeking genuine due process within the immigration system.

PWS

06-09-17

Related posts:

  1. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  2. CONTINUING JUDICIAL EDUCATION FOR ARTICLE III JUDGES: “Kids In Cages” Ought To Be Displayed Outside Every Federal Courthouse & The Supremes So That “Robed Enablers” Can See The Results Of Their Abdication Of Constitutional Duties!
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  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!

UW Law Looking For Immigrant Justice Clinic Director!

http://jobs.hr.wisc.edu/cw/en-us/job/495278/immigrant-justice-clinic-director

Click the link for full details.  Great opportunity for a bilingual immigration attorney who wants to get into clinical teaching at a terrific school in a super city.  Unlike many of today’s law schools, UW Law is located on Bascom Hill in the “heart” of the Main Campus with a view of the Capitol dome! Madison has to be one of the best places to live in the US.

While the initial appointmeet is for one year, based on performance, creativity, and ability to inspire funding, the position has longer term potential!

And, as an extra bonus, if you get the job, I’ll drop by at some mutually convenient time and give your students a “guest lecture.” Preferably right before a Badger home football or basketball game!

Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this my way.

PWS

06-09-17

 

Related posts:

  1. “TERRIFIC TRIO” INSPIRES STUDENTS, FIGHTS FOR IMMIGRANT JUSTICE AT UVA LAW IMMIGRATION CLINIC — PLUS EXTRA BONUS: Go Back To School This Fall — Take My “One-Lecture” Class “Basic Asylum Law for Litigators” Right Here!
  2. MICHELLE BRANE @ WOMEN’S REFUGEE COMMISSION — “Why I March!”
  3. PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATON COURTS

 

Keynote Address by

 

Paul Wickham Schmidt

 

United States Immigration Judge (Retired)

 

LIGHT OF LIBERTY AWARDS

 

Pennsylvania Immigration Resource Center

 

Heritage Hills Golf Resort

 

York, PA

 

JUNE 7, 2016

 

  1. I. INTRODUCTION

 

 

Good evening. Thank you so much for inviting me to speak at this wonderful event. I’m honored to be here. The PIRC is a terrific organization that provides critical legal services to the most vulnerable during one of the most difficult periods in our recent history.

 

The York area has a well-established tradition of humanitarian generosity and support for the most needy that was highlighted during the Golden Venture episode and described in the book Snakehead. I learned today that PIRC was formed to respond to the needs of the Golden Venture detainees. The U.S. Immigration Court in York has one of the highest representation rates for detained individuals in the nation, over 50%.

 

By contrast, the Arlington Immigration Court, where I used to sit, and the Baltimore Immigration Court had detained representation rates of around 20% and 10% respectively. And, it’s even worse in other parts of the country.

 

Back in February, I had the pleasure of working with your amazing Executive Director, Mary Studzinski, at a group session directed at improving training for non-attorney representatives authorized to practice before the U.S. Immigration Courts and the Board of Immigration Appeals. We bonded instantly. That’s “human bonding” rather than “immigration bonding,” of course. Mary’s kinetic energy, practical knowledge, tremendous dedication, and incisive contributions to the group were simply stunning. I must admit, I thought she was the Managing Attorney of the organization until she explained her role to me. You are so fortunate to have of someone who cares so deeply about your mission leading you. Mary is just what America needs right now.

 

Speaking of what America needs, I of course want to be the first to congratulate the five extraordinary individuals and two groups we are honoring tonight with well-deserved “Light of Liberty” Awards. Your energy, knowledge, and willingness to give of yourselves to others is making a much needed positive difference in this community and in our world. Each of you is indeed changing the course of history for the better. And, I’m pleased to announce that I have bestowed on each of tonight’s award recipients the rank of “General” in the “New Due Process Army. “

 

And, of course, thanks again to our great sponsors, mentioned by Mary, for supporting PIRCV and tonight’s awards.

 

II. THE DUE PROCESS CRISIS IN IMMIGRATON COURT

 

As most of you in this room probably recognize, there is no “immigration crisis” in America today. What we have is a series of potentially solvable problems involving immigration that have been allowed to grow and fester by politicians and political officials over many years.

 

But, there is a real crisis involving immigration: the attack on due process in our U.S. Immigration Courts that have brought them to the brink of collapse. I’m going to tell you seven things impeding the delivery of due process in Immigration Court that should be of grave concern to you and to all other Americans who care about our justice system and our value of fundamental fairness.

 

First, political officials in the last three Administrations have hijacked the noble mission of the U.S. Immigration Courts. That vision, which I helped develop in the late 1990s, is to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.”

 

Instead, the Department of Justice’s ever-changing priorities, aimless docket reshuffling, and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. Obviously, it is past time for an independent U.S. Immigration Court to be established outside the Executive Branch.

 

Second, there simply are not enough pro bono and low bono attorneys and authorized representatives available to assist all the individuals who need representation in Immigration Court. As I mentioned, this problem is particularly acute in detention courts. We know that representation makes a huge difference. Represented individuals succeed at rates four to five times greater than unrepresented individuals.

 

There have been a number of studies documenting the substandard conditions in immigration detention, particularly those run by private contractors, which in some cases prove deadly or debilitating. Some of these studies have recommended that immigration detention be sharply reduced and that so-called “family detention” be discontinued immediately.

 

A rational response might have been to develop creative alternatives to detention, and to work closely with and support efforts to insure access to legal representation for all individuals in Removal Proceedings. Instead, the response of the current Administration has been to “double down” on detention, by promising to detain all undocumented arrivals and to create a new “American Gulag” of detention centers, most privately run, along our southern border, where access to attorneys and self-help resources is limited to non-existent.

 

Third, the Immigration Courts have an overwhelming caseload. Largely as a result of “aimless docket reshuffling” by Administrations of both parties, the courts’ backlog has now reached an astounding 600,000 cases, with no end in sight. Since 2009, the number of cases pending before the Immigration Courts has tripled, while court resources have languished.

 

The Administration’s detention priorities and essentially random DHS enforcement program are like running express trains at full throttle into an existing train wreck without any discernable plan for clearing the track!” You can read about it in my article in the latest edition of The Federal Lawyer.

 

Fourth, the immigration system relies far too much on detention. The theory is that detention, particularly under poor conditions with no access to lawyers, family, or friends, will “grind down individuals” so that they abandon their claims and take final orders or depart voluntarily. As they return to their countries and relate their unhappy experiences with the U.S. justice system, that supposedly will “deter” other individuals from coming.

 

Although there has been a downturn in border apprehensions since the Administration took office, there is little empirical evidence that such deterrence strategies will be effective in stopping undocumented migration in the long run. In any event, use of detention, as a primary deterrent for non-criminals who are asserting their statutory right to a hearing and their constitutional right to due process is highly inappropriate. Immigration detention is also expensive, and questions have been raised about the procedures used for awarding some of the contracts.

 

Fifth, we need an appellate court, the Board of Immigration Appeals, that functions like a real court not a high-volume service center. Over the past decade and one-half, the Board has taken an overly restrictive view of asylum law that fails to fulfill the generous requirements of the Supreme Court’s landmark decision in Cardoza-Fonseca and the Board’s own precedent in Matter of Mogharrabi. The Board has also failed to take a strong stand for respondents’ due process rights in Immigration Court.

 

Largely as a result of the Board’s failure to assert positive leadership, there is a tremendous discrepancy in asylum grant rates – so-called refugee roulette.” Overall grant rates have inexplicably been falling. Some courts such as Atlanta, Charlotte, and some other major non-detained courts have ludicrously low asylum grant rates, thereby suggesting a system skewed, perhaps intentionally, against asylum seekers. Perhaps not coincidentally, the Board has become totally “government-dominated” with no member appointed from the private sector this century.

 

Sixth, the DOJ selection process for Immigration Judges and BIA Members has become both incredibly ponderous and totally one-sided. According to a recent GAO study, it takes on the average nearly two years to fill an Immigration Judge position. No wonder there are scores of vacancies and an unmanageable backlog!

 

And, it’s not that the results of this glacial process produce a representative immigration judiciary. During the Obama Administration, approximately 88% of the Immigration Judge appointments came directly from government backgrounds. In other words, private sector expertise has been almost totally excluded from the 21st Century immigration judiciary.

 

Seventh, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

 

III. ACTION PLAN

 

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

 

So, do we abandon all hope? No, of course not!   Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, and those who have practiced before the Arlington Immigration Court.

           

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

           

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

          

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

 

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

 

Obviously, the PIRC is a fantastic way to contribute to assertively protecting the due process rights of migrants. Internships and JLC positions at the Immigration Courts are also ways for law students and recent law grads to contribute to due process while learning.

 

As mentioned earlier, Mary and I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, teachers, and others who are not lawyers but who can qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

 

Even if you are a lawyer not practicing immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

           

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

           

Another critical area for focus is funding of nonprofit community-based organizations, like PIRC, and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

 

Many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

 

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

 

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

 

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

 

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

IV. CONCLUSION

 

In conclusion, I have shared with you the U.S. Immigration Court’s noble due process vision and the ways it currently is being undermined and disregarded. I have also shared with you some of my ideas for effective court reforms that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!

            Thanks again for inviting me and for listening. Congratulations again to our award winners and newly commissioned Generals of the New Due Process Army.

 

(06-08-17)

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

Congratulations to these Light of Liberty Awards winners and newly commissioned Generals in the New Due Process Army:

ATTORNEY OF THE YEAR:

Rosina Stambaugh, Esquire

LAW FIRM OF THE YEAR

Asylum & Human Rights Clinic, University of Connecticut School of Law

CONTINUING COMMITMENT TO JUSTICE INDIVIDUAL:

Professor Jill Family,

Widener University Delaware Law School

INTERPRETER OF THE YEAR

Rosalyn Groff

COMMUNITY VOLUNTEER OF THE YEAR:

Dr. Anne Middaugh

CONTINUING COMMITMENT TO JUSTICE ORGANIZATION:

Philadelphia Bar Foundation

VOICE OF COURAGE:

Josia Nunes

 

Out in the audience was superstar lawyer/social worker Hannah Cartwright, a “Charter Member” of the New Due Process Army, now on the legal staff at the PIRC. Hanna, a distinguished Catholic University Law grad, served as a Legal Intern at the Arlington Immigration Court and a Judicial Law Clerk at the Philadelphia Immigration Court.

Pictures and other news from this wonderful event to follow.

PWS

06-08-17

 

 

 

 

 

 

 

Related posts:

  1. 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!
  2. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  3. CONTINUING JUDICIAL EDUCATION FOR ARTICLE III JUDGES: “Kids In Cages” Ought To Be Displayed Outside Every Federal Courthouse & The Supremes So That “Robed Enablers” Can See The Results Of Their Abdication Of Constitutional Duties!
  4. JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!

DUE PROCESS MOCKERY: DOJ’s Secret Gulag Courts Undermine Fairness — Individuals Duressed Into Surrendering Rights!

https://www.theguardian.com/us-news/2017/jun/07/donald-trump-immigration-court-deportation-lasalle?CMP=Share_iOSApp_Othe

 reports in The Guardian:

“Behind two rows of high fencing and winding coils of razor wire, and surrounded by thick forest in central Louisiana, hundreds of miles from the nearest major city, stands a newly created court the Trump administration hopes will fast-track the removal of undocumented immigrants.

Hearings take place in five poky courtrooms behind reinforced grey doors where the public benches, scratched with graffiti, are completely empty. There is no natural light. The hallways are lined with detainees in yellow jumpsuits awaiting their turn before a judge. The five sitting judges were quietly flown in by the US justice department from cities across the United States and will be rotated again within two weeks.

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This is the LaSalle detention facility that, since March this year, has been holding removal proceedings for hundreds of detained migrants in courtrooms adjoining a private detention center, which incarcerates more than 1,100 men and women and has the highest number of prisoner deaths of any in America over the past two years.

The new setup is part of Donald Trump’s attempts to ramp up deportations by vastly expanding the arrest powers of federal immigration enforcement and prioritising more vulnerable groups of detained migrants in new court locations around the country. It has received little scrutiny since its introduction following a presidential order in January, and the Guardian is the first news organisation to observe proceedings here.

Inside courtroom No 2, during proceedings last Wednesday, Judge Arwen Swink, who usually sits in San Francisco, presided over a crowded morning docket. In an indication of the hastily arranged nature of the setup, the judge’s name was printed out on a piece of paper and stuck to a door behind her, the courtroom also functioning as a makeshift office, complete with a photocopier and in-trays attached to the wall.

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Marcos Ramirez Jr, sat alone before the judge, listening through a headset as a translator interpreted proceedings in Spanish. The court heard how the Guatemalan national had lived in America for almost four decades after crossing the border into the US in 1980. He had been with his wife in Alabama for 15 years and had no criminal history.

In April, Ramirez was apprehended by law enforcement for allegedly driving recklessly and without a license. The charges were enough to see him transferred to immigration detention. At a hearing earlier in May, he had been offered a bond of $7,000 but told the court on Wednesday he had no ability to pay it.

“It has been two weeks since I heard from my wife,” he said, his head cradled in his hands. “She has stage three cancer.” Ramirez had no idea if she was now in hospital or, by extension, whether she was alive or dead.

As things stood, without the money to pay for his bond, he would remain in detention until his full hearing, known as a merits hearing, where his chance of being ordered to be deported was much higher than if he had been released on bond and gone to trial at another non-detained court, according to studies of official data.

This building is operated by the Department of Homeland Security (DHS) and had never functioned as a court. Before March, the five rooms were used for video conferencing, allowing detainees to appear via video-link in preliminary hearings at an established immigration court (that now technically administers the court at LaSalle) in the small city of Oakdale 90 miles away.

A court room at the LaSalle detention facility.
A court room at the LaSalle detention facility. Photograph: Whiteconst.com

Lawyers and advocates say the new system increases the risk of due-process violations as cases move more rapidly through the system, at a remote venue that already has the lowest rate of legal representation for detainees in the US. The union representing immigration judges, meanwhile, argues that reassigning judges from around the US where courts are already chronically overburdened is simply a waste of resources.

The justice department’s executive office for immigration review (EOIR), which administers America’s immigration courts, declined to respond to a list of detailed questions about the new court.

The Guardian was also prevented from viewing the LaSalle court’s public docket, which had previously been printed out and displayed outside the courtrooms but removed on the day of the visit. The Guardian was instructed by a court officer, employed by private security firm GEO Group, that court clerks and administrative staff – public employees – would not take any questions for clarification. This meant that basic fact-checking, including the spelling of detainees’ names, could not always be completed.

Deportation without representation

In a number of ways, Ramirez’s story was typical of many of the 43 cases brought before judges that day.

Numerous hearings observed by the Guardian last Wednesday involved people who had been apprehended by law enforcement after allegedly committing minor traffic offenses. One individual, Osmani Radiya, appearing before Judge Patrick Savage, also on detail from San Francisco, had been arrested after accidentally reversing into a parked van allegedly under the influence. The father of three, two of his children US citizens, had no driver’s license or insurance documents and wound up in detention facing deportation.

Another, 21-year-old Diego Garcia, who appeared before Judge Margaret McManus (detailed from New York), had been picked up in Arkansas after driving without a license and providing a false name to police. “I’d like to apologise for what happened, it won’t happen again,” Garcia told the court. Both men were granted bond.

In the Trump administration’s first 100 days the number of immigration arrests have soared, with the sharpest increase among those with no criminal record. The LaSalle detention facility, which holds both men and women, serves as a major hub for arrestees from many of the southern states.

Paul Scott, an immigration attorney who has represented clients detained at LaSalle for nine years, characterised the new system as “taking a large mallet and trying to hit a small nail”.

“This fast-track system is now being backed up by less dangerous people who actually might have stronger cases [for relief from removal],” he said. “It’s not a very smart or precise plan.”

While the administration may have ramped up arrests, the number of people it has actually been able to deport has remained relatively consistent with the past two years of the Obama administration.

But Ramirez’s case was also typical in another manner: he had no lawyer representing him.”

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

Read the complete report at the link.

This should be a wake-up call for all Americans who care about Constitutional due process, fundamental fairness, and national values. American’s largest Court System is held “captive” within the U.S. Department of Justice.

In reading the testimony of former FBI Director Comey today,  I was struck by his double-talk about an “independent” Department of Justice and FBI. As pointed out by Allen Dershowitz and others, the U.S. Constitution does not provide for an independent DOJ. Perhaps it should have, but it doesn’t. As an Executive Branch Agency, the DOJ is, and always has been, subject to political shenanigans. No “court system” operating within the DOJ can possibly provide fairness and due process in all cases.

Moreover, the DOJ has clearly established over the past 16 years its total administrative incompetence to run a high volume court system. 600,000 pending cases and not a clue of how they might actually be completed consistent with due process! Indeed, the officials at the DOJ who are “pulling the strings” of the Immigration Court don’t have the faintest idea of what happens at the “retail level” or how to operate a fair and efficient court system.

The Trump Administration’s misuse of the U.S. Immigration Courts to deny, rather than protect, due process is just the disgraceful end product of a “built to fail system.” America needs an independent U.S. Immigration Court.

Thanks to Nolan Rappaport for sending this my way.

PWS

06-08-17

 

 

 

Related posts:

  1. DUE PROCESS DENIED! — NIJC REPORT FINDS THAT DHS DETENTION IN OBSCURE LOCATIONS DEPRIVES MIGRANTS OF MEANINGFUL ACCESS TO COUNSEL! — This Is What Happens When We Enable The “American Gulag!”
  2. ICE DETENTION ABUSES INDIVIDUALS – IS THERE A COVER UP? – “The problem with these places is that they dehumanize you so much. They hinder everything. They screw your life.” – Time For Some Oversight & Accountability!
  3. TAKE 5 MINUTES TO LOOK INSIDE THE “AMERICAN GULAG” OF CIVIL IMMIGRATION DETENTION BEING PROMOTED BY TRUMP, SESSIONS, KELLY & THE HOUSE GOP!
  4. CHICAGO TRIBUNE: Asylum Experts Michelle Mendez & Swapna Reddy Challenge Gonzo’s Bogus Apocalyptic Smear Of U.S. Asylum Applicants!

BREAKING: NPR’s Beth Fertig Exposes Administration’s Immigration Court Due Process Disaster — Taxpayers Billed For Sending Judges To Hustle Detainees Through Court Without Lawyers, Leaving More Represented Cases At Home To Rot! — Backlogs Mushroom As Administration Plays Games With Human Lives!

http://www.wnyc.org/story/missing-new-york-immigration-judges/

Fertig reports:

“In the middle of May, paper notices were posted on the walls of the federal building in lower Manhattan announcing the absence of several immigration judges. Some were out for a week or two, while others were away for six weeks. The flyers said their cases would be rescheduled.

The Executive Office for Immigration Review, which runs the immigration courts, would not comment on the judges’ whereabouts. It cited the confidentiality of personnel matters. But after WNYC asked about these missing judges, many of the paper notices were taken off the walls of the 12th and 14th floors, where hearings are held in small courtrooms.

It’s no secret that President Donald Trump’s administration has been redeploying judges to detention centers near the southern border to speed up the processing of cases. After contacting numerous immigration attorneys down south, as well as retired judges and others, WNYC was able to crowdsource the judges’ locations. At least eight of New York City’s 29 immigration judges had been sent to Texas and Louisiana since March to conduct hearings in person or by video. Six judges were out for different parts of the month of May, alone.

“NYC

The federal building is home to the nation’s busiest immigration court, with a backlog of 80,000 cases. By redeploying so many judges in such a short period of time, immigration lawyers fear the delays will grow even longer. Meanwhile, attorneys near the border question whether these extra judges are even necessary.

Among other matters, judges at detention courts are supposed to hear cases involving people who crossed the border illegally. Yet those numbers have declined since Trump took office. That’s why local attorneys are cynical about the surge.

“I don’t really think that they need all these judges,” said Ken Mayeaux, an immigration lawyer in Baton Rouge.

Mayeaux said what’s really needed there are more immigration attorneys. As federal agents arrest an increasing number of immigrants who are already in the U.S. without legal status, they’re sending them to southern detention centers that are pretty isolated. The ones in Oakdale and Jena, Louisiana, are hours west of Baton Rouge and New Orleans, where the vast majority of the state’s immigration advocates are concentrated, said Mayreaux.

“To ramp things up in one of the places that has the lowest representation rates in the United States, that’s a due process disaster,” he said.

Data from the Transactional Records Access Clearinghouse at Syracuse University confirms that immigrants may only wait a couple of months for their deportation case to be completed in these detention centers near the border. But in New York, the wait to see an immigration judge is 2.4 years.

So why move judges from a clogged and busy court system in New York to the border region, where immigration cases are already moving swiftly?

“In this particular instance, it’s a virtuous circle from the perspective of the administration,” explained Andrew Arthur, a former immigration judge.

Arthur is a resident fellow at the Center for Immigration Studies. It’s a think tank that wants to limit immigration, though it’s been branded a hate group by the Southern Poverty Law Center. During the Obama administration, Arthur said too many immigrants were let out of detention and waited years for their cases to be heard. He said moving more judges to the border will prevent that from happening.

“Because the quicker that you hear the cases the less likely that an individual is to be released,” Arthur said. “Therefore the less likely another group of individuals are to attempt to make the journey to the United States.”

Another former immigration judge, Paul Wickham Schmidt, said the Obama administration tried something similar by fast-tracking the cases of Central American migrants in 2014. But he said it wound up scrambling the judges’ dockets and was counterproductive. He was redeployed from his home court in Virginia and estimates he had to reschedule a hundred cases in a week.

“Nobody cares what’s happening on the home docket,” he said. “It’s all about showing presence on the border.”

Not all judges assigned to the border are physically present. Mana Yegani, an immigration lawyer in Houston, said she’s seen several judges — including a few from New York — at a detention center where cases are done by video teleconference.

“We never see the prosecutor’s face, it’s just a voice in the background,” she explained. “It’s just not a fair process for our clients and I don’t think the judges can be efficient the way they’re supposed to. They take an oath to be fair and to uphold the Constitution and due process, and I think the way the system is set up it really hinders that.”

A new audit of the immigration courts by the Government Accountability Office questioned whether video teleconferences have an impact on outcomes and said more data should be collected.

Some attorneys believe the reassignments are temporary to see if border crossings continue to ebb. The Executive Officer for Immigration Review won’t comment on that, but spokesman John Martin said the agency will hire 50 new judges and “plans to continue to advertise and fill positions nationwide for immigration judges and supporting staff.”

In the meantime, there’s no question that shifting judges away from New York is having an impact on real people.”

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

Read Beth’s entire article, including the story of one “real” asylum applicant waiting patiently for a hearing that almost didn’t happen.

The due process farce continues, at taxpayer expense, while the U.S. Immigration Courts are being treated as an enforcement arm of the DHS. Aimless Docket Reshuffling (“ADR”) denies due process at both the “sending courts” and “receiving courts.” When, if ever, will Congress or the Federal Courts step in and put an end to this travesty of justice and mockery of our constitutional requirement for due process! In the meantime, what’s happening in the Immigration Courts is a continuing national disgrace.

PWS

06-06-17

 

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  3. BETH FERTIG AT NPR: “ADR” Moves Into High Gear, Devastating U.S. Immigration Courts, As Half Of NY Immigration Court “Goes Dark” — U.S. Immigration Judges Become Adjuncts Of DHS Border Enforcement Program — Dockets At Interior Courts “Orbited Into Never-Never Land!”
  4. MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!

NYT: Trump, Sessions Split Brewing? — Apparently The Donald Expected AG To Be Complete Toady — Unpleasantly Suprised With Independence!

https://www.nytimes.com/2017/06/05/us/politics/trump-discontent-attorney-general-jeff-sessions.html?emc=edit_nn_20170606&nl=morning-briefing&nlid=79213886&te=1&_r=0

Peter Baker & Maggie Haberman report:
“WASHINGTON — Few Republicans were quicker to embrace President Trump’s campaign last year than Jeff Sessions, and his reward was one of the most prestigious jobs in America. But more than four months into his presidency, Mr. Trump has grown sour on Mr. Sessions, now his attorney general, blaming him for various troubles that have plagued the White House.

The discontent was on display on Monday in a series of stark early-morning postings on Twitter in which the president faulted his own Justice Department for its defense of his travel ban on visitors from certain predominantly Muslim countries. Mr. Trump accused Mr. Sessions’s department of devising a “politically correct” version of the ban — as if the president had nothing to do with it.

In private, the president’s exasperation has been even sharper. He has intermittently fumed for months over Mr. Sessions’s decision to recuse himself from the investigation into Russian meddling in last year’s election, according to people close to Mr. Trump who insisted on anonymity to describe internal conversations. In Mr. Trump’s view, they said, it was that recusal that eventually led to the appointment of a special counsel who took over the investigation.

Behind-the-scenes frustration would not be unprecedented in the Oval Office. Other presidents have become estranged from the Justice Department over time, notably President Bill Clinton, who bristled at Attorney General Janet Reno’s decisions to authorize investigations into him and his administration, among other things. But Mr. Trump’s tweets on Monday made his feelings evident for all to see and raised questions about how he is managing his own administration.

“They wholly undercut the idea that there is some rational process behind the president’s decisions,” said Walter E. Dellinger, who served as acting solicitor general under Mr. Clinton. “I believe it is unprecedented for a president to publicly chastise his own Justice Department.”

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

Read the complete article at the link.

I certainly never would have accused Trump of rationality.

It seems it doesn’t take much to go from hero to goat with Trump — another sign of an unbalanced mind at the helm of our country. I’ve been a frequent critic of Jeff Sessions for his anti-immigrant views, white nationalist associations, and totally “gonzo” views and actions on civil rights and immigration enforcement. But, it sounds like he has been trying to do the right thing in this situation and offering the President some wise counsel.  I guess there is no surer way of getting on Trump’s “hit list” than to act with some rationality and integrity.

It’s still a problem if Sessions isn’t able to control Trump’s public behavior in litigation. The head of a law firm can’t stand by and let a client, even the big one, publicly abuse and undermine his or her partners and associates.

In private practice, you sometimes have to “fire” an unruly client. In Government, you can’t fire the President, but you can “take a walk” and let folks know why you are doing it. Ultimately, Sessions (and Rosenstein, and probably Associate AG Rachel Brand) might have to decide whether to be loyal to the President or to the Department of Justice and the integrity of our justice system.

Shouldn’t really be much of a dilemma. After all, no politico expects to serve indefinitely, and each member of this trio should be readily employable in the private sector.

PWS

06-06-17

 

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. GONZO’S WORLD: “MINISTRY OF INJUSTICE” — How Gonzo Is Successfully Draining Justice From The Department Of Justice
  3. MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!
  4. 🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 

“IMMIGRATION COURTS — RECLAIMING THE VISION” — Read My Article In The Latest Federal Bar News!

Here is the link:

immigration courts

And, here’s an excerpt:

“Our immigration courts are going through an existential crisis that threatens the very foundations of our American justice system. I have often spoken about my dismay that the noble due process vision of our immigration courts has been derailed. What can be done to get it back on track?

First, and foremost, the immigration courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the Department of Justice—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the American Bar Association and the Federal Bar Association, would be best.

Clearly, the due process focus has been lost when officials outside the Executive Office for Immigration Review have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle (the Central American countries of El Salvador, Honduras, and Guatemala) who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized immigration judges.”

I encourage you to read the entire article.

Additionally, this entire issue of The Federal Lawyer is devoted to Immigration Law. Kudos to Judge Lawrence O. Burman of the Arlington Immigration Court and Judge Robin Feder of the Boston Immigration court for their key roles in FBA leadership and for inspiring this effort. There are four other great articles that will help you understand what is happening today in this most important area. Check them all out at this link:

http://www.fedbar.org/magazine.html

Finally, if you aren’t currently a member of the Federal Bar Association (“FBA”), please join the FBA and the Immigration Section today! The price is very reasonable, you get access to The Green Card (the Immigration Section newsletter, Edited by Judge Burman) and some other great educational materials, and you support the effort for due process, collegiality, and badly needed U.S. Immigration Court Reform, which the FBA advocates. The current “powers that be” are not going to fix the broken U.S. Immigration Court System without outside involvement and, ultimately, Congressional action. This won’t happen by itself.  So, if like me, you are appalled and dismayed by what has happened to due process in our U.S. Immigration Court system, now is the time to get involved and work to change it!

Also, check out my previous blogs on the recent FBA Immigration Seminar in Denver.

http://wp.me/p8eeJm-O1

http://wp.me/p8eeJm-Oa

http://wp.me/p8eeJm-OU

http://wp.me/p8eeJm-P4

PWS

06-05-17

 

 

 

 

Related posts:

  1. JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!
  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. GONZO’S WORLD: THE HILL: Professor Lindsay Muir Harris — Using REAL Data & Facts — Rips Apart Sessions’s “Ignorant” (& TOTALLY INAPPROPRIATE) Anti-Asylum Speech To EOIR!
  4. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!

“AIMLESS DOCKET RESHUFFLING” (“ADR”) IN NEW YORK — NPR’s Beth Fertig Exposes Due Process/Management Abuses By Obama & Trump Administrations!

http://www.wnyc.org/story/why-new-yorks-immigration-court-even-busier-fewer-judges-under-trump/

Fertig reports:

“There are 29 immigration judges assigned to court rooms in the Federal Building in Lower Manhattan. But as the number of pending cases grew from about 70,000 in January to nearly 80,000 this spring, more and more people have been coming to court only to discover they don’t have judges.

On a Tuesday morning in May, Alin Guifarro expected to attend a hearing with his 18-year-old son, Jose David Rodriguez. The teen came from Honduras last year to join his father and is trying to get legal status in the U.S.

But when they went to the 12th floor and scanned the long list of names with appearances scheduled that day, Guifarro saw his son’s case wasn’t assigned to a judge. Confused, he went to the clerk’s office and was told he would eventually get a letter in the mail about a new court date.

Guifarro was frustrated. “I came over here driving 2 ½ hours for nothing,” he said, referring to his journey from his home in Mastic, Long Island.

This father and son aren’t the only ones whose immigration cases have been postponed lately.

“In the last two months this has happened every week,” said Bryan Johnson, an immigration lawyer based on Long Island. Many of his clients are seeking asylum, and he said some have already been waiting a couple of years. With extra delays, he said, “if they have children who are abroad, that will delay family unification or spousal unification if their spouse is abroad.”

On a single day in May, when almost 400 hearings were scheduled to take place in immigration court, WNYC counted 60 people who didn’t have judges.

The Executive Office for Immigration Review runs the nation’s immigration courts. It says staffers typically mail a notice if a judge is out or a case is delayed, but they don’t always go out in time. As for why people are coming to court without judges, the agency explained that they are technically assigned to ”visiting judges.” But it acknowledged these judges don’t actually exist.

“The concept of ‘visiting judges’ is for internal case management,” said E.O.I.R. spokesman John Martin. “When judges retire, or temporarily stop hearing cases due to illness, the New York City Immigration Court will assign these dockets to a ‘visiting judge’ in order to maintain continuity of these cases. As new immigration judges are hired and officially placed at their respective immigration court locations, these ‘visiting judge’ dockets in those locations are reassigned to them.”

Even after a recent hire, New York City has only 29 immigration judges, compared to 31 at this time last year.

The backlog in immigration courts isn’t new. There are almost 600,000 pending cases, nationally. The problem started well before President Donald Trump took office.”

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

Read Beth’s complete article at the link.

A recent GAO report highlighted and quantified endemic management issues with the DOJ’s stewardship over the U.S. Immigration Courts, particularly in hiring new Immigration Judges which takes an astounding average of 742 days. http://wp.me/p8eeJm-Uh

Then, there are the retirements. It’s hardly rocket science that an aging workforce in high-stress jobs might retire in large numbers. I ran “Immigration Judge retirements” into my search engine and got 9 articles, right off the bat. Try it yourself.

Additionally, there is the practice of both Administrations of mindlessly jamming more new cases in the front of the system without a rational plan for completing the ones already in it. That’s followed by reassigning Immigration Judges (like they were assembly line workers) from existing dockets of cases scheduled for final hearings to new dockets of Not Quite Ready For Prime Time (“NQRFPT”) cases. And to cap it off, Secretary Kelly, egged on by Jeff Sessions, has told DHS agents to arrest anyone the feel like arresting without any regard for reasonable priorities or space on already overcrowded court dockets!

And, while we’re at it, let’s stuff more non-criminals into dangerous, expensive, and unneeded immigration detention, thereby turning them into self-created emergency situations, rather than thinking creatively about cheaper, more humane, and more effective methods of getting non-dangerous folks through the system in a reasonable manner.

And you gotta love imaginary “visiting judges.”  Visiting from where, “The Twilight Zone?” Almost as good as “warehousing” tens of thousands of cases on a single day in November 2019. No wonder that once in extreme frustration I referred to this administrative morass as “Clown Court!”🤡

No, it’s not all the fault of EOIR bureaucrats, most of whom mean well and are simply caught up in a “built for failure” system. But, it is the fault of the DOJ whose politicized management of the Immigration Courts has been a disaster since the beginning of this century. And, even if you removed politics from the equation, the DOJ obviously lacks the basic administrative competence to run a complicated, high volume court system. Ultimately, Congress must assume the responsibility for allowing this travesty to continue to exist. An independent Immigration Court outside the Executive Branch is long overdue.

But, other than that, it’s a great system!

Stay tuned! Tomorrow, Beth will tell us what judges pulled off their existing dockets find when they get to their “detail courts.” I can’t wait to hear what she found out!

PWS

06-05-17

 

 

Related posts:

  1. BETH FERTIG AT NPR: “ADR” Moves Into High Gear, Devastating U.S. Immigration Courts, As Half Of NY Immigration Court “Goes Dark” — U.S. Immigration Judges Become Adjuncts Of DHS Border Enforcement Program — Dockets At Interior Courts “Orbited Into Never-Never Land!”
  2. TRUMP’S “GONZO” ENFORCEMENT POLICIES PRODUCE MORE REMOVAL ORDERS BUT FEWER ACTUAL DEPORTATIONS! — CRIMINAL DEPORTATIONS FALL AS DHS PICKS ON NON-CRIMINALS! — MINDLESS ABUSE OF ALREADY OVERWHELMED IMMIGRATION COURT DOCKETS ACTUALLY INHIBITS ABILITY TO CONCENTRATE ON CRIMINALS!
  3. MUST SEE TV FROM PBS: Judge Dana Leigh Marks Explains The Dire Backlogs In U.S. Immigration Courts & Why They Are Becoming Worse Every Day!
  4. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019

NOT YOUR FATHER’S FOURTH CIRCUIT: Technology, Innovation, & A More Diverse Judiciary Change Tribunal Sitting In The Former Capital Of The Confederacy!

https://www.washingtonpost.com/opinions/after-a-ruling-on-trumps-travel-ban-all-eyes-are-on-the-4th-circuit/2017/06/02/b7a555f2-4545-11e7-bcde-624ad94170ab_story.html?utm_term=.825d55d2e2d7

Carl Tobias reports for the Washington Post.

“The U.S. Court of Appeals for the 4th Circuit is a court in transition. The Richmond-based appeals court was long considered the most ideologically conservative of the 12 regional circuits, the intermediate appellate tribunals across the country that are the courts of last resort for 99 percent of appeals. When a case heard in Maryland and Virginia federal district courts is appealed, it goes to the 4th Circuit. This is the court that has resolved appeals involving Maryland gun laws and Virginia transgender students’ rights, for example.

And change has come to the 4th Circuit.

This was recently on display when the entire court — all judges in active service who did not have conflicts of interest — substantially affirmed a Maryland district court’s nationwide injunction that blocked enforcement of President Trump’s revised travel ban. Notably, a majority of the judges proclaimed that the Constitution “protects Plaintiffs’ right to challenge the Executive Order that in text speaks in vague words of national security, but in context drips with religious intolerance, animus and discrimination.”

For decades, the 4th Circuit was a conservative stronghold. Seated in the former capital of the Confederacy, the court hears appeals in the Lewis F. Powell Jr. Courthouse, a building that served as the official headquarters for Confederate President Jefferson Davis. The circuit retains Southern manners. For instance, judges descend from the bench after oral arguments to shake the hands of counsel.

President George W. Bush tried to continue the court’s conservative legacy when numerous vacancies materialized in his administration. However, the White House insisted on pressing for confirmation of nominees whom many Democratic senators considered outside the mainstream, even after Democrats had captured a Senate majority in November 2006. Political machinations left four vacancies at the Bush administration’s close, enabling President Barack Obama to appoint numerous judges. The court now has nine members whom Democratic presidents appointed, five whom Republican presidents confirmed and Chief Judge Roger Gregory, whom President Bill Clinton recess-appointed and Bush confirmed.

Two recent developments in the travel ban appeal demonstrate change in the court. First, all of the active judges without conflicts heard the appeal, called an initial en banc proceeding, which is so extraordinary that the last one was decades ago. One judge, not the parties, suggested this procedure, and the court requested the litigants’ views on an en banc process, while a circuit majority favored it apparently because of the appeal’s exceptional public importance.

Another sign of change was the court’s April 27 announcement that the argument would be livestreamed. Allowing “cameras in the courtroom” has proved extremely controversial at the Supreme Court, which has never permitted live broadcast of arguments. Indeed, since-retired Justice David Souter famously declared “over my dead body.” A few lower federal courts allow broadcasts. The 9th Circuit began livestreaming all oral arguments in 2015.”

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

Read the complete article at the above link.

As a U.S. Immigration Judge sitting in the Fourth Circuit, I credited the Fourth Circuit’s carefully-crafted asylum jurisprudence and overriding concern for due process and fairness for asylum seekers as reasons why asylum grant rates were relatively high in the Arlington and Baltimore Immigration Courts (of course, along with my judicial colleagues’ careful attention the what the Fourth Circuit was saying; new Fourth Circuit rulings were a frequent topic of our lunch conversations.)

Apparently, however, the word didn’t reach as far south as the Charlotte Immigration Court, where advocates regularly complain of the rights of asylum seekers being “steamrolled.” To date, the BIA has failed to step in and fix the Charlotte situation. And, I wouldn’t expect it to happen with Jeff Sessions in charge of the U.S. Immigration Courts.

PWS

06-04-17

Related posts:

  1. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  2. “JRUBE” IN WASHPOST: DEPT OF IN–JUSTICE: Under “Gonzo Apocalypto” White Nationalist, Xenophobic, Homophobic Political Agenda Replaces “Rule Of Law” — Latest DOJ Litigation Positions Fail “Straight Face” Test: “making up rules willy-nilly so as to show its rabid xenophobic base it is adhering to its promise of racial and ethnic exclusion!” — Read My “Mini-Essay” On How Advocates and U.S. Courts Could Restore Justice & Due Process To Our Broken U.S. Immigration Courts!
  3. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  4. ICEMEN GONE WILD: MINDLESS, COUNTERPRODUCTIVE, CRUEL, WASTEFUL “GONZO” IMMIGRATION ENFORCEMENT IS THE ORDER OF THE DAY UNDER THE TRUMP/SESSIONS REGIME! — “Have discretion and humanity been dropped from the attributes that Americans can expect of their law enforcement agencies?”

INTRODUCING NEW COMMENTATOR — Hon. Jeffrey Chase — “Matter Of L-E-A: The BIA’s Missed Chance” — Original For immigrationcourtside!

Hi immigrationcourtside.com readers:

I am delighted to provide an original article by my good friend and colleague the Honorable Jeffrey Chase, who recently joined us in the ranks of the “retired but still engaged.” Judge Chase is a former U.S. Immigration Judge in New York, a former Senior Attorney Adviser at the BIA, and a former sole immigration practitioner in New York. He’s also a gentleman, a scholar, and an immigration historian. In a subsequent post I’ll be providing some links to parts of the “Chase Immigration History Library” which has previously been published by our friend and former colleague Judge Lawrence O. Burman in the FBA’s The Green Card.

Welcome to retirement and to immigrationcourtside, Judge Chase! We live in interesting times. Enjoy the ride.

Now, for your reading pleasure, here’s the complete original version of Judge Chase’s article about a recent BIA precedent.  Enjoy it!

Matter of L-E-A-

Matter of L-E-A-: The BIA’s Missed Opportunity

 

Jeffrey S. Chase

 

On May 24, the Board of Immigration Appeals published its long-anticipated precedent addressing family as a particular social group, Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). Thirteen amicus briefs were received by the Board addressing the issue of whether a “double nexus” is required in claims based on the particular social group of family.   The good news is that the Board did not create a “double nexus” requirement for family-based PSG claims. In other words, the decision does not require an asylum applicant to prove both their inclusion in the social group of X’s family, and then also establish that X’s own fear is on account of a separate protected ground.

 

Nevertheless, the resulting decision was highly unsatisfying. The Board was provided a golden opportunity to adopt the interpretation of the U.S. Court of Appeals for the Fourth Circuit, which has held persecution to be “on account of” one’s membership in the particular social group consisting of family where the applicant would not have been targeted if not for their familial relationship. Such approach clearly satisfies the statutory requirement that the membership in the particular social group be “at least one central reason for persecuting the applicant.” If the asylum seeker would not have been targeted if not for the familial relationship, how could such relationship not be at least one central reason for the harm? L-E-A- rejected this interpretation, and instead adopted a much more restrictive “means to an end” test. Under L-E-A-, even though the respondent would not be targeted but for her familial relationship to her murdered husband, she would not be found to have established a nexus because the gangsters she fears do not wish to harm her because of an independent animus against her husband’s family. Rather, targeting her would be a means to the end of self-preservation by attempting to silencing her to avoid their own criminal prosecution.

 

Under the fact patterns we commonly see from Mexico and the “northern triangle” countries of Central America, claims based on family as a particular social group will continue to be denied, as such fears will inevitably be deemed to be a means to some criminal motive of gangs and cartels (i.e. to obtain money through extortion or as ransom; to increase their ranks; to avoid arrest) as opposed to a desire to punish the family itself. Applying the same logic to political opinion, a popular political opponent of a brutal dictator could be denied asylum, as the dictator’s real motive in seeking to imprison or kill the political opponent could be viewed as self-preservation (i.e. avoiding losing power in a free and fair election, and then being imprisoned and tried for human rights violations), as opposed to a true desire to overcome the applicant’s actual opinions on philosophical grounds.

 

Sadly, the approach of L-E-A- is consistent with that employed in a line of claims based on political opinion 20 years ago (see Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997)) in which attempted guerrilla recruitment, kidnaping, and criminal extortion carried out by armed political groups were not recognized as persecution where the perpetrator’s motive was to further a goal of his/her political organization as opposed to punishing the asylum applicant because of his/her own political opinion.

 

Nearly a decade earlier, an extreme application of this “logic” resulted in the most absurd Board result of to date. In Matter of Maldonado-Cruz, 19 I&N Dec. 509 (BIA 1988), the Board actually held that a deserter from an illegal guerrilla army’s fear of being executed by a death squad lacked a nexus to a protected ground, because the employment of death squads by said illegal guerrilla army was “part of a military policy of that group, inherent in the nature of the organization, and a tool of discipline,” (to quote from the headnotes). After three decades of following the course of such clearly result-oriented decision making, the Board missed an opportunity to right its course.

 

The author formerly served as an immigration judge, and as a staff attorney at the Board of Immigration Appeals.

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

I agree with Judge Chase that this is a missed opportunity that will come back to haunt all of us. A correct decision would have allowed many of the Central American asylum seekers clogging the court system at all levels to be granted needed protection, either at the USCIS or in court. Here is a link to my prior blog and “alternative analysis” of L-E-A-.

http://wp.me/p8eeJm-Sh

Instead, I predict that some of these cases could still be “kicking around the system” somewhere a decade from now, unless some drastic changes are made. And the type of positive, due process, fairness, and protection oriented changes needed are not going to happen under the Trump Administration. So, the battles will be fought out in the higher courts.

Although the BIA did it’s best to obfuscate, it’s prior precedent in Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) basically established a “common sense/but for” test for one central reason. In a mixed motive case, if the persecution would have occurred notwithstanding the protected ground, then it is tangental, incidental, and not “at least one central reason.” On the other hand, if “but for” the protected ground the perseuction would not have occurred, that ground is at least “one central reason” of the persecution.

In L-E-A- the respondent would not have suffered threats and attempts to kidnap him  “but for” his membership in the family. Hence family clearly is “at least one central reason” for the persecution. That’s basically the test the Fourth Circuit Court of Appeals would apply.

It’s a fairly straightforward case. The respondent in L-E-A- satisfies the refugee definition. In fact, the serious threats delivered by a gang which clearly has the ability and the means to carry them out amounts to past persecution. Hence, the respondent is entitled to the rebuttable presumption of future persecution.

Instead of properly applying its own precedents and reaching the correct result, the BIA launches into paragraphs of legal gobbledygook designed to mask what’s really going on here: manipulating the law and the facts to deny protection to Central American refugees whenever possible.

I know, this respondent is from Mexico; but, the BIA’s intended target obviously is Northern Triangle gang-based asylum claims. This precedent gives the Immigration Judges and Asylum Officers lots of “hooks” to deny claims by women and children fleeing family-targeted gang violence.

And, it insures that nobody without a really good lawyer and the ability to litigate up to Courts of Appeals if necessary even has a chance. The BIA is certainly well aware that the Trump Administration is pulling out all the stops to effectively deny counsel to arriving asylum seekers by a combination of using expedited removal, increasing negative credible fear determinations, and detaining everyone in out of the way locations where conditions are discouraging and pro bono counsel are not readily available.

Yeah, I don’t suppose any of this is going to bother Trump Administration officials any more than it did the BIA’s DOJ bosses during the Bush and Obama Administrations. Some negative case precedents on repetitive Central American claims proved mighty handy in border enforcement efforts and “don’t come, you’ve got no chance” publicity campaigns. The only problem is the it twists protection law out of shape.

Finally, let the record reflect that I lodged a dissent in Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); and Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997), wrongly decided BIA precedent cases cited by Judge Chase. Indeed, Matter of T-M-B- eventually was reversed by the Ninth Circuit Court of Appeals, Borja v. INS, 175 F.3d 332  (9th cir. 1999), something which many BIA Appellate Judges only grudgingly acknowledged in later cases.

So, it will be left for the Courts of Appeals to straighten out nexus in the family context. Or not.

Again, welcome Judge Chase.  Look forward to hearing more from you.

PWS

06-03-17

 

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  2. 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!
  3. 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?”
  4. TWO MORE FROM HON. JEFFREY CHASE EXPOSING TRUMP ADMINISTRATION’S CRIMES AGAINST HUMANITY & HOW THE COMPLICIT FEDERAL COURTS FURTHER THESE ABUSES! — “How innocent women and children resigning themselves to being severely beaten, raped, and killed in their home countries constitutes all problems being solved is beyond comprehension.”

NEW PRECEDENT: BIA On “Receipt Of Stolen Property” –Matter of ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017) — Still Getting It Wrong After All These Years — Read My “Dissenting Opinion!”

https://www.justice.gov/eoir/page/file/970806/download

Here’s the BIA headnote:

“The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require that unlawfully received property be obtained by means of common law theft or larceny.”

PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, and Kendall Clark

OPINION BY: Judge Pauley

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

I respectfully dissent.

The Immigration Judge got it right. Under the “plain meaning” of the statute, the respondent is not an aggravated felon. Therefore, the DHS appeal should be dismissed.

Nearly 17 years ago, when I was Chairman of the BIA, I joined the dissenting opinion of Judge Lory D. Rosenberg in a related case, Matter of Bhata, 22 I&N Dec. 1381 (BIA 2000) https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3437.pdf which is cited by this panel in Matter of Alday-Dominguez. Indeed, the panel relies on Bhata to support it’s incorrect decision.

However, as Judge Rosenberg pointed out cogently in her dissent:

Accordingly, the modifying parenthetical phrase helps only to elucidate the main clause of the provision. Although the language “theft offense” may require our interpretation, the parenthetical must be read according to its own terms in the context of that subsection of the Act. The phrase “(including receipt of stolen property)” after the word “offense” limits the crimes that are included within the phrase “theft offense.” United States v. Monjaras-Castaneda, supra, at 329 (citing John E. Warriner & Francis Griffith, English Grammar and Composition (Heritage ed., Harcourt Brace Jovanovich 1977)). Specifically, the parenthetical provides that a “theft offense” encompasses the particular offense of receiving stolen property (which, by implication and judicial interpretation, is not a theft).

Matter of Bhata, supra, at 1396 (Rosenberg, AIJ dissenting).

Clearly, as pointed out by Judge Rosenberg, under a “plain reading” of the statutory language, “receipt of stolen property”  is a “subgroup” of a theft offense. Consequently, the unlawfully received property must have been obtained by “theft.” The California statute includes things other than property obtained by theft, specifically objects obtained by “extortion.”

Therefore, under the “categorical approach,” the California statute is broader than the aggravated felony offense described in section 101(a)(43)(G) of the Act. Accordingly, the DHS fails to establish that the respondent is removable under that section. Hence, the Immigration Judge correctly terminated removal proceedings, and the DHS appeal should be dismissed.

The majority is just as wrong today as it was in Bhata. Remarkably, a member of this panel, Judge Guendelsberger, along with Judge Gus Villageliu and Judge Neil Miller, joined our dissent in Bhata. Sadly, over the course of his unjustified exile, followed by re-education, rehabilitation, and reappointment to his Appellate Judgeship, my friend and colleague’s views must have changed since the days when he stood up with the rest of us for respondents’ legal rights against the majority of our colleagues who all too often bought the Government’s arguments, even when they were less than persuasive.

Just this week, in a unanimous decision written by Justice Clarence Thomas, the Supreme Court reinforced the “plain meaning” analysis in applying the categorical approach to an aggravated felony removal provision involving “sexual abuse of a minor.” Esquivel-Quintana v. Sessions, ___ U.S. ___ (2017). Yet, the panel seems “tone-deaf” to the very clear message from Justice Thomas and his colleagues about the impropriety of manipulating clear statutory language to achieve a finding of removal.

In conclusion, the respondent has not been convicted an of an aggravated felony under section 101(a)(43)(G) of the Act by virtue of his conviction for receiving stolen property under the California Penal Code. Consequently, the Immigration Judge reached the correct result, and the DHS appeal should be dismissed.

Therefore, I respectfully dissent from the panel’s decision to sustain the DHS appeal.

Paul Wickham Schmidt

Former BIA Chairman, Appellate Immigration Judge, & United States Immigration Judge (Retired)

Entered: June 2, 2017

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  3. SPLIT EN BANC BIA MOVES TO LIMIT SUPREME’S PEREIRA RULING: Matter of MENDOZA-HERNANDEZ CAPULA-CORTES 27 I&N Dec. 520 (BIA 2019)
  4. 🏴‍☠️☠️🤮⚰️👎CRIMES AGAINST HUMANITY, “PERPS” ON THE LOOSE! — DOJ Internal Report Shows How “Gonzo Apocalypto” Sessions, Rosenstein, Hamilton Conspired To Separate Migrant Kids In Violation Of 5th Amendment — When Will These Criminals Be Charged & Prosecuted Under 18 USC 242? — NY Times Reports!

GAO Report Recommends Improvements In U.S. Immigration Court Hiring, Technology, Data Analysis, & Oversight!

Here’s a link to the entire package, including highlights, summary of recommendations, and the full 153 page report:

http://www.gao.gov/products/GAO-17-438

The part of the GAO study that I participated in, entitled “Experts and Stakeholders Have Proposed Restructuring EOIR’s Immigration Court System,” may be found at pages 73-87 of the full GAO report.

Lots to think about here. But one thing is clear: EOIR needs some fundamental changes and reforms for the U.S. Immigration Courts to survive as an institution. Notwithstanding EOIR’s positive, yet somewhat bureaucratic, “official response” to the draft version of the report, whether those changes can and will be made within the structure of the current Department of Justice remains to be seen. If I were an oddsmaker, I’d give it somewhat less than a 50-50 shot.

PWS

06-02-17

 

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  2. “AIMLESS DOCKET RESHUFFLING” (“ADR”) IN NEW YORK — NPR’s Beth Fertig Exposes Due Process/Management Abuses By Obama & Trump Administrations!
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  4. GONZO’S WORLD: JUDICIAL REBELLION – Less Than One Year Into Gonzo’s Reign at The DOJ, One of America’s Most Conservative Judiciaries Seeks Protection From His Plans to Politicize The U.S Immigration Courts!

HOYA LAW REDUX — IMMIGRATION LAW & POLICY — Summer 2017 — Read “Welcome To the Breakfast Club: Introduction To Immigration Law & Policy, Georgetown Law Summer 2017 Edition”

I walked into Room 5020 at Hotung Hall. Windows, daylight! Wow! I felt almost like I had achieved tenure! After a two-year hiatus, I was back as an Adjunct Professor of Law at Georgetown. This time, I was off of the “night shift” and out of the windowless subterranian classroom in McDonough Hall. I think McDonough was where, as a newly hired Attorney Adviser at the Board of Immigration Appeals,  I took “Immigration Law & Procedure” in 1974 from the late Charles Gordon, then General Counsel of the INS and Adjunct Professor. Perhaps in the same classroom.

The students filed in. The energy and brain waves (certainly not mine) zinged around the room. A number of PhDs, a Chemist, a Patent Examiner, a licensed Social Worker, someone with a “big law” job already lined up — some working on second, or even third careers, others just getting started. Bright, curious, engaged. They had already accomplished impressive things, but wanted to achieve more. No “traditional immigration junkies,” but all had some personal connection with immigration and a desire to learn more.

And, they were highly motivated. Everyone did the first assignment and reported on what they had learned. As a teacher, doesn’t get much better.

I wasn’t sure I could make this happen. Although retired from the court, I’m actually more or less “booked” for various family, professional, and educational events through next October! So, when Georgetown contacted me, I initially was hesitant. But, with the help of Tiffany Joly, Director of LLM Academic Services and the incomparable Sarah Kinney, Assistant Director of LLM Academic Services, we were able to “compress” the summer semester into an intensive five weeks. I have always been impressed with the helpfulness and skill of the Georgetown Law administrators. Everyone knows exactly what they are doing, and they always patiently explain the process to, and meet the needs of, Adjunct Professors. It makes Georgetown a great place to teach. I’m also glad that my good friend, Professor Andy Schoenholtz, a Director of the CALS Asylum Clinic at Georgetown, brought me into the “Georgetown family” in 2012 and helped me return this summer.

Here’s the text of my “introductory lecture.” Although some of you have read earlier versions, there is some “new stuff” in here.

Welcome To The Breakfast Club-GeorgetownILP2017

PWS

05-31-17

 

 

 

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FBA Denver Wrap-Up — The Good, The Bad, & The Ugly!

The Good

It was a great conference in a great location — Denver. Lots of restaurants and things to do (although I was actually too busy to get out much).

Hats off to Conference Co-Chairs Barry Frager and the Honorable Lawrence O. (“The Burmanator”) Burman for putting the whole thing together and pulling it off without a hitch. Judge Burman, one of the few real judicial leaders at EOIR, also serves as the Chair of the Immigration Law Section (“ILS”) and editor of the outstanding newsletter, The Green Card.

An impressive group of approximately 400 attended, consisting of private practitioners, NGO lawyers, government attorneys, and several Federal Judges. They came from across the country. They heard from a faculty of dozens of experts covering 60 separate learning sessions over two days.

I particularly enjoyed catching up with old friends like fellow retired U.S. Immigration Judges Joan Churchill, Eliza Klein, and Bill Joyce and my former BIA colleague, Judge Lory Rosenberg. I was pleased to serve with Lory as the other member of the Due Process Panel, and I want to thank her for her very kind remarks about me.

A number of folks commented that they had never seen a happier and more relaxed group of Immigration Judges than our “Gang of Four” retired jurists. I should add that Bill and Eliza are both still actively practicing law, while Joan and I have chosen different retirement paths.

I loved the tremendous energy and spirit that the many younger practitioners brought to the conference. As I pointed out in my three presentations, never has the need for skilled immigration lawyers, ready to strongly and courageously fight the battle for due process, been greater. As one panelist put it, this is the time to show off and improve real legal skills and display creativity and toughness in conducting aggressive litigation in an era where the Government is seeking and intentionally provoking confrontation. Enjoy the moment! And these folks are ready to step up to the plate and give the Trump Administration’s anti-immigrant agenda all it can handle on every front.

It was heartening to see many “charter members” of the “New Due Process Army” (“NDPA”) — folks like Alex Ribe, Claudia Cubas, Eileen Blessinger, Jillian Blake, Robyn Barnard, Paromita Shah, and others — participating in the activities. I believe I also got some “new recruits” for the NDPA.

I’m already looking forward to next year in Memphis!

The Bad

Although The Office of Immigration Litigation (“OIL”), the DHS, U.S. Attorneys, and U.S. Magistrates participated in the panels, not a single current EOIR employee was on the faculty, although a number had been invited. The local U.S. Immigration Judges were “no shows,” although they would have had much to offer the group and vice versa.

Only a handful of EOIR employees attended, in their “personal capacities” and at their own expense. A troubling performance from an agency that amazingly cancelled their badly needed judicial training conference. And, the FBA is the only nationwide bar association concentrating on Federal Practice that encourages and makes possible full membership by both Federal employees and private sector attorneys.

The Ugly

In three words: “The Immigration Courts.” Everyone there, including government attorneys, has been affected in one way or another by the ridiculous backlog of non-detained cases. My references to “ADR” – aimless docket reshuffling – and feeling like I was in “Clown Court” some days struck a real chord with the audience.

Almost every session I attended was replete with descriptions of inappropriate behavior from several courts, Charlotte and Atlanta in particular. Things like Immigration Judges going off record and saying that they didn’t believe in A-R-C-G- (asylum for domestic violence) or asylum for Central Americans. Rude and intimidating treatment of counsel, failure to listen to arguments, unwillingness to grant bond, applying wrong legal standards, and inappropriately going “off record” were among the “horror stories” mentioned. It’s quite obvious that Atlanta and Charlotte, among others, are failing to follow the generous standards for granting asylum set forth by the Supreme Court in Cardoza-Fonseca and reinforced by the BIA in Mogharrabi.

It’s not about what an Immigration Judge personally believes. It’s about fairly and impartially applying the law, particularly to those needing protection. Gosh, I often had to apply BIA precedents that I not only disagreed with, but where I had actually dissented from the majority decision. But, the job of a judge is to follow the law, whether one likes it or not.

Much of the blame goes to the BIA. It sometimes appears to me that certain BIA Appellate Immigration Judges and panels are committed neither to enforcing due process nor their own precedent in Mogharrabi. Some folks are fortunate enough to be in Circuits that hold the BIA to the appropriate standards; others labor away in Circuits that have “blown off” their judicial review function by ”over-deferring” to the BIA. Clearly, the BIA has lost sight of its vision of “being the world’s best administrative tribunals guaranteeing fairness and due process for all.”

In any event, while some of the behavior issues could perhaps be addressed by EOIR management through the complaint system, that won’t solve the problem. Only the BIA has the ability to correct incorrect applications and attitudes about the law and due process in the U.S. Immigration Courts. Only the BIA can bring “outlier courts” – those with far too many asylum denials – into line with the law.

As I gave my keynote speech involving the history of EOIR, it occurred to me that EOIR, quite sadly, was actually returning to what the Immigration Courts were before the “spinoff” from the “Legacy INS:” inbred, staffed almost exclusively with former prosecutors, not user friendly, mismanaged, lacking necessary technology, and essentially being used as a tool for immigration enforcement. In other words, there is a notable lack of judicial independence. Very sad. It appears that as an due process oriented court system, EOIR has “run its course” in the DOJ and is now returning to it’s origins as a captive of the enforcement system.

The Immigration Courts’ problems have been aggravated by DHS leadership’s apparent decision to limit “prosecutorial discretion,” discourage cooperation and stipulation, and to “go to the mat” on everything. At a time when DHS should be looking for ways to get cases off the dockets, they instead appear to be looking for ways to jam the docket even fuller with cases, many of which are unlikely to be resolved in the next decade.

 

 

PWS

05-16-17

Related posts:

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  2. “THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS” – My Address To The Women’s Bar Association of DC, Dec. 14, 2017
  3. THE HILL: N. RAPPAPORT SAYS THAT EXPEDITED REMOVAL IS THE ANSWER TO IMMIGRATION COURT BACKLOGS – I DISAGREE!
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More Pics From Denver FBA!

Hon. Eliza Klein, USIJ (Ret.), Chicago, IL; Hon. William P. Joyce, USIJ (Ret.), Boston, MA

Hon. Lawrence O. ‘The Burmanator” Burman, Arlington, VA, ILS Chair & Conference Co-Chair; Eileen Blessinger, Esq., Falls Church, VA; Me; Barry Frager, Esq., Memphis TN, Conference Co-Chair

Hon. Lawrence O. Burman, Arlington, VA; Hon. Joan Churchill, USIJ (Ret.), Arlington, VA; Me; Hon. Eliza Klein, USIJ (Ret.), Chicago, IL

Hon. Lawrence O. Burman, Arlington, VA; Eileen Blessinger, Esq., Falls Church, VA; Me; Claudia Cubas, Esq., Washington, DC

Related posts:

  1. FBA Denver Wrap-Up — The Good, The Bad, & The Ugly!
  2. Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!
  3. “THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS” – My Address To The Women’s Bar Association of DC, Dec. 14, 2017
  4. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”