Priorities – immigrationcourtside.com

THE ATLANTIC: Priscilla Alvarez Exposes Nation’s Largest Failing Court System: U.S. Immigration Court — Quoting Me: “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained, . . . .” — No Amount Of Resources Can Overcome Screwed Up Priorities, Political Meddling, & Management Problems Inherent In The Current “Designed To Fail” System — Due Processes Takes A Back Seat!

https://www.theatlantic.com/politics/archive/2017/04/trump-immigration-court-ice/523557/

Priscilla writes in an article that also contains quotes from highly respected DC area immigration practitioner Dree Collopy (emphasis added in below excerpt):

“Responding to the 2014 migrant wave, the Obama administration temporarily redirected immigration judges to the southern border to preside over removal proceedings and bond hearings, and review whether any individuals’ claims of fear of persecution were credible. Immigration cases being heard in other parts of the United States had to be put on hold, said Jeremy McKinney, an attorney and board member of the American Immigration Lawyers Association. “The surge was the first time we saw a deployment of immigration judges to the border, resulting in non-detained dockets in the United States getting much worse,” McKinney said, referring to cases that do not require detention. “That situation already put a strain on the interior immigration courts.”

The Justice Department, which hires judges for immigration courts, was also tied up by the budget sequester from 2011 to 2014, so there weren’t enough judges to try cases, he added. Over time, the backlog grew from around 327,000 cases at the end of the 2012 fiscal year to half a million in 2016.

Judge Paul Schmidt, who was appointed in 2003 by Attorney General John Ashcroft, had around 10,000 immigration cases pending when he left his job last year. “When I retired, I was sending cases to 2022,” he told me. Schmidt, who primarily served in the Arlington Immigration Court in northern Virginia, was assigned to those not considered a priority—say, people who had traffic violations. The current national backlog, Schmidt said, largely consists of cases like the ones he handled.

The Trump administration has taken steps that could quicken the courts’ work. For one, ICE officers can now deport someone immediately, without a hearing, if they fit certain criteria and have lived in the United States for up to two years. Under the last administration, that timeline was up to two weeks, and the individual needed to be within 100 miles of the border.

Attorney General Jeff Sessions also announced, in a speech on the Arizona-Mexico border, that the Department of Justice will add 125 immigration judges to the bench over the next two years: 50 this year and 75 in 2018. He urged federal prosecutors to prioritize the enforcement of immigration laws. “This is a new era. This is the Trump era,” Sessions said. “The lawlessness, the abdication of the duty to enforce our immigration laws, and the catch-and-release practices of old are over.”

“You have to give Sessions credit for this,” Schmidt said. “He took note of the 18-to-24-month cycle for filling judges and said he was going to streamline that.” The math still doesn’t exactly work out, however. “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained,” he said. Factor in the fact that it takes up to two years to become “fully productive,” he said, and altogether, it could take five to six years for the 125 new judges to cut down the backlog.

All the while, new cases will continue to come in as the administration enforces its new, broader policies on deportation. Newly detained individuals will be prioritized over other cases, which will be pushed further down the road. “I think it has a particular impact on asylum-seekers, because the sense of being in limbo really seems to prolong their trauma and their sense of statelessness that they have,” said Dree Collopy, an immigration lawyer in Washington, D.C. And hearing delays can affect asylum-seekers’ credibility, as well as evidence to support their cases: “Over time, especially when trauma is involved, memories begin to fade.” If a person can’t testify until years after entering the United States, “that can obviously cause problems.”

When Collopy first started practicing immigration law in 2007, cases generally would take about a year or two to complete. That’s no longer the case: “Now, it’s taking four or five years on average,” she told me. With the Trump administration rounding up undocumented immigrants quicker than courts can process cases, that delay isn’t likely to shorten.”

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Read Priscilla’s full article at the above link.

A “smart” strategy would address the 542,000 pending cases before piling on new priorities. Under a more rational policy, those in the current backlog with equities in the U.S., “clean records,” or only minor criminal histories, could be offered “prosecutorial discretion” (“PD”) and taken off the Immigration Court’s docket to make room for higher priority cases.

However, instead of encouraging more use of PD, which was starting to make some difference by the end of the Obama Administration, the Trump Administration has basically made “everything” a potential “priority.” Moreover, as a “double whammy” the Administration has basically “disempowered” those at DHS who know the Immigration Court system the best, the local ICE Assistant Chief Counsel, from freely exercising PD to take non-criminal cases off the docket.

Ironically, at the same time, DHS appears to be giving line enforcement agents the “green light” to arrest just about anyone who might be removable for any reason. However, the line agents unlikely to understand the limitations of the current Immigration Court system and what is already “on the docket.”

The Immigration Court system is basically the opposite of most other law enforcement systems where prosecutors, rather than policemen or agents, determine what cases will be brought before the court. And, in most functioning court systems, the individual sitting judges control their own dockets, rather than having priorities set by politically-driven non-judicial bureaucrats in other places. It certainly appears to be a prescription for disaster. Stay tuned!

PWS

04-21-17

NOTE: In an earlier version of this article I “blew” Priscilla’s name by calling her “Patricia.” My apologies. I’ve now corrected it.

Michele Waslin, Immigration Impact: Trump Administration Ditches “Common Sense Priorities” In Adopting a Max Enforcement Program!

http://immigrationimpact.com/2017/02/15/trump-immigration-enforcement-policies/

“The Trump administration is quickly unraveling the last administration’s efforts to prioritize those for deportation who pose a serious threat over those who don’t. The new administration is ignoring priorities that were put into place by the Obama Administration as a way to manage limited law enforcement resources. The priorities recognized that there is a finite budget available for immigration enforcement, thus making prioritization important. The approach now being pursued by the Trump Administration casts a wide net and will result in an aggressive and unforgiving approach to immigration enforcement moving forward.

The most significant indications of this shift came through the “Enhancing Public Safety in the Interior of the U.S.” executive order, issued January 25, 2017, which prioritizes for deportation those noncitizens who:

Have been convicted of any criminal offense;
Have been charged with any criminal offense;
Have committed acts that constitute a chargeable criminal offense;
Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency;
Have abused any program related to the receipt of public benefits;
Are subject to a final order of removal but have not departed;
Otherwise pose a risk to public safety or national security.
In addition, unauthorized immigrants with no criminal history will likely fit under the third bullet because entering without inspection is a chargeable criminal offense (illegal entry or re-entry). And since the executive order states that many immigrants without immigration status or who overstayed their visas are a risk to public safety and national security, it appears the final bullet is a catch-all category for many others. In other words, the president has “prioritized” everyone, which means in reality he’s prioritized no one, making everyone a target for enforcement. Furthermore, legal immigrants—even green card holders–who are convicted of aggravated felonies or crimes of moral turpitude could also be subject to deportation.

Yet despite the more aggressive approach, it is still unclear from where the resources to identify, arrest, detain, and deport all of these individuals will come. For example, the U.S. is already over-capacity in detention, and immigration courts are seriously backlogged.

In the past, the government has stated that budget realities make it impossible to remove everyone who is in the country without authorization or who is otherwise deportable. This meant the agency had to set priorities and focus on a subset of deportable immigrants.

The Obama administration released a series of memos designed to prioritize those who pose a threat to public safety and national security and other categories of individuals.”

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The Obama Administration made a total mess out of the already stressed U.S. Immigration Court dockets by unwisely and unnecessarily “prioritizing” cases of recently arrived unaccompanied children, women, and families fleeing violence and corruption in the Northern Triangle.

Nevertheless, thorough programs such as DACA, stateside processing, closing cases with possible relief pending before USCIS, and frequent wise use of prosecutorial discretion (“PD”) in “clean” cases with difficult legal issues but strong humanitarian factors, the Obama Administration was the first Administration I have seen make progress on developing a system that could eventually have helped “rationalize” Immigration Court dockets. If freed from politicized and unrealistic “priorities” from above, this eventually could have allowed the courts to focus on cases that really needed to be litigated, as is the case with almost all other high-volume court systems.

By contrast, the Trump Administration seems intent on “torquing” the Immigration Court system until it breaks apart. Even the Obama Administration used an overly broad concept of “criminal alien.” They included too many individuals who, while technically removable under the law, were doing useful things in the community and presented no real threat to the safety or security of the U.S.

Certainly the Trump Administration could have focused on those whose removals should be prioritized by “fine tuning” the Obama enforcement priorities. Instead, they have embarked on an expensive and ill-planned “mission impossible” to make everybody a priority (and, hence, nobody a priority) without any regard to the capacity or the best uses of court time and resources within our judicial system.

Additionally, the Trump Administration seems to be going out of its way to “disempower” those who are closest to the problem and are actually in the best position to determine which cases should be prosecuted: the local Offices of Chief Counsel of the DHS (the “immigration equivalent” of the U.S. Attorney). In Arlington, the Office of Chief Counsel was well-respected by all and had an excellent grasp of how to make the justice system work for all involved. Their main problem, like that of the Immigration Courts, was unrealistic priorities and directives imposed on them by political officials “up the chain.”

Sadly, the Trump Administration seems determined not to build on those things that have been successful in the past and instead to embark on a new “blunderbuss” approach to immigration enforcement that is almost guaranteed to get tied up with both legal challenges and practical impossibilities.

PWS

02/19/17

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