TRAC STATS EXPOSE ANOTHER TRUMP ADMINISTRATION LIE: “Newly Arrived Families Claiming Asylum” ARE NOT Causing The Immigration Court Backlog – That Backlog Was A Well-Established Product Of Gross Mismanagement & “Aimless Docket Reshuffling” Over The Last Three Administrations But Aggravated By This Administration’s “Malicious Incompetence” – Recently Arrived Families Are Only 4% Of The Pending Cases!

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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASEThe Immigration Court backlog continues to rise. As of February 28, 2019, the number of pending cases on the court’s active docket topped eight hundred and fifty-five thousand (855,807) cases. This is an increase of over three hundred thousand (313,396) pending cases over the backlog at the end of January 2017 when President Trump took office. This figure does not include the over three hundred thousand previously completed cases that EOIR placed back on the “pending” rolls that have not yet been put onto the active docket.

Recent family arrivals now represent just 4 percent of the current court’s backlog. Since September 2018 when tracking of family units began, about one out of every four newly initiated filings recorded by the Immigration Court have been designated by DHS as “family unit” cases. The actual number of families involved were less than half this since each parent and each child are counted as separate “court cases” even though many are likely to be heard together and resolved as one consolidated family unit.

There has been no systematic accounting of how many cases involving families arriving at the border will involve Immigration Court proceedings in their resolution. Families arriving at the border do not automatically have the right to file for asylum in Immigration Court. Thus far, the number of families apprehended by the Border Patrol or detained at ports of entry dwarf the actual number of these cases that have made their way to Immigration Court.

For further details, see the full report at:

https://trac.syr.edu/immigration/reports/551

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through February 2019. For an index to the full list of TRAC’s immigration tools go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse

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Remember, folks, the next time you hear the Administration’s “professional liars” like Kirstjen Nielsen engage in bogus “hand wringing” and call for crackdowns on asylum applicants, their lawyers, and drastic changes to asylum law — she is covering up and shifting the blame for grossly incompetent management of the asylum program and the Immigration Courts by this Administration. “Victim blaming and shaming” — a staple of the Trump Kakistocracy — is about as low as it goes.
While laws can always be improved —  for example an Article I U.S. Immigration Court, adding gender-based asylum to the “refugee” definition, supporting legal representation for arriving asylum seekers, and increasing the number and initial jurisdiction to grant asylum of the Asylum Officers should be “bipartisan no brainers” —  the real problem here is not the law!
No, it’s the unwillingness of this Administration to follow laws protecting refugees, allow for robust “out of country processing” of refugees from Central America, and eliminate anti-asylum, anti-Latino, and anti-female bias from our asylum adjudication system that has created a “self-constructed crisis.”
Insist that this Administration take responsibility for their “designed to fail,” White Nationalist, restrictionist policies, improve performance, and administer refugee and asylum laws fairly, impartially, and in accordance with Due Process under our Constitution.
Under no circumstances should the already far too limited rights of asylum seekers and migrants to receive fair, honest, and humane treatment in accordance with constitutional Due Process be reduced as this Administration is always disingenuously seeking. And the money being illegally diverted and wasted on a semi-nonsensical “Wall” could and should much better be spent on improving our current asylum system and making it work — without any more illegal “gimmicks” such as attempting to rewrite the statutes by regulation, the bogus and ill-conceived “Migrant Protection Protocols,” and “slow walking” the applications of those who line up patiently to apply for asylum at legal ports of entry.
PWS
11-20-19

HON. JEFFREY S. CHASE: Trump Administration’s Cowardly, Malicious, & Lawless Attack On SIJS Kids Green Cards Earns Yet Another Powerful Rebuke From Federal Judge!

https://www.jeffreyschase.com/blog/2019/3/19/court-rebukes-youth-policy-shift

Court Rebukes Youth Policy Shift

This past Friday, the Department of Homeland Security’s random policy change deeming youths between the ages of 18 and 20 years old ineligible for special immigration protection ran into a brick wall in the form of the U.S. District Court for the Southern District of New York.  In his decision in R.F.M. v. Nielsen, Judge John G. Koeltl held that DHS’s sudden policy shift denying Special Immigrant Juvenile Status (or SIJS, for short) to qualified youths over the age of 18, a group that it had previously approved under the same statute for nearly three decades, (1) was contrary to the plain language of the statute it claimed to interpret; (2) lacked a reasonable explanation, (3) was premised on an erroneous interpretation of state law, and (4) was not enacted with adequate notice, as required by the Administrative Procedures Act.  For these reasons and more, Judge Koeltl concluded that the policy shift was arbitrary and capricious, in excess of statutory jurisdiction, and without observance of the procedure required by law. The judge further granted the plaintiffs’ motions for class certification and for summary judgment.

What exactly did DHS do to invoke such a strong judicial rebuke?  SIJS was created by Congress in 1990 to provide a path to legal residence for immigrant youths who have suffered abuse, neglect, or abandonment.  The statute defines juveniles eligible for such benefit as those under the age of 21, and applicants under that cut-off age were generally afforded such status.  However, in early 2018, the present administration suddenly and without warning began denying applications involving applicants over the age of 18. Sounding very much like Herr Zeller in The Sound of Music claiming that “nothing in Austria has changed,” government counsel attempted to argue that there had been no change in policy, a claim that Judge Koeltl outright rejected in light of clear evidence to the contrary.  As the L.A. TImes reported in January, the impact of the policy shift was magnified by another DHS policy directive to commence deportation proceedings against those whose applications for benefits are denied, an action that had previously rarely been taken against juvenile applicants.

What immediately struck me about the new DHS policy at the time of the shift was its position that the New York Family Court lacked jurisdiction over youths who had reached the age of 18 as a basis for denying the petitions.  How could a federal agency feel it had the right to rule on a state court’s jurisdiction over a matter of state law? Of course, Judge Koeltl noted in his decision that in spite of a USCIS Policy Manual requiring the agency to rely on the state court’s expertise on such matters, and prohibiting the agency from reweighing the evidence itself or substituting its own interpretation of state law for that of the state court,  DHS nevertheless did exactly that, substituting its own interpretation of New York law for that of the New York Family Court in arguing for that court’s lack of jurisdiction. Of course, DHS’s improper interpretation wasn’t even a correct one; with the judge finding that DHS’s conclusion “is based on a misunderstanding of New York State law.”

Just in case there was any doubt as to its bad faith, the Government even opposed the motion that the young Plaintiffs be allowed to proceed anonymously in the action, identified only by their initials.  What possible reason other than harassment could DHS have in opposing such motion made by young plaintiffs who had suffered abuse or abandonment?

Not coincidentally, there has been a surge in SIJS-eligible youth arriving at the border in recent years, with most coming from the besieged Northern Triangle countries of El Salvador, Guatemala, and Honduras.  Youths in those countries run a shockingly high risk of being targeted for domestic violence, forced gang recruitment, and other physical and psychological harm. These are children that we are talking about. Nevertheless, the Trump Administration has consistently targeted citizens of these countries, inaccurately labeling them as criminals and deriding the legitimacy of their motives for seeking refuge in this country.  And, like pieces in a puzzle, the shift in SIJS policy is just one more way that the Trump Administration has created obstacles for a group it should be seeking to protect.

Hats off to the Legal Aid Society and the law firm of Latham and Watkins for their outstanding representation of the plaintiffs.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.

Here’s a link to the “full text” of the case Jeffrey discusses, courtesy of our good friend Dan Kowalski over at ltl G. Koeltl

https://drive.google.com/file/d/1tItg1FYOtkm_eqI_oDeWuuofA6p-ZObl/view?usp=sharing

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What about the DOJ attorneys who are defending these patently illegal actions in court, often without providing any rationale that would pass the “straight face test?” Why is it OK to present “pretextual” reasons for policies that publicly available information shows are actually based on bias, undue outside influence, ignoring facts, and sometime outright racism, and xenophobia? Why are DOJ attorneys and their supervisors, who are also members of the bar, allowed to operate in an “ethics free zone?”

Don’t expect any help from newly minted Trump sycophant AG Bill Barr. Despite his “Big Law Corporate Patina” and his bogus claim that he seeks to “restore confidence” in the DOJ, his first project is reputed to be a scurrilous Trump-type attack on Federal Judges issuing nationwide injunctions who are among those (the private, often pro bono, bar and NGOs being others) having the courage to stand up for the rule of law and our Constitution against the outrageous onslaughts of Trump, his cronies, and his team of disingenuous lawyers who seem to believe that they have been immunized from the normal rules of ethical and professional conduct.

No, Barr isn’t just a “conservative lawyer.” I actually worked for a number of  very “conservative” lawyers both in and out of Government. While I didn’t always agree with their policies and their legal arguments (that wasn’t a job requirement), I did find them willing to listen and consider “other views” and occasionally be persuaded. Moreover, they all had a respect for both our legal system and the Constitution, as well as Federal Judges and those on “the other side” of issues that I find completely, and disturbingly lacking in the Trump Administration and its “ethnics free” legal team.

Not only are the efforts of the Trump Administration to “undo” provisions of our law that “work,” promote justice, and save lives illegal and immoral, they also are tying up rousources with frivolous and unnecessary litigation. What if all of that time and effort were put into solving problems and making our country better, rather than destroying it?

PWS

03-20-19

SUPREMES BOOST ADMINISTRATION’S “GULAG” WITH SPLIT DECISION ON MANDATORY DETENTION STATUTE — NIELSEN V. PREAP — Why Both Sides “Live To Fight Another Day”

HERE’S THE “FULL TEXT” OF THE DECISION:

PREAP-16-1363_a86c

SYLLABUS BY COURT STAFF (NOT PART OF THE OPINION):

NIELSEN, SECRETARY OF HOMELAND SECURITY,

ET AL. v. PREAP ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 16–1363. Argued October 10, 2018—Decided March 19, 2019*

Federal immigration law empowers the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 8 U. S. C. §1226(a). Another provision, §1226(c)—enacted out of “concer[n] that deportable crimi- nal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings,” Demore v. Kim, 538 U. S. 510, 513—sets out four categories of aliens who are inadmissible or de- portable for bearing certain links to terrorism or for committing spec- ified crimes. Section 1226(c)(1) directs the Secretary to arrest any such criminal alien “when the alien is released” from jail, and §1226(c)(2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determination on removal (with one excep- tion not relevant here).

Respondents, two classes of aliens detained under §1226(c)(2), al- lege that because they were not immediately detained by immigra- tion officials after their release from criminal custody, they are not aliens “described in paragraph (1),” even though all of them fall into at least one of the four categories covered by §§1226(c)(1)(A)–(D). Be- cause the Government must rely on §1226(a) for their detention, re- spondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status. The Dis- trict Courts ruled for respondents, and the Ninth Circuit affirmed.

——————

* Together with Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al. v. Khoury et al. (see this Court’s Rule 12.4), also on certiorari to the same court.

2 NIELSEN v. PREAP Syllabus

Held: The judgments are reversed, and the cases are remanded.

831 F. 3d 1193 and 667 Fed. Appx. 966, reversed and remanded. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, concluding that the Ninth Circuit’s interpretation of §1226(c) is contrary to the plain text and structure

of the statute. Pp. 10–17, 20–26.
(a) The statute’s text does not support the argument that because

respondents were not arrested immediately after their release, they are not “described in” §1226(c)(1). Since an adverb cannot modify a noun, §1226(c)(1)’s adverbial clause “when . . . released” does not modify the noun “alien,” which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D). Respondents contend that an adverb can “describe” a person even though it cannot modify the noun used to denote that person, but this Court’s interpretation is not dependent on a rule of grammar. The grammar merely com- plements what is conclusive here: the meaning of “described” as it appears in §1226(c)(2)—namely, “to communicate verbally . . . an ac- count of salient identifying features,” Webster’s Third New Interna- tional Dictionary 610. That is the relevant definition since the indis- putable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary which aliens she must arrest immediately “when [they are] released.” Yet the “when . . . released” clause could not possibly describe aliens in that sense. If it did, the directive given to the Sec- retary in §1226(c)(1) would be incoherent. Moreover, Congress’s use of the definite article in “when the alien is released” indicates that the scope of the word “alien” “has been previously specified in con- text.” Merriam-Webster’s Collegiate Dictionary 1294. For that noun to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the end of para- graph (1). Thus, the class of people to whom “the alien” refers must be fixed by the predicate offenses identified in subparagraphs (A)– (D). Pp. 10–14.

(b) Subsections (a) and (c) do not establish separate sources of ar- rest and release authority; subsection (c) is a limit on the authority conferred by subsection (a). Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and that fact alone will not spare them from subsection (c)(2)’s prohi- bition on release. The text of §1226 itself contemplates that aliens arrested under subsection (a) may face mandatory detention under subsection (c). If §1226(c)’s detention mandate applied only to those arrested pursuant to subsection (c)(1), there would have been no need for subsection (a)’s sentence on the release of aliens to include the words “[e]xcept as provided in subsection (c).” It is also telling that subsection (c)(2) does not limit mandatory detention to those arrested

Cite as: 586 U. S. ____ (2019) 3

Syllabus

“pursuant to” subsection (c)(1) or “under authority created by” sub- section (c)(1), but to anyone so much as “described in” subsection (c)(1). Pp. 15–17.

(c) This reading of §1226(c) does not flout the interpretative canon against surplusage. The “when . . . released” clause still functions to clarify when the duty to arrest is triggered and to exhort the Secre- tary to act quickly. Nor does this reading have the incongruous re- sult of forbidding the release of a set of aliens whom there is no duty to arrest in the first place. Finally, the canon of constitutional avoid- ance does not apply where there is no ambiguity. See Warger v.Shauers, 574 U. S. 40, 50. Pp. 20–26.

JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICEKAVANAUGH, concluded in Parts II and III–B–2:

(a) This Court has jurisdiction to hear these cases. The limitation on review in §1226(e) applies only to “discretionary” decisions about the “application” of §1226 to particular cases. It does not block law- suits over “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole.” Jennings v. Rodriguez, 583 U. S. ___, ___. For reasons stated in Jennings, “§1252(b)(9) does not present a jurisdictional bar.” See id., at ___. Whether the District Court in the Preap case had jurisdiction under §1252(f)(1) to grant in- junctive relief is irrelevant because the court had jurisdiction to en- tertain the plaintiffs’ request for declaratory relief. And, the fact that by the time of class certification the named plaintiffs had obtained ei- ther cancellation of removal or bond hearings did not make these cases moot. At least one named plaintiff in both cases could have been returned to detention and then denied a subsequent bond hear- ing. Even if that had not been so, these cases would not be moot be- cause the harms alleged are transitory enough to elude review.County of Riverside v. McLaughlin, 500 U. S. 44, 52. Pp. 7–10.

(b) Even assuming that §1226(c)(1) requires immediate arrest, the result below would be wrong, because a statutory rule that officials “‘shall’ act within a specified time” does not by itself “preclud[e] ac- tion later,” Barnhart v. Peabody Coal Co., 537 U. S. 149, 158. This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted §1226(c). Cf.Woodford v. Garceau, 538 U. S. 202, 209. Pp. 17–20.

JUSTICE THOMAS, joined by JUSTICE GORSUCH, concluded that three statutory provisions—8 U. S. C. §§1252(b)(9), 1226(e), and 1252(f)(1)—limit judicial review in these cases and it is unlikely that the District Courts had Article III jurisdiction to certify the classes. Pp. 1–6.

ALITO, J., announced the judgment of the Court and delivered the

4 NIELSEN v. PREAP Syllabus

opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, in which ROBERTS, C. J., and THOMAS, GORSUCH, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II and III–B–2, in which ROBERTS, C. J., and KAVANAUGH, J., joined. KAVANAUGH, J., filed a con- curring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

WHY THE SOLICITOR GENERAL’S OFFICE SHOULD BE HAPPY: 

🙂  They won;

🙂  They whipped the detested Ninth Circuit and bested several of those “liberal West Coast District Judges” who are always meddling, and also whacked the ACLU who was representing the plaintiffs;

🙂  While the issue regarding the constitutionality of mandatory indefinite detention without bond remains, there is some reason to believe that the Supremes will eventually take that issue and the “breakdown” will be the same, thus resulting in another Government victory;

🙂  For now, except in the 9th Circuit, the DHS is free to “slammerize” indefinitely without recourse any foreign national convicted of certain deportable crimes, even if the conviction was long ago, the sentence has been completed, and the individual has stayed out of trouble since release;

🙂 The longer the constitutional issue kicks around the lower Federal Courts, the more “Trumpy” those courts are likely to get.

WHY THE ACLU AND THEIR ALLIES SHOULD ALSO BE HAPPY: 

🙂  They prevailed on the issue of the Court’s jurisdiction to decide the claim;

🙂  This case was decided on a very narrow statutory basis involving rather arcane linguistic analysis;

🙂  The issue of the constitutionality of the mandatory detention statute remains very much “alive” in the lower Federal Courts;

🙂  The ACLU and other plaintiffs have preliminarily won on the constitutional issue in the Ninth Circuit (Rodriguez v. Marin) following a Supreme Court remand (Jennings v. Rodriguez); therefore, an injunction in the Ninth Circuit remains in effect requiring bond hearings every six months for those mandatorily detained pending further proceedings in the U.S. District Court;

🙂 The ACLU is likely to prevail on the constitutional issue in the District Court and the Ninth Circuit; depending on the pace of the lower court proceedings, Rodriguez might not come up for decision by the Supremes until after the 2020 election;

🙂  If the Democrats were to sweep the 2020s (a big “if,” to be sure, particularly after 2016), the ACLU might be able to convince a Democratic President and Congress to solve the problem with legislation mitigating mandatory detention without review, thereby perhaps “mooting” the Supreme Court case before decision;

🙁 But, keep in mind that once in power, Obama and other Democratic Administrations embraced mandatory detention and were more than happy to defend it in court and employ it in practice;

🙂  On the other hand, the ACLU probably can count on the Trump Administration to continue to pile up a record of detention abuses that will “rev up” more Democratic political sentiment for at least some statutory restraints on, if not outright abolition of, long-term civil immigration detention.

Stay tuned!

PWS

03-18-19

 

THE HILL: Nolan Says That Border Security Is Now In Speaker Pelosi’s Hands

 

Family Pictures

Pelosi has won — and she’s now the only one able to secure the border

By Nolan Rappaport
Pelosi has won — and she's now the only one able to secure the border
© Greg Nash
House Speaker Nancy Pelosi (D-Calif.) claims that “Democrats are committed to border security,” but the Democrats have opposed President Donald Trump’s efforts to do that.
Pelosi supported the joint resolution to terminate Trump’s declaration of a National Emergency at the Southern border. The resolution was passed in both chambers and sent to Trump on March 14. He vetoed it the next day.
Congress appears unlikely to override the veto, so the fate of the declaration probably will be decided by the same Ninth Circuit Courts that flouted precedent to block Trump’s travel ban, which almost certainly will result in another lower court defeat for Trump. The Supreme Court, however, may reverse the lower courts, as it did in the travel ban case. But that could take quite some time.
The Catch-22 at the heart of the matter
During the Bill Clinton administration the government entered into a settlement agreement that makes it difficult to remove aliens who bring their children with them when they make an illegal border crossing.
This became apparent last May, when Trump announced a zero-tolerance border security enforcement policy. Illegal entries are a crime: The first offense is a misdemeanor and subsequent offenses are felonies. Trump tried to use a no exceptions threat of a criminal prosecution as a deterrent. “If you cross the border unlawfully, then we will prosecute you,” he said — no exceptions for aliens who bring their children with them.
The problem was prosecution of an alien who has his child with him requires the government either to detain the child with him while he is being prosecuted or separate him from his child.
Published originally on The Hill.
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Go on over to The Hill at the above link to read Nolan’s complete article.
Seems like the Government’s best bet would be to work cooperatively with NGOs and pro bono groups to link families who pass credible fear or who have court challenges pending to pro bono attorneys and to charitable organizations who can aid in temporary resettlement. In those situations, represented families almost always show up for their court hearings and keep the courts, DHS, and the lawyers properly informed of their whereabouts.
If the Government deems it a “priority” to move these cases to the “front of the court line” then they can remove some of the cases that are more than three years old and do not involve individuals with crimes from the already overcrowded Immigration Court dockets. The hundreds of thousands of pending and moribund  “Non-Lawful Permanent Resident Cancellation of Removal Cases” would be fairly easily identifiable and logical candidates.
That will allow the Immigration Courts to concentrate on fair and timely adjudications of the more recent asylum claims without contributing to the overwhelming backlog. Some fair precedents by the Article III Courts (under this DOJ, the is no chance of fair asylum precedents being issued administratively) as to what claims do and do not properly qualify for asylum and relief under the CAT would eventually help provide meaningful guidance to Asylum Officers, Immigration Judges, BIA Appellate Judges, and the private bar, and well as DHS Attorneys. This in turn, would help minimize the court time spent on cases that either were “slam dunk grants” or had “no chance” even under the most favorable view of the facts for the applicant. Both the DHS and the private bar would thus be motivated to spend time on the cases that really needed to be litigated in Immigration Court.
Additionally, greater predictability in the U.S. asylum system might also assist human rights groups working with individuals in the Northern Triangle and in Mexico to make better, more informed, and more realistic decisions as to whether to pursue humanitarian resettlement opportunities in Mexico and other countries in the hemisphere that might offer such.
If Congress were going to act, the most helpful changes would be 1) establishing an independent Article I immigration Court to replace the dysfunctional mess that has  been created over the past several Administrations but severely and unnecessarily aggravated by this Administration; 2) amend the Act’s definition of “asylum” to make it clear that “gender” is a subset of “particular social group” persecution; 3) authorizing some type of “universal representation program” for asylum applicants in Immigration Court; and 4) requiring the Administration to reinstitute a meaningful “outside the U.S.” refugee processing program for Latin America in conjunction with the UNHCR;
No, it wouldn’t solve all problems overnight. Nothing will. But, it would certainly put an end to some of the Administration’s wasteful and bad faith “gimmicks” and unnecessary litigation that now clog our justice system. That’s at least the beginning of a better future and a better use of resources.
PWS
03-18-19

ATTENTION NDPA NY BRIGADE AND ALL OTHER “DUE PROCESS WARRIORS” IN THE NY METRO AREA: Come Hear About The Dysfunctional Due Process Mess In Our U.S. Immigration Courts & The Article I Solution!

This is my final “scheduled stop” in the NY Metro Area this Spring. don’t miSs it!

PWS

03-18-19

What The DAG SHOULD Have Said To New U.S. Immigration Judges (But, Of Course Didn’t) . . .

WELCOME: DUE PROCESS IS YOUR ONLY MISSION

Congratulations on your appointment as U.S. Immigration Judges. It’s a difficult and important judicial position under the best of circumstances. Given the many controversies surrounding immigration today your job is even more challenging.

You face an overwhelming backlog resulting from factors largely beyond your control. Rather than being consumed or demoralized by that backlog, your job is to guarantee fairness and due process in each individual case coming before you. This requires you to act independently and resist pressures, from any quarter, to “cut corners” or otherwise compromise your constitutional duty to act impartially, fairly, and professionally toward each individual appearing before you.

While you occupy an unusual position as quasi-judicial officers who are also employed by Department of Justice, the Department regulations charge you with exercising your “independent judgment and discretion and . . . [taking] any action consistent with [your] authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.”

Indeed, the United States Supreme Court in the landmark case U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) stated with respect to your similarly situated judicial colleagues on the Board of Immigration Appeals that each administrative judge serving under these regulations “must exercise his authority according to his own understanding and conscience. This applies with equal force to the Board and the Attorney General. In short, as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.”

Consequently, although as a cabinet officer the Attorney General might sometimes take certain positions or advocate certain policies, you must consider only the facts, the statutes, the regulations, and any precedent decisions directly relevant to your particular case in reaching your decisions. And, you must always treat the Department of Homeland Security as a separate party, with the same respect and consideration that you will give to individuals coming before you and their attorneys. That you are all employees of the same Government should not entitle DHS to special or preferable treatment or deference not afforded to other parties coming before your courts.

The motto of the Department of Justice, basically refers to one “who prosecutes in the name of justice.” Thus, our Department stands alone in incorporating a moral principle — the requirement of doing justice — into its mission. As that great American Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.”

Some of the most vulnerable individuals entitled to due process under our Constitution will come before you in your courts. Your awesome and solemn responsibility is to insure that they receive due process and fairness — in other words justice — no matter how difficult their individual circumstances might be or any handicaps under which you might be operating.

Many of those arriving in the United States today are applying for asylum under our laws. Those fleeing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion are eligible for protection. In INS v.Cardoza-Fonseca, 480 U.S 421 (1987) our Supreme Court instructed us to apply the asylum standard in a generous manner. Others who face torture at the hands of, or with the “willful blindness” of, their governments, are entitled to protection without having to establish that the torture results from one of the foregoing “protected grounds.” An important part of your job will be insure that those who qualify for protection under our laws are given a full and fair chance to prepare their cases, to be represented by counsel of their choice, receive fair and reasoned decisions, and are not unfairly returned to harm in the countries they fled.

For my part, I pledge that during the time I remain with the Department of Justice I will do everything in my power to protect your quasi-judicial independence from improper influence, to allow you to manage your own dockets and develop “best practices” without bureaucratic interference,  and to secure for you the resources you need to do your critically important jobs. I trust that my successor will do likewise.

The vision of our Immigration Courts is “through teamwork and innovation become the world’s best administrative tribunals guaranteeing fairness and due process for all.” Your challenge is to do everything within your power to make that vision a reality each day you are on the bench.

Congratulations again on your selection and on choosing to serve our country in these important judicial positions at this critical juncture in our history. I thank you in advance for your future service and commitment to insuring equal justice for all. Good luck, do great things, and make due process for all your daily goal.

 

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Someday, we will once again have an Attorney General and a DAG who truly respect Constitutional Due Process, don’t fear independent judicial decision-making, and have the courage and backbone to “just say no” to White Nationalist restricitionist agendas that conflict with our Constitution, our statutes, our international obligations, common human decency, and what were once almost universally considered “true American values.”

Until then, it will be up to the “New Due Process Army” and their allies to keep Due Process and fairness for all of us alive during what will go down as one of the darkest and most evil periods in modern American history.

PWS

08-18-19

DAG ROSENSTEIN INADVERTENTLY MAKES COMPELLING ARGUMENT FOR INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT IN SPEECH TO NEW JUDGES — Places Emphasis On Executive, Fealty To Attorney General, Not Independence. Impartiality, & Insuring Due Process! — REAL “Courts” Don’t Answer to Prosecutors!

https://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbXNpZD0mYXVpZD0mbWFpbGluZ2lkPTIwMTkwMzE1LjMyNjAxNDEmbWVzc2FnZWlkPU1EQi1QUkQtQlVMLTIwMTkwMzE1LjMyNjAxNDEmZGF0YWJhc2VpZD0xMDAxJnNlcmlhbD0xODQ4OTEzNiZlbWFpbGlkPWRrb3dhbHNraUBkYXZpZC13YXJlLmNvbSZ1c2VyaWQ9ZGtvd2Fsc2tpQGRhdmlkLXdhcmUuY29tJnRhcmdldGlkPSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&&&101&&&https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly

Deputy Attorney General Rod J. Rosenstein Delivers Opening Remarks at Investiture of 31 Newly Appointed Immigration Judges
Washington, DC

~

Friday, March 15, 2019

Thank you, James, for that kind introduction. I appreciate your devoted service to the Department of Justice.

I also want to thank Deputy Chief Judges Santoro and Cheng, and Assistant Chief Judges Doolittle, Owen, Mart, and Weiss.

I am grateful to Marcia Lee-Sullivan and Karen Manna for helping to plan this event.

Above all, I want to congratulate our 31 new immigration judges for joining the Executive Office for Immigration Review, and welcome the family members and friends who are with us today.

I took my first oath as a Department of Justice employee in 1990. I hope it is as meaningful to you as it is to me. They have sworn me in several more times over the past three decades. But they never swear you out.

The oath obligates you to support and defend the Constitution. Our nation was not united by race, ethnicity, religion, or even national origin. The founders’ goal of bringing peoples of the world together in a single nation is reflected in the motto adopted at the founding of our Republic: e pluribus unum: from the many, one. Our one nation is unified by our shared commitment to the principles of the United States Constitution.  The preamble sets forth, among its primary goals, to “establish Justice.” Justice – or the fair application of the rule of law – is the essence of America.

The right to live and work in America is a tremendous privilege. It is a valuable privilege. It is a privilege that has meaning only if we exercise our right and duty to protect it by setting rules for people who seek to acquire the privilege.

It is right and proper for us to insist that people who desire to join our nation – people who want themselves and their children to join the privileged group who define ourselves as “we, the people” – start by following the rules governing admission and citizenship.

The duties imposed by your oath of office include faithfully enforcing those rules.

America’s immigration laws are generous and welcoming, but they are intended to protect the rights and advance the interests of current and future citizens.

More than a century ago, Theodore Roosevelt remarked that “[t]he average citizen must be a good citizen if our republics are to succeed. The stream will not permanently rise higher than the main source; and the main source of national power and national greatness is found in the average citizenship of the nation.” Roosevelt did not limit his remarks to birthright citizens. He said, “We must in every way possible encourage the immigrant to rise …. We must in turn insist upon his showing the same standard of fealty to this country and to join with us in raising the level of our common American citizenship.”

Obeying the law when seeking entry to the United States is an essential component of “fealty to this country.”

Estimates suggest that there are more than 44 million people in our country who were not American citizens at birth. That is almost 14 percent of our population, the largest share in more than a century.  America’s foreign-born population exceeds the total population of California, our most populous state, and it is larger than the entire population of Argentina.

Those numbers continue to grow. Every year, we generously extend lawful permanent resident status to more than one million people, and we allot hundreds of thousands of student visas and temporary work visas.

It is no surprise that so many people want to join us. According to the World Bank, nearly half of the world lives on less than $5.50 per day. According to a recent Gallup poll, 150 million people around the world want to immigrate to the United States. We cannot take them all.

For our system to be fair, it must be carried out faithfully and equitably. It must be fair to all who desire to come here — whether they live south of our border or an ocean away.

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.

You take office at a critical time. The number of immigration cases filed each year is rapidly increasing. In February, the Department of Homeland Security apprehended 66,000 aliens who unlawfully entered our country between ports of entry along the southwest border. On average, our colleagues at the Department of Homeland Security encounter about 3,000 aliens every day along the southern border.

Most of them cross the border unlawfully, between points of entry. They chose not to follow the law. Because they do not follow the law, many of them expose themselves and their children to exploitation and abuse. Many pay criminal smugglers because they know that they might not be allowed to enter lawfully. Nonetheless, our legal system protects them.

The massive influx of aliens who arrive in America illegally and invoke due process rights under our law creates a staggering volume of immigration cases that require resolution.

The primary factor driving the increasing backlog is the significant increase in asylum applications. Asylum applications have more than tripled in less than five years.

Our asylum system was established in the aftermath of World War II. America seemed to have limitless space at that time, and the goal was to protect minority groups from persecution by foreign states, the kind of persecution that the world witnessed during World War II and which was prevalent at that time in the purges conducted by our erstwhile ally, the Soviet Union.

The law authorizes asylum only for victims who suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or because of their political opinion.

Other reasons for seeking to immigrate may be rational and even laudable. We certainly understand why foreigners wish to come to America in search of better opportunities for themselves and their children. America is a great nation that does not need walls to keep its citizens from leaving, like the Soviet Union. We build walls only to protect ourselves and enforce our rules.

The duty of our immigration judges is to honestly find the facts and faithfully apply the laws, so that people obtain asylum only if they qualify for it under the statute.

We are taking steps to address the massive influx of cases. We are hiring more judges; we are holding more hearings; and we are completing more cases, more quickly.

Since President Trump’s inauguration, the Department of Justice has hired more immigration judges than in the previous seven years combined. We now employ the largest number of immigration judges in history. There are 48 percent more immigration judges than three years ago, and 71 percent more than five years ago.

And we are finding innovative ways to become more efficient. For example, the Department has had great success using video teleconference technology, which enables judges to share the case burden with one another across the country.

We will look for other ways to become more efficient and more effective. But ultimately we are depending upon you, both to perform your duties expeditiously, and to let us know when you identify opportunities for improvement.

One of my favorite management parables is about a child who watches her mother prepare a roast beef.  The mother cuts the ends off the roast before she puts it in the oven.  The child asks why. The mother says that she learned it from her mother. So the child asks her grandmother. The grandmother explains, “When your mother was a child, I cut the ends off because my pan was too small to fit the whole roast beef.”

The moral is that the solutions of the past are not necessarily the right solutions today.  Circumstances change.  Sometimes we need to reconsider assumptions and realign our practices to achieve our goals.  The movie “Moneyball,” based on a book by Michael Lewis, summarizes the lesson in three words borrowed from Charles Darwin: “Adapt or die.” Some of the best ideas to enhance efficiency come from relatively new employees who are not accustomed to existing bureaucratic rules. If you think you know a better way to accomplish our mission, please speak up and let us know.

Our challenges are daunting.  But you can be part of the solution.

Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties.

We chose you because of your qualifications, your legal skills, and your personal integrity. We believe that you are ready for this challenge.

Thank you for your willingness to serve, and welcome to the Department of Justice.

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

There were a few good things about Rosenstein’s presentation:

  • As I had predicted would happen under Barr, he improved the tone by ditching the overt appeals to White Nationalism, racist dog whistles, and misogyny present in most of Sessions’s rhetoric:
  • He also dropped the vicious, disingenuous attacks on the private bar that were a staple of Sessions’s anti-immigrant screeds;
  • He at least acknowledges that immigrants are a large permanent part of our society, although downplaying the truth that, contrary to Stephen Miller and other Trump restrictionists, we are, in fact, a “nation of immigrants;”
  • He acknowledges the obligation to be “fair to all who desire to come here — whether they live south of our border or an ocean away;”
  • He at least grudgingly recognizes that all who come here are entitled to certain protections under our legal system regardless of the circumstances of entry (something that the DOJ and the Administration actually have failed to respect in practice);
  • He also recognizes another truth that his Department often chooses to ignore — “Justice is not measured by statistics.” — Indeed, it is not — so why have mindless “quotas” that nobody working in or familiar with the system would have recommended? Why cite largely meaningless statistics about the number of individuals who would like to come here but never will?

But, there was also lots NOT to like:

  • Rosenstein mangles the oath of office; federal employees like Immigration Judges swear to uphold the Constitution against all enemies foreign and domestic — they DON’T swear to uphold or carry out the policies of the Attorney General (many of which have actually been found in violation of the law);
  • He creates a bogus “test” of “legal entry” as a demonstration of “fealty to our country;” there is no such equivalency or “second class citizenship.” — Although our system understandably often favors those who enter legally, there are a number of provisions that allow individuals who did not do so to eventually be granted citizenship, including those who are granted asylum; I am aware of no information that shows that manner of entry into the U.S. has any effect on one’s “fealty” or performance as a citizen; indeed, as a “native born U.S. citizen,” Rosenstein, like many of us, did nothing whatsoever personally to show his “fealty” or “earn” his citizenship — he was just lucky like we were;
  • Rosenstein keeps referring to “enforcement;” but Immigration Judges are NOT “law enforcement officers;” they are supposed to be fair and impartial quasi-judicial adjudicators; “enforcement” is the job of DHS and other parts of the DOJ (a glaring conflict of interest);
  • DHS officials are not the Immigration Judges’ “colleagues” to any greater extent than are lawyers in private practice or the individuals coming before the Immigration Courts; DHS is a “party” before the court and should be treated as such;
  • Rosenstein mis-states the history of our refugee laws. While the 1951 Convention was a response to World War II, the U.S. never became a party. We did sign the 1967 Protocol which was intended to update and expand the Convention and refugee law and move it beyond the immediate post-WWII aftermath. Our first codification of refugee and asylum law, the Refugee Act of 1980, was specifically intended to eliminate the types of ideological and geographical biases that had previously been a facet of our law; Rosenstein wrongfully implies that judges should interpret  refugee law with a focus on a bygone era rather than considering refugee law, in the dynamic, protection-oriented manner it was intended, in the contexts of today’s world, where persecution based on gender is one of the major refugee producing factors;
  • Rosenstein cites televideo as a helpful “innovation;” televideo is hardly new; but the often inept way in which it has been implemented and used by EOIR means that it often has actually fueled, rather than solved, “Aimless Docket Reshuffling” as shown in this very recent report from Beth Fertig at WNYC: https://immigrationcourtside.com/2019/03/15/beth-fertig-the-gothamist-mismanaged-immigration-courts-failed-technology-results-in-cancelled-hearings-more-aimless-docket-reshuffling-that-needlessly-impedes-due-process-ad/ Most of us who have actually worked in the system would say that while better televideo and a corps of “senior” and “reserve” judges might prove useful in many circumstances, they are least suitable and helpful for contested merits asylum cases;
  • Rosenstein neglects to mention the glaring failure of DOJ/EOIR to deliver on an even more important piece of technology for both the judges and the parties: e-filing which has been under development for nearly two decades without producing a functional product — a stunning piece of administrative incompetence by any standard and one that has helped contribute to the “Aimless Docket Reshuffling” that plagues this dysfunctional system;
  • Rosenstein use of the term “generous” to describe legal immigration policy under Trump is outrageous; in a time of a growing worldwide refugee crisis, this Administration has cruelly and irrationally reduced refugee admissions to the lowest rate since the enactment of the Refugee Act of 1980, while discouraging and placing bureaucratic roadblocks to discourage other forms of legal immigration, and intentionally misconstruing and perverting the law to make it more difficult for abused women from Central America to qualify;
  • Rosenstein fails to acknowledge that “forced migrants” are just that; they often enter illegally because they have little other choice, particularly when the Administration intentionally “slow walks” the applications of those who apply at legal ports of entry, forces those who have shown “credible fear” to remain in dangerous conditions in Mexico, and encourages smugglers to “turn in” individuals between ports of entry to avoid the Trump Administration’s short-sighted and arguably illegal policies;
  • Walls are not a symbol of strength as posited by Rosenstein; they are symbols of fear and loathing; in the USSR’s case it was directed at their own citizens; for the Trump Administration, walls are symbols of fear of Mexico, Mexicans, other Latin Americans, immigrants generally, and inferentially the real target — Hispanic citizens and all people of color in the U.S.;
  • Rosenstein’s final piece of jaw-dropping hypocrisy is to solicit solutions from the “new judges” to problems thrust on them by his Department’s malicious incompetence. Gimme a break, Rod! This Administration, like the last several, has made a point of ignoring any solutions generated from those who actually hear the cases in favor of those imposed to meet political goals that often undermine due process and judicial efficiency. Just ask the NAIJ how “receptive” the Trump DOJ has been to constructive suggestions. Ask almost any Immigration Judge about the idiotic and demeaning “case quotas” imposed on them over their objections. Moreover, this Administration has been “outed” in FOIA requests and court cases for  ignoring well-supported fact-biased recommendations of career civil servants with expertise in various fields in favor of a preconceived racist, White Nationalist, restrictionist political agenda. Save your breath and ideas folks, for a future time after we get some much-needed “regime change” and the return of rational, unbiased, solution-oriented administration of justice instead of ideologues and their apologists like Rosenstein.

Rosenstein is on his way out the door at the DOJ.  He’ll leave behind a mixed legacy. He’ll deserve great credit for protecting the Mueller investigation from Trump’s various attempts to interfere and compromise it. On the other hand, he drafted the infamous “pretext memo” which was part of the ultimately unsuccessful attempt to cover up Trump’s real real reason for firing FBI Director Jim Comey.

His failure to stand up for judicial independence, fairness, and due process for vulnerable individuals coming before our U.S. Immigration Courts and his continuing defense of the Administration’s indefensible and harmful White Nationalist immigration agenda will go down as one of his lesser moments.

America needs an independent Article I U.S. Immigration Court where judges act fairly and impartially and owe allegiance to the U.S. Constitution, not the Attorney General or any other political official.

PWS

03-18-19

 

 

DOJ SWEARS IN 31 NEW IMMIGRATION JUDGES WITHOUT ACKNOWLEDGING ITS ROLE IN CREATING AN UNMANAGEABLE BACKLOG! — Honesty & Admitting Own Mistakes Would Be A Prerequisite To A Rational Backlog Reduction Program! — Sessions Gone But System Remains FUBAR!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=7cb1d269-89ec-411d-ab01-e88041025ddf

Molly O’Toole reports for the LA Times:

WASHINGTON — A girl in a pink bow stood proudly center stage Friday at the Justice Department, dwarfed by two statues and adults in black judicial robes behind her.

“We need more judges,” quipped James McHenry, director of the executive office of immigration review, which administers the country’s clogged immigration courts. “We’re now recruiting children too.”

Thus went the ceremony for officials, family and friends to welcome 31 new immigration judges, the second-largest class ever.

The Trump administration has hired more immigration judges in two years than was done in the previous seven years, according to Deputy Atty. Gen. Rod Rosenstein, who plans to retire soon.

But the hiring surge is unlikely to resolve the backlog of nearly 830,000 immigration cases that continues to grow.

Rosenstein said the new judges — on top of 414 currently serving — will help cut the vast logjam.

“Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties,” Rosenstein said.

It will also depend on money. McHenry notified immigration court staffers last week that budget shortfalls had blocked the hiring of additional judges and would delay recruitment of court support staff, according to BuzzFeed.

The caseload worsened significantly during the 35-day government shutdown over President Trump’s demands for a border wall. About 400 immigration judges were furloughed, and tens of thousands of hearings were canceled or delayed, exacerbating delays that now exceed two years on average.

Amid continued fighting with Congress over immigration and border security funding, the White House has requested money for 100 additional teams of immigration judges for 2020.

Migrants routinely wait years for a final determination of whether they can stay in the country, according to a Homeland Security inspector general’s report released Thursday.

In contrast to regular U.S. courts, immigration courts are not in the judicial branch of government. The judges are classified as government attorneys at the Justice Department and they ultimately report to Atty. Gen. William Barr.

The Trump administration has prioritized deporting thousands of migrants in detention and preventing their release into the United States while they await court hearings.

But because of limited detention space and record numbers of asylum seekers and Central American families adding to the backlog, Trump officials have released some detained migrants.

Some administration policies also have proved counterproductive to reducing the backlog, according to some current immigration judges, former officials — and McHenry.

Boosting enforcement efforts without increasing resources for immigration courts “could seriously compromise” their “ability to address [the] caseload and greatly exacerbate the current state of the backlog,” McHenry wrote to Rosenstein in October 2017.

In a plan that officials said would reduce the backlog, the Justice Department at the time instituted a quota for immigration judges and forced them to reopen closed cases. The caseload grew by more than 230,000 new cases last year, however.

McHenry sought to steel the new judges on Friday, saying they were entering into “the most significant and emotionally charged debate over immigration for some time.” He even read out a “pause for tense laughter.”

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

Rosenstein continues to play the “blame shame game.” Because the Trump Administration and the DOJ have given “built to fail” and counterproductive enforcement “gimmicks” priority over fixing the glaring due process problems in Immigration Court, and because today’s Immigration Judges have been forced to function more like “gerbils in a wheel” than independent judicial officials, the backlog is likely to continue to grow no matter what the individual Immigration Judges do. Indeed, they have been stripped by this Administration of not only their dignity as judges but also the last vestiges of control over their own dockets.

To his credit, McHenry actually tried to tell his handlers at DOJ that some of their misguided, enforcement-driven, restrictionist “backlog reduction” efforts would make the backlog even worse. He was ignored. And, the backlog has exponentially increased under this Administration — more judges in the hands of an Administration dedicated to “malicious incompetence” in the field of immigration has simply resulted in more backlog.

The one thing that judges can still control — impartial professional due process in each individual case coming before them — has been buried by this Administration’s dishonest rhetoric and “just pedal faster” invectives. But, any Immigration Judge who wants to succeed in real life terms, save lives, sleep at night, and be remembered by history as part of the solution not the problem will largely “tune out” the DOJ’s highly disingenuous babble about that which they can’t control and concentrate instead on guaranteeing fairness and due process in each individual case coming before her or him.

PWS

03-17-19

NQRFPT: Due Process, Administrative Competence, Common Sense MIA From Initial “Return to Mexico” Hearings, Forcing Frustrated Judge Into A Round Of “Aimless Docket Reshuffling!”

NQRFPT = “Not Quite Ready For Prime Time”

MIA = “Missing in Action”

ADR = “Aimless Docket Reshuffling”

https://www.sandiegouniontribune.com/news/immigration/sd-me-remain-in-mexico-hearings-20190314-story.html

Kate Morrissey reports for the San Diego Union Tribune:

Two of the three asylum seekers who were supposed to show up for the first immigration court hearings under the “Remain in Mexico” policy did not make it across the border on Thursday to appear.

After the Homeland Security Secretary announced what she called a “historic” program, known officially as Migrant Protection Protocols, in December, many wondered — and worried — about the logistics of shuttling migrants back and forth across the border for court hearings.At least one of the people who had been returned to Tijuana after asking for asylum at the San Ysidro Port of Entry missed the court hearings because of what Assistant Chief Immigration Judge Rico Bartolomei called a “glitch” in the scheduling system.

Court cases for the program were supposed to start next Tuesday, but somehow cases got scheduled for this Thursday, Bartolomei explained. At first, the court tried to reschedule those hearings for Tuesday but realized it wouldn’t have a way to communicate that effectively with the asylum seekers in Mexico.

The issue was that when the court rescheduled to March 19, anyone who called its toll-free number to check for court date updates thought that the hearings would be on March 19. That happened in the case of one Honduran woman who had Los Angeles-based attorney Olga Badilla representing her.

Badilla explained to the judge that she had only learned the day before that the hearing had moved back to March 14 and that her client hadn’t found out in time to be at the port of entry at 9 a.m. She arrived a couple of hours later, but Customs and Border Protection officers wouldn’t let her into the U.S. for her hearing.

“She’s present at the port of entry and ready to come in,” Badilla told the judge, asking for the court’s help. “It’s an unusual situation given the circumstances.”

Aguilar said the judge should order the woman deported in her absence.

Bartolomei denied that motion, saying that the woman had received “insufficient notice” of the hearing. Instead, he scheduled a future date with Badilla to turn in the woman’s asylum application.

Though the woman was given another chance to show up for court, she ran into more problems down at the border. Her permit to stay in Mexico was on the verge of expiring in anticipation of her crossing into the U.S. for court. If she had crossed and returned again, she would likely get a new one. Without entering the U.S., she was about to become deportable from Mexico.

When court ended for the day, Badilla went to try to help her client.

The other person who didn’t show up for court, a 24-year-old man from Honduras, had also had his case rescheduled through the court’s glitch.

ICE attorney Aguilar again moved to have the man ordered deported.

Bartolomei pushed the ICE attorney about whether it made sense to order someone deported from the U.S. while they are still in Mexico. He asked if it made more sense to consider the person’s application for admission withdrawn.

According to immigration attorney Tammy Lin, a withdrawal would limit potential restrictions on the man’s ability to come to the U.S. in the future. A deportation order would make it much more difficult for the man to come to the U.S.

During the conversation, Bartolomei sighed audibly, weighing the options before him.

Then he decided to reschedule his case for the 19th to see if the man showed up then. Since he didn’t have an address to send the new hearing notice to, he gave it to the Department of Homeland Security to pass on to the man.

The one person who did show up did not have an attorney. Also from Honduras, the man arrived at El Chaparral plaza outside the port of entry well before 9 a.m. A volunteer from a legal services organization that supports migrants in the plaza every morning before they ask for asylum saw him and escorted him to the gate inside the port that marks the entry to the U.S.

He waited in line, shuffling down the spiral walkway in a mix of commuters, shoppers and friends returning from trips abroad. When he got to the front of the line, a Customs and Border Protection official held him to the side to wait for the other two who were supposed to come.

He was nervous, he said.

A few minutes after 9 a.m., several CBP officers and two plainclothes officials took him into the U.S. Officers from Immigration and Customs Enforcement transported him from the port of entry to the office building in downtown San Diego that houses the immigration court.

He arrived at the court before noon and sat in a corner of the back row of benches, head bowed.

When it was his turn to face the judge, he spoke softly into the microphone and watched attentively as Bartolomei explained each of the documents he had received.

Bartolomei asked him if he wanted more time to find an attorney.

Yes, the man replied.

The judge granted him another month to try to find someone to help him and told him he would likely be taken back to Mexico again.

“I know it will be difficult to try to get an attorney from there,” Bartolomei told him, urging him to try his best to find a lawyer to take his case.

When his turn was over, ICE officers quickly whisked him away, back to the port of entry.

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

Notice will continue to be an issue in this ill-designed process. It actually appears that it will be impossible to properly serve anyone at a “last known address” in Mexico. Thus, any in absentia hearings should ultimately be vacated for lack of notice and will have to be re-started. That’s what “ADR” is all about.

The ICE Attorney was both unhelpful and probably unethical when he insisted on frivolously moving for an “in absentia” order given the obvious scheduling and notice issues attributable to his agency’s choice of this “historically” goofed up and perhaps illegal method of proceeding. Unwillingness to assume any responsibility for their own frequent screw ups and predictably bad policy choices is certainly a “hallmark” of the Trump Administration!

Once of the things that made the Arlington Immigration Court run as well as it did during my tenure was the sense of justice, common sense, practicality, and overall cooperation and helpfulness of the ICE Chief Counsel’s Office in working with the Immigration Judges and private bar to “keeping the ball moving down the field.” Apparently deprived of such a professional approach by the mindless “due process and common sense be damned policies” of this Administration, today’s Immigration Judges face additional roadblocks in promoting efficiency and fairness in accordance with the law. No wonder the backlogs are growing exponentially even with more Immigration Judges on the bench!

Here’s how might a “due process and efficiency-oriented system” could have dealt with the same issues:

  • Work with the private sector to obtain local counsel for individuals who have passed the “credible fear” process;
  • Find out how long it will take the lawyer to prepare the application for asylum for filing with the Immigration Court;
  • Choose a compatable date for filing at the “Initial Master” from a computerized list of  “available first Master dates” on Judge Bartolomei’s calendar made available by EOIR;
  • Release the applicant to a local nonprofit who will help insure that he or she understands the system and the importance of keeping attorney meetings and appearing before the Immigration Court as scheduled;
  • At the first Master, the attorney files the completed asylum application with Judge Bartolomei, and he assigns an Individual Hearing date;
  • Presto! A system that works, uses court and judicial time wisely, and promotes fair and efficient results.

Contrast that with the mindless system described above. The key: under the current system everybody has wasted time and effort, particularly Judge Bartholomei, but without getting any closer to assigning an actual Individual Hearing date than on the day the applicant passed “credible fear.”

That’s how Government-created “bogus emergencies” happen. It’s really important that folks like Kate keep reporting on the “nitty gritty” of the Trump Administration’s “malicious incompetence” and how it is destroying and degrading our immigration and justice systems on a daily basis.

Undoubtedly, this Administration will attempt to shift blame for its own predictable failures to the victims — asylum seekers, their lawyers, and Immigration Judges. It’s important that the Trump Administration be held fully accountable, both in the present and for history, for the consequences of their terrible White Nationalist restrictionist agenda.

PWS

03-16-19

 

DORIS MEISSNER @ MPI: Administration’s Failed Border Enforcement Policies Anchored In Past & Distorted By Xenophobia — Most Of Today’s Arriving Migrants Seek & Deserve Safety & Protection Unavailable In “Failed States” Of Northern Triangle!

https://www.washingtonpost.com/outlook/2019/03/14/real-border-problem-is-us-is-trying-stop-wrong-kind-migrants/

Doris writes in the Washington Post:

No matter what happens with Thursday’s vote on President Trump’s declaration of a national emergency, the real root of the difficulties at the U.S.-Mexico border won’t be addressed.

The whole approach the U.S. government takes at the border is geared to yesterday’s problem: Our border security system was designed to keep single, young Mexican men from crossing into the United States to work. Every day, more evidence mounts that it’s not set up to deal with the families and unaccompanied children now arriving from Central America — in search not just of jobs, but also of refuge. The mismatch is creating intolerable humanitarian conditions and undermining the effectiveness of border enforcement.

From the 1960s to the early 2000s, the reality of illegal immigration at the southwest border was overwhelmingly economic migration from Mexico. The U.S. responded, especially once the Sept. 11, 2001, attacks prompted tighter security everywhere, by building up a well-resourced, modernized, hardened border enforcement infrastructure, with more staff and more sophisticated strategies. Successive Congresses and administrations under the leadership of both Democrats and Republicans have supported major investments in border security as an urgent national priority. About $14 billion was allocated in fiscal year 2017 for U.S. Customs and Border Protection, a steep rise from $9.5 billion a decade earlier.

From a peak of 1.6 million apprehensions in fiscal 2000 — with 98 percent of those apprehended Mexicans — border apprehensions have fallen by about three-quarters, to 397,000 last year. More Mexicans now return to Mexico annually than enter the United States. The turnaround has been dramatic and is due to the combined effects of economic growth, falling fertility rates and improved education and job prospects in Mexico; job losses in the United States surrounding the 2008-2009 recession; and significant border enforcement successes.

At the same time, an entirely different type of migration became more common. Beginning in 2012, the number of unaccompanied minorsfrom Central America — principally El Salvador, Guatemala and Honduras — crossing the border illegally jumped sharply. Modest numbers of such migrants had been arriving for many years. However, by 2014, the arrival of unaccompanied children spiked to more than 67,000 and, for the first time, the number of non-Mexican apprehensions exceeded those of Mexicans.

By 2016, the Central American flows became predominantly families with young children. Some were fleeing their countries in search of economic opportunity, but many were seeking safety and protection from widespread violence and gang activity that especially targets young people approaching or already in their teens.

Last year, 40 percent of border apprehensions were either of migrant families or unaccompanied minors, as compared to 10 percent in 2012. The proportion has risen to 60 percent in recent months, and just-released numbers show 66,450 apprehensions last month, the highest February total in a decade.

The important story, however, is not so much the numbers, which remain well below earlier peaks, as it is the change in the character of the flow. Today’s migrants include especially vulnerable populations, a large share of whom are seeking safety. As my organization reported recently, more than one in three border crossers today is an unaccompanied child or asylum seeker, up from approximately one in 100 a decade ago.

Yet the U.S. government’s posture has not been recalibrated, remaining pointed toward an illegal immigration pattern that has largely waned.

Today, many people who cross the border illegally actively seek out and turn themselves in to enforcement officials so they can apply for asylum. Others have been presenting themselves at ports of entry, seeking protection. Ground sensors, camera towers and similar surveillance technology and infrastructure are less helpful as a result.

Border Patrol facilities are designed for holding people only for short periods because that used to be all they needed to do: Most Mexicans who are apprehended are processed and returned across the border within hours. The same is not the case for Central Americans and others from noncontiguous countries, increasing numbers of whom are arriving exhausted and in ill health after lengthy, arduous journeys. They can’t simply be driven back to Mexico, because they’re not from there in the first place.

Border Patrol stations are ill-suited for dealing with these vulnerable populations, as the tragedy of the two young children who died recently in Border Patrol custody sadly illustrates. The situation has been further taxed by the increasing numbers of what the Border Patrol refers to as large-group arrivals: In the first five months of this fiscal year, the Border Patrol encountered 70 groups of more than 100 migrants crossing illegally, up from 13 last year and two the year before.

Asylum officers and immigration judges, not Border Patrol and port-of-entry inspectors, make the decisions in asylum cases. The asylum and immigration court systems don’t have anywhere near the sustained funding spent on border enforcement programs. As larger shares of migrants have arrived claiming asylum, workloads have ballooned into huge backlogs as a result. And even in cases where resources have been provided, they are not always used: Congress has allocated funding for 534 immigration judges, and yet only 427 are serving. Children and families are vulnerable to physical and emotional health dangers that argue for minimal detention periods, but their cases can take months or years to decide. And policies that precipitated the separation of more than 2,700 children from their parents have only added to the trauma.

These and other factors point to the need for dramatically different border management policies and budget decisions from those made in the past, largely successfully, to deter illegal inflows from Mexico.

Testifying in Congress last week, Homeland Security Secretary Kirstjen Nielsen said the situation at the border has reached a “breaking point.” There is a crisis, but it is a crisis of an asylum system that is severely overburdened by the major uptick in humanitarian protection claims.

The asylum system can only work effectively with timely, fair decisions about who is eligible for protection — and who is not, and therefore must be returned to their country of origin. More broadly, just as improved conditions in Mexico have been key to reducing illegal crossings of Mexicans, the best way to prevent Central Americans from fleeing their native countries must include attacking the violence, corruption and poverty driving them to leave home.

Yet the Trump administration has curtailed access to asylum and ended a program allowing some Central Americans to apply for protection from within the region to keep pressure off the border. Most recently, the administration rolled out a new policy that forces some asylum seekers to stay in Mexico in highly uncertain conditions to await asylum decisions, which they are told may take up to a year. Such measures seem only to be spurring on prospective migrants to journey to the U.S. before policies get even more restrictive.

This is not to say there are easy answers. Dealing with mixed flows is a challenge not only for the United States but for other major migrant destinations in Europe and beyond. Building systems that can sift through mixed flows to fairly and efficiently provide protection to those who truly qualify and identify and remove those who don’t is difficult.

But course corrections are well past due.

Steps that could be taken now include devoting money and applying new strategies to the asylum and immigration court systems so they can effectively handle a burgeoning caseload, rather than greatly narrowing who can access them. Building suitable Border Patrol facilities for receiving children and families and training agents and other staff to spot and act upon medical and other emergencies would also be required. The government could foster networks of community-based monitoring and case management programs with legal representation that provide alternatives to detention so migrants are detained for minimal periods, at less overall expense and are treated more humanely, but still appear for their asylum interviews and deportation hearings.

Ramped-up anti-smuggling initiatives and intelligence cooperation with neighboring countries are a must. Affected communities on both sides of the border need support and new partnerships with government actors, especially in the face of caravans, a method of movement on the rise among Central Americans to gain safety in numbers but posing new logistical and political difficulties for governments. And U.S. policies must give greater priority to our geographic neighborhood in developing longer-term solutions with Mexico and Central America that are in our joint national interests.

Rather than unproductive political fights over walls and national emergency declarations, these steps would go a long way to restoring order at the border. It is past time for policymakers and the public to recognize there are no quick fixes but that, even with migrant arrivals on the rise, the border can be managed through an array of proven policy initiatives.

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It’s no surprise to me that an Administration committed to a racist, White Nationalist political agenda, rather than governing in the public interest, will consistently fail to solve problems and will govern incompetently.

Families who turn themselves in to the Border Patrol at the first opportunity to apply for asylum are by no stretch of the imagination “law enforcement issues” except to the extent that Trump’s inappropriate unwillingness to process them fairly at ports of entry and to establish a robust refugee program for the Northern Triangle has created a misdirection of law enforcement resources.  To claim otherwise is totally disingenuous.

PWS

03-15-19

RADLEY BALKO @ WASHPOST EXPOSES THE RESTRICTIONISTS’ RACIALLY-DRIVEN BOGUS NARRATIVES: The thing to remember here is the only consistent principle behind immigration restrictionism is opposition to immigrants.”

https://www.washingtonpost.com/opinions/2019/03/13/immigration-opponents-any-old-argument-will-do/

Balko writes:

For immigration opponents, any old argument will do

Opinion writer

March 13 at 2:03 PM

David Frum’s cover essay in the latest issue of the Atlantic calling for immigration restrictions is generating some well-deserved scorn. Even his central premise — that if liberals don’t enforce immigration laws, the nation will turn to fascists — is bedeviled by reality. President Trump, Fox News and the Republican Party tried with all their might to demagogue immigration before the midterm elections. The GOP got clobbered. Democrats did especially well in elections in New Mexico, Texas, Arizona and California, the states that border Mexico. In fact, all nine members of Congress who represent the districts along the Mexico border oppose funding for Trump’s border wall.

According to Gallup, 67 percent of Americans think immigration levels should either stay the same or increase, and 75 percent think immigration is a “good thing,” an all-time high. Over the past two years, the percentage who want to restrict immigration from current levels has averaged 30 percent, the lowest figure since Gallup began asking this question in 1965. An NBC News-Wall Street Journal poll found that 61 percent of Americans think immigration helps the country more than it hurts, also an all-time high, and an incredible 49-point swing from 2005. There’s virtually no evidence that support for more immigration is a political liability, other than in Frum’s mind. At worst, an immigration supporter will lose the 30 percent of voters he or she would have lost anyway.

Frum’s essay also includes some bizarre, anti-historical observations. This one might be the strangest: “America was built on the revolutionary idea, never fully realized, that those who labor might also govern—that every worker should be a voter.” The United States was, of course, actually founded on the still-revolutionary — but not nearly as revolutionary — idea that every white, male landowner should be a voter. We weren’t even ready to admit that the people doing the most work at the time were full human beings. Not only was slavery thriving at the American founding, not only was it acknowledged and enshrined in the Constitution, but the effort to preserve the institution also formalized the bond between race, second-class citizenship and servitude. Even the Declaration of Independence, the founding document, was altered from Thomas Jefferson’s first draft to omit the word inherent as a descriptor of our rights, a nod to the fact that even the Enlightenment thinkers weren’t quite ready to recognize the existence of inalienable rights outside their immediate social status, much less to slaves.

In another fit of historical ineptitude, Frum pines for the years 1915 to 1975, a period of immigration restrictionism, which he bizarrely describes as the “years in which the United States became a more cohesive nation.” (Frum also conveniently leaves out how those policies were grounded in racism.) The economist Noah Smith obliterated this argument in a pretty devastating Twitter thread. This was a period of Jim Crow, lynching, red scares, the Depression, race riots, labor rights, mass incarceration, racial assassinations, internment camps and domestic terrorism. Under no circumstances would you describe it as an era of broad social cohesion.

If we wanted to look at the single metric most indicative of social cohesion, we’d probably look at murder rates. The U.S. homicide rate began to increase in the mid-1960s, then generally rose until it peaked with the crack epidemic in the early 1990s. Immigration began to increase in the early 1970s, but really began to soar in the 1990s. From about 1994 to about 2014, undocumented immigration soared while violent crime spiraled.

In fact, from about the late 1990s on, nearly every social indicator in the United States began to move in an encouraging direction — dropout rates, teen pregnancy rates, divorce rates, juvenile crime, rape, property crimes, you name it. Meanwhile, immigration boomed. I don’t think immigration caused all of those good things to happen. But Frum’s argument, that immigration unravels social cohesion, is simply contradicted by the data.

Frum goes on to list of a number of consequences of modern immigration, most of which Frum thinks bode ill for the sort of society to which Frum believes we should be aspiring. But most of the negative consequences Frum lists aren’t the result of immigrants themselves, but of people who share Frum’s view that we have too many immigrants. The line I quoted above, for example, is part of a broader argument Frum makes — because undocumented immigrants operated outside of the law, they aren’t afforded the same legal protection, social status and political representation as citizens and legal residents. But undocumented people live outside the law largely because (a) there is demand here for low-skilled workers, (b) it is virtually impossible for low-skilled workers to come here legally and (c) people who share Frum’s policy preferences have made it politically difficult to grant those who do come any sort of legal protection or political representation.

Frum also cherry-picks his data. He argues, for example, that employers in immigrant-heavy industries are shirking their safety obligations because immigrants lack the political power to demand or enforce regulations. He writes:

Forestry, fishing, and farming are three of the most dangerous industries in the United States. They are 46 percent reliant on immigrant laborers, half of them undocumented. (Documented and undocumented immigrants together make up only 17 percent of the U.S. workforce as a whole.) Building and grounds maintenance is surprisingly dangerous work: 326 people died in 2017. Some 35 percent of grounds workers are immigrants. About 25 percent of construction workers are immigrants, but immigrants supply almost half the workers in the most dangerous areas, notably roofing and drywalling. When so many workers in a job category toil outside the law, the law won’t offer much protection.

Note that Frum moves freely between percentages and raw numbers. Building and grounds maintenance may be “surprisingly dangerous work,” but without some other figures for context, 326 deaths is a meaningless statistic. How does that compare to other professions? According to the Bureau of Labor Statistics, the most dangerous class of occupations falls under the heading “transportation and moving materials.” This group of jobs accounted for nearly a quarter of worker deaths in 2017 — over four times as many workers died in that field as in maintenance. Within that field, the most dangerous sub-field is called “heavy tractor and trailer truck drivers.” And according to a 2012 American Community survey, immigrants make up less than 16 percent of truck drivers. If we look at rates, Frum’s argument also falls flat. The highest fatality rate is comparatively immigrant-spare transportation, at 15.9 deaths per 100,000 workers. Immigration heavy maintenance comes in at 6.6 deaths per 100,000.

There is some evidence that immigrant representation in even these fields is growing, as native-born Americans move out of blue-collar jobs and into more lucrative occupations. But Frum’s policy prescriptions will only exacerbate the very problems that allegedly worry him. Remember, Frum also suggests curbing legal immigration. Contrary to the claims of restrictionists, people don’t come to the United States to get free welfare and health care. Undocumented immigrants contribute more to the economy than they take out, and are less reliant on social welfare than native-born Americans. People come to the United States — legally and illegally — when there is demand for their labor. When the jobs dry up, immigrants stop coming. If demand persists, and the number of legal avenues for immigration continue to dwindle, the immigrants won’t stop coming, they will just increasingly stop coming legally. That means more — not fewer — people in the shadows, unrepresented, unprotected and un-franchised.

But I think my favorite bit of Frum-ian logic comes when discussing the opioid epidemic:

Without the immigrant workers less prone to abuse drugs than the native-born, American elites might have noticed the opioid epidemic before it killed more Americans than died in the Vietnam, Korean, and Iraq Wars and the 9/11 attacks combined.

This is nonsense, on a number of levels. First, there’s little evidence that American elites “missed” the opioid epidemic. The Centers for Disease Control and Prevention has been dutifully publishing overdose statistics each year, as it always has. I’ve talked to several medical examiners in recent years who believe the epidemic may even be overstated. Overdose isn’t always easy to diagnose, and because there’s a nationwide shortage of medical examiners, cause of death isn’t always the product of careful medical analysis so much as a rough guess by an elected coroner with little or no medical training. This isn’t to say that there’s nothing to worry about, but ask any pain patient who is struggling to find treatment — the opioid crisis has certainly not gone unnoticed.

More to the point, Frum’s argument here is a bit of rhetorical jujitsu. The nativist line has long been that immigrants — particularly those who are unskilled and undocumented — are diseased, crime-ridden and drug-addicted. Faced with evidence that immigrants are lesslikely to be addicted to opioids, Frum flips an asset into a liability. Now, the fact that immigrants don’t abuse drugs unfairly distracts elite attention from the native-borns who do.

It reminds me of one of my favorite-ever anti-immigration arguments, from longtime nativist Mark Krikorian. Back in 2004, Krikorian lamented over a Boston Globe story about how dedicated, hardworking immigrants were robbing native-born American teenagers a rite of passage — the privilege of slacking off at their first job. He wrote:

One economist said employers “like the fact that immigrants can work more hours and more shifts than teenagers.” A job counselor said “Typically when kids apply for a summer job they might want a week off to go to camp or do something else. I tell them, ‘You can’t do that. You are up against someone who is going to be there every day and you need to deal with that.’” As a result, the percentage of teenagers holding jobs is the lowest it’s been since statistics started being compiled in the 1940s.

Is it healthy for the future of our society to freeze our children out of low-wage, rite-of-passage jobs? When I was younger, I washed dishes in restaurants, packed tomatoes, did lawn work — this kind of thing is essential if we are to preserve a middle-class society that values work, rather than the Old World model that mass immigration is pushing us toward, where only inferiors ever get their hands dirty.

Of course, Krikorian also regularly argues that the same immigrants employers prefer because of their dedication and work ethic are simultaneously a drain on the welfare system.

The thing to remember here is the only consistent principle behind immigration restrictionism is opposition to immigrants. As a nativist, you’re free to argue that immigrants are both lazy and hardworking. They’re both assimilating too quickly and refusing to assimilate. They’re both violent drug pushers who are crowding our prisons, and they’re teetotaling law-abiders whose good citizenship is unfairly diverting attention from overdose deaths and mass incarceration among the native-born. Pick and chose these points as you need them. Any old argument will do.

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

Balko “outs” the kind of racist garbage that dangerous disingenuous dudes like Jeff Sessions, Stephen Miller, Steve Bannon, Kris Kobach, Steve King, and their many apologists and enablers in the GOP have been spewing forth for years. Only now it’s been elevated to national policy, repeated by Trump, Administration dunderheads like Kristjen Nielsen, Sarah Sanders, L. Francis Cissna, E. Scott Lloyd, and even some supposedly brighter career officials at DHS who should know better. A very sad state of affairs, indeed!

The good news: The “high approval rate” for immigrants shows that the bogus White Nationalist narrative that appears to have helped Trump get elected might be failing this time around. On the other hand, Trump’s approval rate remains high among Republicans. That’s pretty disturbing!

PWS

03-15-19

“DOJ MISMANAGEMENT CENTRAL:” In Failing U.S. Immigration Courts, Political Interference & Idiotic Quotas Push 1.1 Million Plus Case Backlog Higher!

https://apple.news/ASsFWST9rQTSnqDmrVtuZ2Q

Immigration judges say quotas will increase backlog of cases

LOS ANGELES — Immigration judges say a new quota system threatens to increase an already overwhelming backlog of cases in U.S. immigration courts.

The system pushes for judges to close 700 cases a year and calls for them to be evaluated on that quota.

Immigration Judge Ashley Tabaddor said in a March 12 letter to lawmakers that the change would create a perception of government interference in the handling of cases that will lead more immigrants to file appeals.

Tabaddor, who heads the National Association of Immigration Judges, says the move could also flood federal courts with cases.

It can take years to get a decision in the immigration courts, which have more than 800,000 pending cases.

The letter followed testimony last week before a House subcommittee by James McHenry, who oversees the nation’s immigration courts.

A message sent to immigration court officials was not immediately returned.

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

Apparently, it’s going to take a complete collapse of not only the U.S. Immigration Courts but the entire Federal Judicial System (certainly on the horizon as the Immigration Courts’ systematic failure to provide expertise, impartial decision-making, Due Process, and fundamental fairness is pushing more and more cases into the Article III Courts). Unfortunately, to date, both Congress and the Article IIIs seem largely willing to watch disaster unfold, rather than taking the bold remedial action required to wrest the Immigration Court System out of the clutches of a spectacularly unqualified Department of Justice and reconstitute them as an independent court system where the standards of Due Process are taught, applied, and enforced!

In the meantime, lives are being needlessly, sometimes intentionally, endangered each day by our failure to live up to the U.S. Constitution!

PWS

03-14-19

 

ADAM R. TAYLOR @ SOJOURNERS: Trump’s Immoral Budget!

https://sojo.net/articles/misplaced-moral-priorities-trumps-2020-budget-proposal

Adam R. Taylor writes in Sojourners:

COMMENTARY

By Adam R. Taylor3-14-2019

Budgets are moral documents: They signal what and who we prioritize and seek to protect or uplift. As Christians we can disagree on many issues, but it should be hard to argue that there is an overriding call in the Bible to demonstrate a particular concern for the poor and prioritize the welfare of the vulnerable. This is the moral test by which we must evaluate every budget, perhaps most importantly the federal budget. Based on this test, the Trump administration’s proposed budget priorities for Fiscal Year 2020 fail miserably and must be rejected.

While the president’s budget proposal is increasingly not much more than a messaging document, it represents the first important salvo in the budgetary process, a process that will result in profound, and in some cases life and death, implications for people and communities across the country and world.

That is why we are asking you to join us in sending a clear and resounding message to every member of Congress that they must reject the deeply misguided and unjust priorities in the president’s budget and instead support a moral budget.

Though many media reports will gloss over this or avoid saying so, Trump’s budget priorities will disproportionately hurt the poor and communities of color, which will simply reinforce structural racism and exacerbate economic hardship..

The reason given for the draconian cuts being contemplated to programs like SNAP (food stamps) and Temporary Assistance for Needy Families (TANF) is reducing the annual budget deficit. At the same time, taxes are as low as they’ve been in decades for the richest 1 percent, and the Trump proposes increasing the defense budget to $750 billion next year. The only place to find deficit reduction then, if cutting defense spending or raising taxes on the wealthiest Americans and corporations is off the table, is to decimate the ability of the non-defense part of the government to operate effectively and provide a social safety net. That non-defense spending already is only about 15 percent of the federal budget — a historically low level of 3.2 percent of GDP. It is from this already tiny pool that Trump’s budget proposal wants to extract the vast majority of its deficit reduction.

Here are a few of the most concrete ways the budget harms those already at risk and comforts the comfortable:

  • The budget includes a request for $8.6 billion in additional funding for Trump’s immoral border wall, a monument to xenophobia and racism.
  • The budget calls for using an accounting gimmick to get around caps on defense spending by more than doubling the size of a slush fund presidents from both parties have used to fund our ongoing foreign wars (or “overseas contingency operations” as they are euphemistically called). The increase in defense spending also increases the size of the cuts the administration wants to make everywhere else.
  • The budget envisions cutting SNAP by $220 billion over 10 years, and impose work requirements on many safety net programs, which a recent report from the National Academy of Sciences said “are least as likely to increase as to decrease poverty.”
  • This budget would also cut the international affairs budget by 23 percent and the humanitarian budget by 30 percent. Even the President’s Emergency Plan For AIDS Relief (PEPFAR)— a government program dedicated to fighting the HIV/AIDS epidemic overseas that has enjoyed longstanding bipartisan support — would be cut by a devastating 22 percent. Taken together these cuts exemplify the administration’s isolationism and disregard for the non-military aspects of foreign policy.
  • The budget calls for a significant slowdown in spending and a dramatic restructuring of Medicaid, a program primarily designed to provide access to health care for people in poverty.
  • The budget calls for extending permanently the 2017 tax cut, which gives more dollars to white households in the top 1 percent than the bottom 60 percent of households of all races. This budget would perpetuate our nation’s racial income inequity.

The immorality of the president’s budget goes beyond exacerbating income and wealth inequality. It also envisions radical reductions in spending on agencies that protect the environment and provide housing to the urban poor, to the tune of a 31 percent reduction in discretionary funding for the Environmental Protection Agency and an 18 percent reduction for the Department of Housing and Urban Development, among others.

It’s very reasonable to ask: What would a just budget look like? Sojourners is a proud co-founder and co-chair of the Circle of Protection, a group of religious leaders who head Christian denominations and organizations from all major branches of Christianity, unprecedented in its theological breadth. The group was founded in 2011 around the principle that the nation and world’s most vulnerable people, particularly the poor and hungry, must be served and protected by the United States government’s budget. The Circle recently sent a letter to Capitol Hill urging members of Congress in both parties to work together to pass a just budget while also working to end poverty and increase opportunity for all of God’s children. That letter reads in part:

We urge you to pass a bipartisan budget agreement that both reverses harmful sequestration cuts and expands investments in critical programs serving people in poverty—both in the U.S. and around the world. We further urge you to prioritize funding for program areas targeted to help low-income individuals afford the essentials, such as low-income housing assistance, child care, and poverty-focused international assistance. It is not enough to simply prevent cuts to domestic and international anti-poverty programs. We call for additional investments in these programs.

Sojourners, along with our partners in the Circle of Protection, believe that we must focus our persuasion efforts on Congress in the year to come both because that is the branch that authorizes and appropriates government spending, and because this White House continues to display a callous disregard for the economically disadvantaged at every turn — with this week’s budget proposal marking the latest stark example.

On one hand, few of these proposals are new or unique to President Trump. His budget represents a wish-list that might be crafted by any number of right-wing politicians in this country. But at a certain point it’s necessary to point out that regardless of stated intent, the practical effect of many of these policies is to make life better for people who are overwhelmingly white and wealthy while making it more difficult for low-income people, who are disproportionately people of color. If we believe budgets are moral documents that reveal our priorities, this budget reveals an administration determined to protect a deeply inequitable status quo. Join us in resisting and transforming this status quo into a budget that reflects our most deeply held values and priorities.

 Rev. Adam R. Taylor is executive director of Sojourners. He previously led the Faith Initiative at the World Bank Group.

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

Amen. That some so-called “faith groups” continue to blindly back the most immoral and dishonest President in U.S. history is most perplexing.

PWS

03-14-19

 

HON. ROBERT D. WEISEL @ NY DAILY NEWS: Universal Representation Is A Necessary & Achievable Requirement For Due Process In Immigration Court — Representation Increases Chances Of Success for Migrants 12X!

https://www.nydailynews.com/opinion/ny-oped-everyone-in-immigration-detention-needs-a-lawyer-20190307-story.html

Retired U.S. Assistant chief Immigraton Judge Robert Weisel writhes in the NY Daily News:

As the Trump administration’s immigration agenda sows fear and instability, New Yorkers should be proud that our state is the national leader in ensuring due process for all. In New York, no detained person is forced to face immigration court without an attorney.

Having served nearly three decades as an immigration judge, I can affirm that access to counsel for people facing deportation is an essential component of fairness and an important way to strengthen communities throughout our state.

Consider “Louis’s” story. A lawful permanent resident for more than two decades, “Louis” was a devoted father and beloved basketball and football coach in Rochester when Immigration and Customs Enforcement detained him based on a 10-year-old conviction. While he was detained in Batavia, Louis’s family faced crippling emotional and financial hardship without his income and support. His oldest child suffered a substantial deterioration in his mental health and his young children struggled to cope with their father’s absence.

Had Louis not been a New Yorker, odds are he would have faced deportation without a lawyer. His family would have continued to struggle without their father and, based on the statistical outcomes for unrepresented immigrants, he likely would have been deported — permanently separated from his children and fiancée.

Thankfully, Louis’s case did take place in New York. Louis and his attorneys worked together and won his immigration case. He is now back with his family and coaching sports in his community.

Unlike in criminal court, immigrants in deportation proceedings are not guaranteed an attorney if they cannot hire one. As a result, nearly 70% of detained immigrants and approximately 30% of non-detained immigrants nationwide in deportation proceedings lack legal representation, facing the terrifying prospect of separation from their families while confronting the complexities of U.S. immigration law alone. Representation doesn’t guarantee any outcome, but it does ensure that everyone has access to due process and a fair day in court.

I was the assistant chief immigration judge for New York City and New Jersey in 2013 when a small pilot project, The New York Immigrant Family Unity Project, guaranteed attorneys for immigrants at one New York City immigration court. NYIFUP demonstrated the importance of publicly-funded deportation defense, raising the level of practice in the court and strengthening both fairness and efficiency.

The Vera Institute of Justice evaluated NYIFUP, finding that 48% of immigrants succeeded in their cases, while unrepresented immigrants in the same court were successful only 4% of the time. NYIFUP also produced other benefits — including keeping families together and generating $2.7 million in annual tax revenues from clients who established the right to remain in the United States.

The success of the pilot soon spread NYIFUP statewide. I was proud to partner with Vera when it launched a similar assigned counsel project in the Hudson Valley. Now, as a part of Gov. Cuomo’s Liberty Defense Project, New York State funds deportation defense at all immigration courts upstate, while the New York City Council supports it in New York City.

New York should be proud of its national leadership in ensuring that every detained immigrant in our state has access to representation. However, gaps remain in our state’s approach to ensuring due process for all. Notably, there are 19,000 New Yorkers living in our communities while in deportation proceedings — as opposed to being in detention — who are unable to afford an attorney to represent them.

New York must continue to guarantee counsel for all immigrants facing deportation, and other states should join in our successful experiment.

Weisel served first as an immigration judge, and then as assistant chief immigration judge, in the New York Immigration Court from 1989 until his retirement in 2016. He currently serves as a Senior Consultant to the United Nations High Commissioner for Refugees, advising on issues relating to access to counsel in immigration court proceedings.

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

My good friend and colleague Bob Weisel is “one of the best ever” going back to the early days of EOIR when folks on all levels were actually committed, however imperfectly, to fashioning a better, more professional, and fairer U.S. Immigration Court that would exemplify and promote Due Process.

Of course, our efforts were sometimes flawed. But those of us involved (I happened to be working for the “Legacy INS” at that time which had “spun off” the Immigration Courts into a new entity, EOIR) believed we were learning from our mistakes and successes and were part of an “upward arc” of justice that would, at an appropriate time, evolve into a truly independent court system.

Today, that noble quest has been abandoned in favor of a “race to the bottom” where worst practices are encouraged, “judges” are expected to function like enforcement officers, and Due Process is, at best, an afterthought.

Private attorneys, most serving on a pro bono or “low bono” basis, are  among those committed to preserving some semblance of justice and fairness in this broken and dysfunctional system. And, attorneys are making a difference!

There are lots of good ideas out there on how to increase representation — something that actually helps the system produce fair and efficient results and reduce backlogs. For example, a better trained, better regulated, larger corps of “certified non-attorney representatives” working for religious and charitable organizations presents great potential.

But, with the Federal Government interested solely in mindless, wasteful, and ultimately “built to fail” enforcement efforts, at the expense of fairness and correct decisions, the burden falls to states, localities, NGOs, and private sector groups to essentially do the Government’s job for them — uphold and improve our legal system in the face of U.S. Government intransigence and incompetence.

PWS

03-13-19

 

 

 

 

EOIR DIRECTOR McHENRY TRIES TO EXPLAIN TRASHING OF DUE PROCESS TO SKEPTICAL HOUSE DEMS — DOJ Leadership Has Turned “Courts” Into “A DMV For Deportation,” Says Chairman Jose Serrano (D-NY)!— Many Cases From Trump Shutdown Still “MIA” While Lives Hang In The Balance!

https://www.cbsnews.com/news/immigration-court-government-shutdown-immigrants-waiting-for-cancelled-hearings-rescheduled-2019-03-11/

Kate Smith reports for CBS News:

Immigration courts are still wading through the disruptions caused by the government shutdown, which closed the courts and effectively cancelled between 50,000 and 95,000 hearings in December and January.

Congressman Jose Serrano, who chaired the hearing, called the delay “deeply problematic,” in an email to CBS News. The nation’s immigration courts reopened on January 28 after being closed for over a month during the partial government shutdown.

“It is ironic that this Administration’s obsession with building a wall only increased the number of immigrants in limbo, aggravating an already serious crisis,” said Serrano, who represents New York’s 15th district. “There needs to be a serious effort to reschedule these hearings quickly”

Although McHenry estimated that 50,000 immigration cases were cancelled during the shutdown, others say the number could be nearly double that. According to Syracuse University’s TRAC, 80,051 hearings during the shutdown were either outright cancelled or had their status left unchanged — the hearing date simply came and went without acknowledgement, leaving affected migrants to wonder what comes next.

TRAC said the number of cancelled cases rises to more than 94,000 when it includes other factors, like “Docket Management” or “Immigration Judge Leave.”

Many hearings scheduled for the week after the government reopened were also postponed as court clerks waded through over a month’s worth of filings that hadn’t been touched during the shutdown. Rather than processing those documents, court administrators in Charlotte, North Carolina, for example, threw them into brown cardboard boxes for clerks to deal with once the court opened, said Jeremy McKinney, an immigration attorney who serves clients in North Carolina and South Carolina.

The immigration court system, which is overseen by the Department of Justice, handles a range of cases involving non-citizens, including issuing green cards and ruling on asylum claims. The courts also serve as a necessary step toward temporary Social Security cards — needed for work permits and driver’s licenses — making hearings intensely important for immigrants.

The Executive Office of Immigration Review declined to comment on the status of the courts after the shutdown.

CBS News spoke with six immigration attorneys, all of which have at least one client whose cancelled case hasn’t yet been rescheduled. Many of the hearings that were have yet to be rescheduled are for migrants seeking asylum, a legal form of immigration for people fleeing persecution and threats in their home country. One immigrant was waiting on a final hearing on their asylum case, a decision that would determine whether she gets to stay in the United States or be deported.

“The impact on the client is just not knowing,” said McKinney.

The cancellations have also added to the system’s record-high case backlog, which McHenry estimated to be 850,000 during Thursday’s hearing. Once the courts have fully realized the impact from the shutdown, immigration advocates predict it will get even bigger.

For the immigrants with cancelled hearings, getting back in front of a judge could take years. At the Newark, New Jersey immigration court, some cancelled hearings have been penciled in as far back as August 2021, said Alan Pollack, an immigration attorney in New Jersey, in an interview with CBS News. In Houston, the immigration court begun issuing dates in 2022, said Ruby Powers, an immigration attorney.

“We’re getting a bit used to things taking a while and a dose of chaos,” Powers said.

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Here’s Subcommittee Chairman Jose Serrano’s (D-NY) “spot on” statement about the DOJ’s “dissing” of Due Process at EOIR.

https://appropriations.house.gov/news/press-releases/chairman-serrano-statement-at-hearing-on-executive-office-for-immigration-0

Chairman Serrano Statement at Hearing on Executive Office for Immigration Review

March 7, 2019
Press Release

Congressman José E. Serrano (D-NY), Chair of the Commerce, Justice, Science and Related AgenciesAppropriations Subcommittee, delivered the following remarks at the Subcommittee’s hearing on the Executive Office for Immigration Review:

The subcommittee will come to order.

For our second hearing of the year, today we welcome James McHenry, the Director of the Executive Office for Immigration Review, or EOIR.  EOIR primarily functions as our nation’s immigration court system, where it administers and adjudicates our nation’s immigration laws.  Thank you for being with us, Director McHenry.

I wanted to hold this hearing because I have deep concerns about how our nation’s immigration courts are operating.  Some of those concerns are longstanding, while others have been exacerbated by the decisions of the Trump Administration.

Our nation’s immigration courts handle a wide variety of immigration-related claims, from removal proceedings to asylum claims.  These are complex, nuanced proceedings that require time, understanding, and care. In many cases, the consequence­­—removal from this country—is so severe that we must have significant due process to ensure that no one’s rights are violated in an immigration court proceeding.

Unfortunately, these concerns are increasingly being shoved aside.  This, in part, is due to the enormous, and growing, backlog of pending cases before the courts, which is now more than 1 million cases, according to the Transactional Records Access Clearinghouse at Syracuse University.  That growth is largely due to the significant increase in immigration enforcement efforts over the past 15 years, which has not been followed by a similar growth in the immigration court system.  Although this subcommittee has included significant increases in immigration judge teams for the past two fiscal years, the backlog has actually increased under the Trump Administration.   This situation was worsened by the recent government shutdown.

The reasons for that are sadly clear.  The leadership at the Justice Department has attempted to turn our immigration courts into a sort of deportation DMV– where immigrants get minimal due process on their way out the door.  This Administration has chosen to: impose quotas on immigration judges to limit case consideration regardless of complexity; limit the ways in which immigrants can make valid claims for asylum; increase the use of videoconferencing to reduce in-person appearances; and undermine the discretion of immigration judges to administratively close cases, among many other things. Ironically, these choices, supposedly aimed at efficiency, have actually increased the backlog.

I believe our immigration courts should strive to be a model of due process.  A couple of bright spots in that effort are the Legal Orientation Program and the Immigration Court Help Desk, both of which help to better inform immigrants about their court proceedings. We should seek to expand such programs.

Despite these efforts, in our current system, an estimated 63 percent of immigrants do not have legal counsel.  We’ve all read stories about children, some as young as 3 years old, being made to represent themselves.  That is appalling. Our immigration laws are complicated enough for native English speakers, let alone those who come here speaking other languages or who are not adults.  We can, and should, do better than this.

Today’s hearing will explore the choices we are making in our immigration court system, to better understand how the money we appropriate is being used, and whether it is being used in line with our expectations and values.  Thank you, again, Director McHenry, for being here.

Now let me turn to my friend, Mr. Aderholt, for any comments he may have.

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It’s painfully obvious that Director McHenry doesn’t have the faintest idea how many cases are actually “off docket” because of the Trump Administration’s malicious incompetence, a/k/a ”Aimless Docket Reshuffling.”

As Chairman Serrano observed, the vision of the Immigration Courts once was “through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” That noble vision has been replaced by a “partnership” with DHS Enforcement to misconstrue the law, deny rights, punish those we should be protecting, and reduce “Immigration Judges” to menial “rubber stamps” on cruel, illegal, and unduly harsh enforcement actions in the hopes that the Article III Courts will “take a dive” and “defer” rather than intervening to put an end to this travesty.

Chairman Serrano and others have identified the problem. But they haven’t solved it!

That will require the removal of the Immigration Courts from the DOJ and establishing an independent Article I U.S. Immigration Court where Due Process can flourish, fundamental fairness will be the watchword, “best practices” (not merely expediency) will be institutionalized, and all parties will be treated equally and respectfully, thus putting an end to years of preferential treatment of DHS.

PWS

03-12-19