Priscilla Alvarez – Page 2 – immigrationcourtside.com

SUPREMES TO DECIDE CONSTITUTIONALITY OF “EXPEDITED REMOVAL” IN ASYLUM CONTEXT

Ariane de Vogue
Supreme Court Reporter
CNN

https://apple.news/AYpmeq0mPTTm9sB1mjbDRyg

Ariane de Vogue and Priscilla Alvarez, CNN:

The Supreme Court agreed on Friday to take up a major immigration case concerning the rights of undocumented immigrants seeking asylum to challenge their expedited removal proceedings.

The Trump administration had asked the court to review an opinion of the 9th US Circuit Court of Appeals that would allow those who have been denied asylum the opportunity to make their claims in federal courts.

If the opinion is ultimately upheld, it could open the doors to more asylum seekers at a time when the administration has attempted to dramatically limit who’s eligible for asylum in the US.

The case centers on Vijayakumar Thuraissigiam, a native citizen of Sri Lanka who’s a member of an ethnic minority group. He was arrested 25 yards north of the US-Mexico border and placed in expedited removal proceedings. That fast-track deportation procedure allows immigration authorities to remove an individual without a hearing before an immigration judge.

Thuraissigiam applied for asylum, citing fear of persecution in Sri Lanka, and an asylum officer determined he had not established a credible fear of persecution. A supervising officer and an immigration judge affirmed the decision. Under the law, after the denial, Thuraissigiam was ineligible to challenge the finding.

Thuraissigiam went to federal district court, arguing that the expedited removal violated his constitutional rights. A district court said the law did not authorize the court to hear his claims. The 9th US Circuit Court of Appeals agreed, but said the law violates the Suspension Clause, which, the court held, requires Thuraissigiam, even as a noncitizen, to have a “meaningful opportunity” to demonstrate that he is being held against the law.

The Trump administration argued in briefs that the law — which sharply limits judicial review to final orders of removal — was passed so that the asylum system would not be abused. The law offers some exceptions, but they were not met by Thuraissigiam.

“The Ninth Circuit held that the Suspension Clause provides respondent with a constitutional right to additional review of his application for admission, beyond the review Congress has established,” Solicitor General Noel Francisco argued in court briefs. He said Thuraissigiam “failed to satisfy even the threshold screening standard.”

A Congressional Research Service report notes that the Supreme Court “has repeatedly held” that the government may exclude immigrants “without affording them the due process protections that traditionally apply to persons physically present in the United States.”

Expedited removal has been a point of contention in recent months, as the Trump administration has moved to expand the procedure and cast a wider net over undocumented immigrants subject to it. A federal judge blocked the move in a separate case last month.

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The answer is actually simple. As a person applying for asylum in the U.S., the respondent is entitled to Due Process. Since the Asylum Officer and the Immigration Judge both work for the Executive, the respondent never had access to the “fair and impartial” decision maker to which he is entitled under our Constitution.

Not only does the Suspension Clause give him a right to access to the Article III courts, Due Process under the Fifth Amendment also requires it. Therefore, the statute is unconstitutional.

But don’t count on the Supremes to do the right and legal thing here. As the Congressional Research Service notes, the Supremes have a history of manipulating the law to avoid the straightforward and correct answers when it comes to foreign nationals seeking to invoke the protections to which they are entitled under our laws.

“Dred Scottification” predated the Trump Administration. But, the Trump Administration intends to build on making foreign nationals “non-persons” under our Constitution to “de-humanize” as many classes of persons in America as the Article III Courts let it get away with. Who knows, you might be next on the list!

PWS

10-18-19

[BUREAU] ‘CRATS CONTINUE TO FLEE SINKING DHS SHIP AS ABUSES, LIES, COVER-UPS MOUNT — John Sanders Latest To Exit — Trump Taps Mark Morgan, Eager Architect Of Administration’s Temporarily Aborted “Community Reign of Terror” (A/K/A/ “Operation Wetback ‘19”) Program As Next Acting CBP Chief — Expect More Mindless Cruelty, Lies, False Narratives, White Nationalist Racism, Violations Of Law & Human Rights!

https://www.cnn.com/2019/06/25/politics/customs-and-border-protection-john-sanders/index.html

Priscilla Alvarez and Geneva Sands report for CNN:

Washington (CNN)Acting Customs and Border Protection Commissioner John Sanders is resigning, he said in a message sent to agency employees Tuesday, amid the dramatic increase in the number of undocumented migrants crossing the border, a fight over how to address it and controversy over how children are being treated.

“Although I will leave it to you to determine whether I was successful, I can unequivocally say that helping support the amazing men and women of CBP has been the most fulfilling and satisfying opportunity of my career,” Sanders writes. His resignation is effective July 5.

Acting Immigration and Customs Enforcement Director Mark Morgan is expected to take over as Customs and Border Protection in an acting capacity, according to a Department of Homeland Security official. Sanders’s resignation as acting head of CBP comes amid a crush of migrants at the border that has overwhelmed facilities. Earlier Tuesday, CBP held a call with reporters on squalid conditions at a Border Patrol facility in Clint, Texas.

Officials conceded that children should not be held in CBP custody, noting that the agency’s facilities were designed decades ago to largely accommodate single adults for a short period of time.

The Washington Post first reported Morgan’s move.

Over the weekend, President Donald Trump called off planned raids by US Immigration and Customs Enforcement, saying deportations would proceed unless Congress finds a solution on the US-Mexico border within two weeks. Before it was postponed, Mark Morgan had publicly confirmed an operation targeting migrant families and others with court-ordered removals was in the works.

Morgan, a vocal proponent of the President’s efforts, was another of Trump’s picks to lead ICE after abruptly pulling the nomination of Ron Vitiello.

Morgan briefly served as Border Patrol chief during the Obama administration before leaving the post in January 2017. He previously spent two decades at the FBI. He is expected to return to Customs and Border Protection, which encompasses Border Patrol.

Sanders assumed the post after Kevin McAleenan, the former commissioner, moved up to fill the role of acting homeland security secretary in the wake of Kirstjen Nielsen’s ouster this spring. In his role, Sanders has overseen the agency responsible for policing the US borders and facilitating legal trade and travel. It is also the frontline agency dealing with the surge of migrants at the southern border.

Robert Perez, the highest-ranking career official, is the current deputy commissioner. It is unclear if he will step into the acting commissioner position.

<img alt=”100 children moved back to controversial Clint, Texas, border facility” class=”media__image” src=”//cdn.cnn.com/cnnnext/dam/assets/180706121423-02-immigration-facility-0628-large-169.jpg”>

100 children moved back to controversial Clint, Texas, border facility

Before becoming acting commissioner, Sanders, served as the Chief Operating Officer at CBP, where he worked with McAleenan to address the operational needs of the agency and work on strategic direction.

As of June 1 this fiscal year, Border Patrol has arrested more than 377,000 family units, over 60,000 unaccompanied children, and over 226,000 single adults.

Sanders did not provide a reason for his departure.

Read Sanders’s letter here:

As some of you are aware, yesterday I offered my resignation to Secretary McAleenan, effective Friday, July 5. In that letter, I quoted a wise man who said to me, “each man will judge their success by their own metrics.” Although I will leave it to you to determine whether I was successful, I can unequivocally say that helping support the amazing men and women of CBP has been the most fulfilling and satisfying opportunity of my career.

<img alt=”100 children moved back to controversial Clint, Texas, border facility” class=”media__image” src=”//cdn.cnn.com/cnnnext/dam/assets/180706121423-02-immigration-facility-0628-large-169.jpg”>

100 children moved back to controversial Clint, Texas, border facility

I’ve spent a significant amount of time over the last several days reflecting on my time at CBP. When I began this journey, Commissioner McAleenan charged me with aligning the mission support organizations and accelerating his priorities. Easy enough, I thought. What I didn’t appreciate at the time was how the journey would transform me professionally and personally. This transformation was due in large part to the fact that people embraced and welcomed me in a way that was new to me — in a way that was truly special. To this day, I get choked up when speaking about it and I can’t adequately express my thanks. As a result, let me simply say I will never stop defending the people and the mission for which 427 people gave their lives in the line of duty in defending. Hold your heads high with the honor and distinction that you so richly deserve.

Throughout our journey together, your determination and can-do attitude made the real difference. It allowed CBP to accomplish what others thought wasn’t possible…what others weren’t able to do. And even though there is uncertainty during change, there is also opportunity. I therefore encourage everyone to reflect on all that you have accomplished as a team. My hope is you build upon your accomplishments and embrace new opportunities, remain flexible, and continue to make CBP extraordinary. This is your organization…own it! Don’t underestimate the power of momentum as you continue to tackle some of this country’s most difficult challenges.

I will forever be honored to have served beside you. As a citizen of this great country, I thank you for your public service.

Take care of each other,

John

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Meanwhile, back at the ranch, the latest TRAC Report confirms that under Trump, the DHS, particularly ICE, has been ignoring real enforcement priorities to concentrate on often counterproductive, yet cruel, wasteful, and polarizing, improperly politicized enforcement aimed at non-criminals and those contributing to our country. In other words, terrorizing primarily Hispanic communities just because they can. And these racist attacks appeal to Trump’s base. Just part of the “ICE Fraud” that Morgan undoubtedly intends to bring over to CBP. https://trac.syr.edu/immigration/reports/564/.

Not surprisingly, some dedicated and professional ICE Agents are tiring of Trump and his sycophants’ “malicious incompetence” that is demoralizing the agency and (as I had predicted long ago) turning it into probably the most hated, least trusted, least useful, and least effective law enforcement organization in America. Michelle Mark at Business Insider covers the “bad things that happen” when you have a “no values” White Nationalist President and exceptionally poor leaders like Tom Homan and Mark Morgan who lacked both the will and the backbone to stand up to Trump’s White Nationalist nonsense. https://apple.news/AxFctS7mET3qBX419lPootw

It’s an out of control agency badly in need of professional leadership, practical priorities, and some restraint and professional discipline in both rhetoric and actions. In other words, it needs a real law enforcement mission with honest, unbiased, professional leadership. Not going to happen under Trump!

So, the next competent President will have her or his work cut out to reform and reorganize ICE into an agency that serves the national interests of the majority of Americans. Whether that can be done in ICE’s current configuration, given its overtly racist overtones and widespread lack of community trust under Trump, remains to be seen. It could be beyond repair.

PWS

06-26-19

U.S. IMMIGRATION JUDGE JONATHEN SCOTT SIMPSON EXPRESSES FRUSTRATION WITH FECKLESS “COURT” SYSTEM THAT KOWTOWS TO DHS ENFORCEMENT’S “STAY IN MEXICO PROGRAM” — DOJ’s “Captive Courts” Expected To Assist DHS In Misusing Asylum Laws To Discourage & Punish Asylum Seekers”

https://www.cnn.com/2019/03/20/politics/asylum-return-to-mexico-hearing-migrant-protection-protocols/index.html

Priscilla Alvarez reports for CNN:

San Diego (CNN)Twelve asylum seekers required to stay in Mexico for the duration of their immigration hearings presented themselves one by one before an immigration judge over nearly four hours Wednesday. Each case appeared to raise a similar set of questions about the new policy for Judge Jonathen Scott Simpson, and the hearing culminated in a dose of skepticism from the judge.

“Several things cause me concern,” Simpson said toward the end of the hearing, as he weighed whether four asylum seekers who weren’t present should be removed in absentia.

RELATED: Homeland Security expands program of returning migrants to Mexico to await hearings

The migrants who appeared at the San Diego immigration court on Wednesday fall under the Migrant Protection Protocols program, informally known as “Remain in Mexico.” The program, which was initially rolled out in January at the San Ysidro port of entry, roughly 18 miles from the court, requires some asylum seekers to stay in Mexico to await their immigration hearings. Immigration and Customs Enforcement manages transportation to and from the border and court appearances.

The requirement that some of those seeking asylum stay in Mexico as they await their US court dates marks an unprecedented change in US asylum policy. As such, it has raised a host of questions among lawyers, advocates and now, immigration judges.

As of March 12, the US had returned 240 migrants to Mexico under these protocols.

The first spate of hearings, which got underway this month, have underscored outstanding issues with the new program, including the challenge of obtaining legal representation while in another country and providing notification of court dates to an individual without a fixed address. They have also revealed glitches in the system, in which conflicting dates are causing confusion among migrants over when to appear at a port of entry for a court appearance.

The largest group to attend court so far came Wednesday. The 12 asylum seekers — five with attorneys, seven without — participated in a master calendar hearing, the first hearing in removal proceedings.

Border Patrol facility over capacity as government struggles to keep pace in the Rio Grande Valley

In one case, a man seeking asylum who did not have a lawyer said he had been provided with a list of legal service providers by the government but had trouble understanding it.

“I was confused,” he told the judge. “I don’t know how to read and write. It becomes difficult.” He added: “In Mexico, it’s even more complicated. It’s more complicated than if I were here.”

“I understand it’s more difficult,” Simpson replied. “It’s not lost on me.”

All asylum seekers whose cases were scheduled for Wednesday were set up with merits hearing dates, where individuals provide evidence to substantiate their claims to remain in the US, or are given additional time to find legal representation. The dates were scattered among April, May and July.

In some instances scheduling issues arose, as Simpson explained that his afternoons for the next several months are dedicated to master calendar hearings for Migrant Protection Protocols. Merits hearings, therefore, would need to be scheduled for the mornings.

Senate panel approves Trump’s nominee to lead ICE

Given that asylum seekers must wait in Mexico, however, and therefore need time to be processed by US Customs and Border Protection before going to their hearings, mornings were out of the question.

“Immigration officers need four hours,” said Robert Wities, an ICE attorney.

“I can’t do an entire master calendar in the afternoon and merits hearing,” Simpson responded, later asking the ICE attorneys to explain in writing why it wouldn’t be possible for the asylum seekers to attend morning hearings.

In February, a coalition of immigrant advocacy groups asked a federal judge for a restraining order that would block the Trump administration from forcing asylum seekers to stay in Mexico while their cases make their way through the immigration courts. The hearing on the motion is scheduled for this Friday.

In the meantime, the administration may clarify or resolve those issues in the future in documents provided to the immigration court. But for now, immigration hearings for those asylum seekers waiting in Mexico are set to move forward.

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Can you imagine what would happen if the ICE Assistant Chief Counsel Robert Wities told a U.S. District Judge when he or she could or couldn’t schedule hearings? What if a private attorney said he or she would only appear in the afternoon? What kind of “court system” doesn’t give its own judges flexibility to set their own court schedules in the manner they believe will be most fair, effective, and efficient? Why has the statutory contempt of court authority that Congress conferred on U.S. Immigration Judges more than two decades ago never been implemented by the DOJ?

A real court would examine both the legality and the procedures that the DHS unilaterally, and apparently incompetently, put in place for their “Stay in Mexico” program. Deputy AG Rod Rosenstein’s rewriting of the oath of office notwithstanding, U.S. Immigration Judges, like other Federal employees, swear an oath to uphold our Constitution (e.g., Due Process) not an oath of loyalty to the Attorney General, the President, or the DOJ.

PWS

03-24-19

EFFECTS OF TRUMP SHUTDOWN, “MALICIOUS INCOMPETENCE” CONTINUE TO ROIL U.S. IMMIGRATION COURT SYSTEM, SCREW MIGRANTS WHO FAITHFULLY SHOW UP FOR “FAKE” HEARINGS! – Trump Shut Down USG Over A Bogus “National Immigration Emergency” While Deeming Immigration Courts “Nonessential!” – Would ICE Agents Dare File “Charging Documents” Containing False Information With “Real” U.S. Courts?

https://www.cnn.com/2019/01/31/politics/immigration-court-fake-dates/index.html

By Catherine E. Shoichet, Angela Barajas and Priscilla Alvarez, CNN

Updated 10:15 PM ET, Thu January 31, 2019

Hundreds of people overflow onto the sidewalk in a line snaking around the block outside a U.S. immigration office with numerous courtrooms Thursday, Jan. 31, 2019, in San Francisco. (AP Photo/Eric Risberg)

(CNN)More than 1,000 immigrants showed up at courts across the United States on Thursday for hearings they’d been told were scheduled but didn’t exist, a lawyers’ group said, as the Justice Department struggles with an overloaded immigration court system and the effects of the recently ended partial government shutdown.

Immigration attorneys reported that lines wrapped around the court building in San Francisco, a line stretched for blocks to get into the court in Los Angeles and hundreds of people waited outside the court in Newark, New Jersey.

Thursday’s problems are the latest example of US immigration authorities issuing a large number of inaccurate notices ordering immigrants to appear at hearings that, it later turns out, had never been scheduled.

Lawyers first told CNN last year that they’d observed a wave of what they call “fake dates” pop up. For instance, lawyers reported examples of notices to appear issued for nonexistent dates, such as September 31, and for times of day when courts aren’t open, such as midnight.

“The immigration courts have reached a new crisis point,” said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association. The group said it tracked over 1,000 people showing up in courts Thursday with inaccurate hearing notices.

In Los Angeles, immigrants who had “fake dates” were given paperwork acknowledging they’d appeared at the immigration court, according to attorney Jonathan Vallejo, who provided this redacted copy of one such form.

‘I’m afraid and nervous’

Inside a packed waiting room at the Arlington Immigration Court on Thursday, confused immigrants clutching paperwork asked lawyers for help. Some said they’d driven hours to get to court and had awakened at 3:30 a.m. to arrive on time.

“I’m left with a question mark. I’m wondering, ‘Why?'” said Bigail Alfaro, 39, who’s seeking asylum with her two children. “I’m afraid and nervous.”

RELATED: The government shutdown took its toll on the nation’s immigration courts

As she prepared to head into court for a scheduled hearing, immigration attorney Eileen Blessinger found herself fielding questions and asking court officials to stamp paperwork to provide proof that immigrants had shown up.

“What happened?” one woman asked her.

“You don’t have court, because they made a mistake,” Blessinger said.

At an immigration court in Atlanta, a crowd of around 40 people were turned away, almost one by one, by a Spanish-speaking court employee telling people with notices that their hearings had been “postponed.”

Among those showing up for court were parents with small children, some dressed only with hooded sweatshirts and covering themselves with blankets, with the temperature in Atlanta in the mid-20s.

“They told us they would send us another citation by mail,” said a man named Jose who asked to be identified only by his first name. “But who knows when? And the hard part is they don’t let us know with enough time, enough time to prepare ourselves.”

In Los Angeles, immigration attorney Jonathan Vallejo said he saw 30-40 people ushered into a room where they were told they didn’t have hearings and given forms acknowledging they’d appeared at the court.

“It’s absurd what’s going on,” he said.

RELATED: Trump admin faces two big deadlines on family separation policy

Two lawyers. One court. And their fight against the odds.

Problems were also seen in Dallas, Miami and San Diego, Lynch said.

The Executive Office for Immigration Review, the division of the Justice Department that runs the immigration courts, said the weather and government shutdown were partially to blame.

The office “was unable to proceed with hearings for some respondents who believed they had hearings scheduled,” the Justice Department said in a statement. “In some cases, the cases had been rescheduled to another date, but the lapse in appropriations prevented the immigration courts from issuing new hearing notices far enough in advance of the prior hearing date.”

An ongoing problem

President Donald Trump has repeatedly criticized the nation’s immigration system, specifically taking issue with the practice of releasing immigrants while they await their court dates. To remedy that, his administration has sought to hire more immigration judges in the hopes of unclogging the court.

But that has not happened — there are 409 immigration judges nationwide but nearly 80 vacancies — and the number of cases continues to grow.

For years, the number of pending cases has been slowly creeping up, as more are added to the docket than can be addressed at any given time. There are more than 800,000 cases pending, according to the Syracuse University’s Transactional Records Access Clearinghouse.

Former Attorney General Jeff Sessions also created a quota system that requires judges to clear at least 700 cases a year in order to receive “satisfactory” performance evaluations. Between 2011 and 2016, judges completed 678 cases a year on average.

Judge Ashley Tabaddor, the president of the National Association of Immigration Judges, described judges in Los Angeles coming back this week to boxes filled to the rim with mail that had piled up over the course of the 35-day partial government shutdown.

“What this does is it adds greater delay to the cases. We were shortchanged five or four weeks of time,” Tabaddor told CNN. “Not only were we not able to hear cases that were previously cases that were scheduled, but it’s going to take time to regroup.”

RELATED: US immigration authorities detail so-called return-to-Mexico guidance for migrants

Immigration attorneys say the instances of mistakenly scheduled hearings unfairly burden immigrants and create more pressure on a system that’s already suffering from a crushing backlog.

“Imagine the stress of facing potential deportation,” North Carolina immigration attorney Jeremy McKinney said on Twitter. “You’re told show up in court or be ordered deported in your absence. You drive hundreds of miles & wait in line only to be told the court date was not real. ‘Sorry for the minor logistical errors.’ “

A NOTICE TO APPEAR AT MIDNIGHT (p. 1)

Atlanta immigration attorney Rachel Effron Sharma says this is an example of a notice a client received, ordering the client to report to an immigration court at a time when the court was closed.

View the entire document with DocumentCloud

The US Supreme Court ruled in June that notices to appear — the charging documents that immigration authorities issue to send someone to immigration court who’s accused of being in the United States illegally — must specify the time and place of proceedings in order to be valid.

Immigration and Customs Enforcement spokeswoman Jennifer Elzea said officials have been working to comply with the court’s requirements for notices to appear, but the lapse in funding during the partial government shutdown had delayed those administrative efforts.

“All appropriate parties are working together to solve this issue going forward,” she said.

In its statement Thursday, the Executive Office for Immigration Review said it had issued policy guidance in December and modified its system so the Department of Homeland Security and its components can directly schedule hearings.

The agency said it “does not expect any further recurrence of this type of situation.”

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Yup, and it happened in the “Bay Area” also:

https://www.sfchronicle.com/bayarea/article/Confusion-erupts-as-dozens-show-up-for-fake-13579045.php

Tatiana Sanchez reports for the SF Chronicle:

One woman pulled her daughter out of school to make it to the courthouse on Montgomery Street. Another caught a ride from Fresno. A teenage girl and her ailing mother waited for hours, clutching documents that summoned the mother to Immigration Court Jan. 31.

But none of them got what they came for and expected: a hearing before a judge.

Dozens of people reported Thursday to hearings previously scheduled by the Department of Homeland Security at the federal San Francisco Immigration Court, only to find the appointments didn’t exist.

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Immigration attorneys described similar scenes in Chicago, Atlanta, Virginia, Miami and Texas, where long lines snaked around courthouses for hours.

Federal officials said Thursday’s problems resulted from the government shutdown delaying the process of rescheduling the hearings.

But attorneys representing immigrants called the court dates fake, and said Immigration and Customs Enforcement is sending immigrants notices to appear — charging documents instructing people accused of being in the country illegally to come to court — with court dates it knows are not real.

“Every city in every jurisdiction is doing this, obviously knowing that there really won’t be court on that date,” said Christable Lee, an immigration attorney in San Francisco. “These immigrants are standing with their kids outside with no direction. They’re afraid to stand outside on the sidewalk in front of the courthouse because there could be other immigration authorities there. It’s a really harrowing situation.”

Attorneys say the new practice stems from a U.S. Supreme Court ruling, known as Pereira vs. Sessions that requires notices to appear to include a specific date and time in order to be valid. Previously, immigration authorities could send notices with the date listed as “to be determined.”

A similar situation occurred in several cities nationwide Oct. 31 when dozens of people showed up for court hearings that didn’t exist. Since then, some have reported court dates scheduled on weekends or late at night.

In a prepared statement, ICE denied giving immigrants a fake court date, saying, “Due to the recent partial lapse in government appropriations, the administrative process to resolve this issue was delayed, resulting in an expected overflow of individuals with Notices to Appear listing immigration proceedings on January 31.”

Meanwhile, the Executive Office for Immigration Review, which oversees all immigration courts, said it was “unable to proceed” with hearings for some people who “believed they had hearings scheduled” Thursday.

“In some cases, the cases had been rescheduled to another date, but the lapse in appropriations prevented the immigration courts from issuing new hearing notices far enough in advance of the prior hearing date,” the agency said in a statement. “In other cases, EOIR did not receive the Notice to Appear (NTA) in a timely manner. Immigration proceedings do not commence until the Department of Homeland Security has filed an NTA with an immigration court.”

Attorneys with the American Immigration Lawyers Association said they’ve received more than 1,000 reports of immigrants who had notices to appear in court containing fake dates, though they said it’s extremely difficult to track.

Mothers with small children, families and confused couples clutching manila folders crowded the sidewalk in San Francisco Thursday while others filled nearby coffee shops and restaurants after being told to come back a different day. The news was particularly troubling for immigrants who traveled several hours to get to the courthouse, many relying on relatives and friends for rides.

More than a dozen people waiting outside the courthouse declined to be interviewed but told The Chronicle that staff informed them court wasn’t in session Thursday. Some people who showed up in the morning were asked to come back later in the day, though it’s unclear what happened once they returned.

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As I’ve reported before on “Courtside,” contrary to the myths promoted by Trump, DOJ, and DHS, migrants generally appear for court when they get valid notice with real hearing dates and actually have the system explained to them (usually by an attorney); ironically, it’s often EOIR (“the lovable donkey”) that “Fails to Appear” (“FTA”) with an assist from their “partners in crime” over at ICE.

Would a “real court” let the “cops” run roughshod over them and their dockets as EOIR permits ICE to do? Would a “real President” shut down the Immigration Courts over a wall that will have NO, I repeat NO, “immediate impact” on migration while forcing tens of thousands of “ready to try removal cases” to the end of dockets that already stretch out four or more years in some locations?

Part of the problem is the continuing failure since the Clinton Administration of the DOJ to implement the statutory contempt of court authority granted to the Immigration Judges by Congress approximately two decades ago! A few contempt of court orders directed at ICE Agents and the ICE Chief Counsel who are failing to control their so-called “clients,” or perhaps at Secretary Nielsen herself, would bring these absurd, illegal, time-wasting practices that actually hurt real human beings and sow chaos in our justice system to a screeching halt!

That’s why an independent Article I Immigration Court is an essential priority in fixing our immigration system, including the procedures both for granting asylum and other relief promptly, fairly, and in accordance with due process, and issuing removal orders for those who don’t qualify. The current system does neither, for reasons largely beyond the control of the Immigration Judges (although some judges at both the trial and appellate level bear responsibility for failing to carry out in a fair and unbiased manner, consistent with due process, the generous, humanitarian statutes for the granting of asylum and implementing the legal mandates for other forms of protection from persecution and torture. That’s why a transparent, merit-based selection and reappointment system, with provision for public input is essential to an Article I system).

News from the “Journalism Carousel:” Star immigration reporter Priscilla Alvarez has moved to CNN from her prior birth over at The Atlantic. Congrats to Priscilla and to CNN!

PWS

02-01-19

PRISCILA ALVAREZ @ THE ATLANTIC: Sessions’s Influence Over Justice In The U.S. Immigration Courts Will Continue Long After His Departure!

https://www.theatlantic.com/politics/archive/2018/10/jeff-sessions-carrying-out-trumps-immigration-agenda/573151/

Priscilla writes in The Atlantic:

Dorothea Lay was on track to become a member of the Board of Immigration Appeals, part of the Justice Department’s Executive Office for Immigration Review. Her 25-year government career had prepared her for the post, as reflected in four letters of recommendation from academics and current and former officials. In December 2016, nine months after submitting her application, she was offered the job. But administrations changed, Jeff Sessions assumed the role of attorney general, and by early 2018, the offer was withdrawn.

Why?

That’s the question at the center of a complaint filed by Lay, an Idaho native, with the Office of Special Counsel, an independent federal investigative body. In a letter to Lay, 53, the Executive Office for Immigration Review said it rescinded her offer because “the needs of the agency have evolved,” even though the agency announced around the same time that it wanted to expand the size of the appeals board. The complaint suggests that political considerations may have been taken into account in reviewing Lay’s background, citing Lay’s letters of recommendation from people who “had liberal backgrounds or were perceived as having liberal backgrounds.”

The suspicion of politically based hiring has lingered among Democrats, who raised concerns in April and again in May. In the May letter, directed to Michael E. Horowitz, Democrats urged the inspector general of the Justice Department to investigate “allegations of politicized hiring practices,” citing cases in which offers for immigration judges and Board of Immigration Appeals positions had been delayed or withdrawn. (Lay’s attorney, Zachary Henige, is also representing two other people who claim their offers were withdrawn over political differences.) Assistant Attorney General Stephen Boyd responded to the Democrats’ allegations in a letter: “As stated in every immigration judge hiring announcement, the Department of Justice does not discriminate on the basis of political affiliation.”

The investigation into Lay’s complaint is ongoing, so it’s still not clear whether there were ulterior motives behind the withdrawal of her offer. But the case speaks to how DOJ can pick and choose who fills roles and in doing so, influence who’s at the helm of deciding immigration cases.

This isn’t unique to this administration. The Justice Department has considerable leeway when appointing immigration judges—the immigration courts are part of its direct purview. The attorney general therefore has unique authority to overrule decisions and hire immigration judges. To that end, Sessions appears to be shaping the court by, at the very least, hiring former law enforcement officials as immigration judges.

Read: The end of civil rights

“The more you bring people from the same background, the same set of experiences, the same perspective, the more you expose the court to criticism,” said Ashley Tabaddor, the president of the National Association of Immigration Judges. “Those decisions will be more open to being questioned.”

Of the 140 judges hired since Donald Trump’s inauguration, more than half have past prosecutorial experience or some other government experience. The pace of hiring has also stepped up: In fiscal year 2017, the Justice Department hired 64 immigration judges, compared to 81 in fiscal year 2018—bringing the total of immigration judges to 395, according to data released by EOIR. Sessions’s hiring spree is not unusual—and it’s also not unwarranted: His predecessors brought on new immigration judges, and the immigration court backlog also continues to creep up, with the latest figure at more than 760, 000 pending cases. Of the newly hired immigration judges, at least half had received conditional offers during the Obama administration, said Kathryn Mattingly, assistant press secretary at EOIR, in an email.

It’s not just how many immigration judges are being brought on but where they’re being located. EOIR has hired immigration judges for two adjudication centers—in Falls Church, Virginia, and Fort Worth, Texas—where cases from around the country will be heard through video teleconferencing. Judges will be located at the centers, while attorneys and respondents will be in separate locations. According to Rob Barnes, a regional public information officer for EOIR, immigration judges at these centers will be evaluated like others. It’s likely then that thousands of immigration cases will be heard with respondents never seeing a judge face to face.

Across the board, there appears to be a preference for people who come from an enforcement background, according to biographies of newly hired immigration judges posted by the Justice Department. Of the 23 judges announced in August, more than half previously worked with the Department of Homeland Security, and of those remaining, most came from a law enforcement background. In September, EOIR announced 46 new immigration judges, two of which will serve in a supervisory role: 19 previously worked for ICE, 10 had served at DOJ or as a former local prosecutor, and seven had a background in military (one of whom previously served in Guantánamo). It’s not yet known how these judges will rule once they’re on the bench and whether their enforcement background will inform their decisions. But experts, attorneys, and current and former immigration judges have warned about hiring too many people from government before.

“It’s not that we’re saying [those] with law enforcement or military background are unqualified,” Tabaddor, the head of the immigration judges association, told me. “A diverse bench is what brings fairness and legitimacy to court. It’s very important for a court to be reflective of the people it serves and the community at large to gain legitimacy and respect.”

Mattingly, the EOIR spokeswoman, has provided a series of specific qualifications that all candidates for immigration judge must possess.

Previous administrations also pulled from within government, reasoning that candidates have already passed background checks and can therefore be hired more quickly. But that can present some challenges. It’s possible that having spent years fighting in court on behalf of the government, an individual might be biased, said Jeremy McKinney, an immigration lawyer in North Carolina. The American Immigration Lawyers Association, of which McKinney is a part of, and National Association of Immigration Judges, have called for the pool of immigration judges to also include people from private firms and academia.

Read: Trump’s immigration crackdown is overwhelming a strained system

Their concerns were backed up by Booz Allen Hamilton, which conducted a year-long study of the immigration court system at EOIR’s direction. The April 2017 study found that at least 41 percent of immigration judges previously worked in the Department of Homeland Security, and nearly 20 percent worked at other branches within the Justice Department. The report recommended broadening “hiring pools and outreach programs to increase diversity of experience among [immigration judges].” It’s not clear whether the Justice Department took the study into account in putting together its hiring plan in April 2017, the same month the study was presumably handed over.

The hiring of immigration judges has always been a contentious issue: complaints have been lodged about there not being enough career diversity; it often takes months to hire judges (though the Justice Department recently pushed the time it took down from an average of 742 days to about 266 days); and political affiliations have previously been weighed in selecting judges. In 2008, the Inspector General issued a report on the hiring practices of DOJ in selecting attorneys, immigration judges, and members of the Board of Immigration Appeals. The report concluded that hiring based on political or ideological affiliation is in violation of department policy.

The fear, as expressed by some Democrats, legal experts and immigration advocates, is that Sessions is improperly seeking out conservatives in order to to influence the tilt of the nation’s immigration courts and hire a large cadre of immigration judges who will likely far outlast his tenure.

“I think he’s trying to get a complacent judiciary: ‘Forget the title, you guys are really DOJ employees, you’re out there to carry out my policies,’” said Paul W. Schmidt, former chairman of EOIR’s Board of Immigration Appeals from 1995 to 2001 and a former immigration judge.

Beyond who the Justice Department decides to bring on board, the message Sessions sends down to judges can also heavily influence their decisions, as direct reports to the department, Schmidt and others argue.

Read: The Democratic effort to keep Jeff Sessions in office

In September, for example, Sessions delivered remarks to a new class of immigration judges, the largest in history, according to the Justice Department, in which he pressed them to decide cases swiftly. “You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently,” he said. “As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload. I do not apologize for expecting you to perform, at a high level, efficiently and effectively.”

The message was striking given who it’s intended for. “If he was speaking to attorneys, that’d be normal. He has the right to set prosecutorial policy,” McKinney said. “That doesn’t translate to immigration judges.” Judges—even when they are DOJ employees—are expected to be independent. By effectively telling them how to handle cases and how quickly, the Justice Department is infringing upon that independence, McKinney said.

And Sessions’s words weren’t just an expression of what he hopes judges will do either. As of October 1, the expectation to “efficiently and effectively” adjudicate cases is being enforced. Earlier this year, the Justice Department took the unprecedented step of rolling out quotas for judges. To receive a “satisfactory” performance evaluation, judges are required to clear at least 700 cases a year. According to the Justice Department, judges complete 678 cases a year on average now, meaning they will have to pick up the pace to remain in good standing.

This fall, DOJ expects to bring on at least 75 more immigration judges. Even if Sessions days as attorney general are numbered, as Trump has suggested, his selections will decide the fate of immigrants, for years to come.

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While immigration advocates might look forward to the day of Session’s departure from DOJ just as much as Donald Trump does, in the case of immigration the wonton damage and carnage he has inflicted on our justice system, particularly in the area of immigration, won’t easily be repaired. And, the repairs can’t even begin until after we get “regime change.”

PWS

10-16-18

THE ATLANTIC: Priscilla Alvarez Analyzes The Trump/GOP Push For “Merit-Based” Immigration!

https://www.theatlantic.com/politics/archive/2017/03/trump-cotton-perdue-merit-based-immigration-system/518985/

Alvarez writes:

“President Trump’s proposal to shift towards a “merit-based” immigration system would upend an approach that has existed for half a century.

Since the 1960s, the United States’ immigration system has largely based entry on family ties, giving preference to those with relatives who are citizens. But in his first address to a joint session of Congress in February, Donald Trump proposed moving away from that policy, focusing instead on an immigration system that would prioritize high-skilled immigrants.

Trump and his advisors have argued that the current levels of immigration harm American workers by lowering wages and preventing assimilation. A merit-based system, restrictionist advocates believe, would help lower immigration rates and ensure that the immigrants who do come are high-skilled workers who never need public assistance. “The current, outdated system depresses wages for our poorest workers, and puts great pressure on taxpayers,” Trump said in his speech to Congress.

While the president has yet to offer details, a merit-based system would pose its own challenges to economic prosperity. Critics believe that a merit-based system that prioritizes high-skilled workers could hurt the economy by harming industries that rely on low-skill immigrant labor, and that fears that immigrants are not assimilating or are overly reliant on the social safety net are overblown.

The first example of the U.S. establishing qualifications for new immigrants was in 1917, when the government imposed a literacy test on those seeking to enter the country. In the 1960s, Congress lifted restrictions that heavily curtailed immigration from non-European nations, and reshaped the immigration system toward prioritizing admission of close relatives of immigrants already living in the United States. The overwhelming majority of immigrants are now admitted through that family-preference system, which significantly changed the ethnic composition of U.S. immigrant population by admitting more Latin American and Asian immigrants.

In 2015, for example, of the more than one million legal permanent residents admitted, “44 percent were immediate relatives of U.S. citizens, [and] 20 percent entered through a family-sponsored preference,” according to the Migration Policy Institute, a nonpartisan think tank. Only 14 percent of those admitted came through a job-based preference. The “merit-based” immigration system, in theory, would increase the latter figure, as it would prioritize those who are highly educated and therefore considered more employable.

Such a policy would likely limit the supply of low-skilled workers, and might allow the administration to filter which immigrants it chooses to admit. And a merit-based immigration system could also help realize a longtime conservative policy goal—a reduction in the number of immigrants admitted overall.

Some Republican lawmakers have already pushed for legislation that would limit legal immigration. Last month, Republican Senators Tom Cotton and David Perdue introduced legislation that would cut the number of immigrants legally admitted to the United States in half. It would do so in part by limiting the number of family members immigrants can sponsor for citizenship, a policy long sought by immigration restrictionist groups.

Dan Stein, the president of the Federation for American Immigration Reform, which supports curtailing immigration, said a merit-based approach could reduce the flow of immigrants coming into the United States. “The merit-system is also a surrogate for moving away from a system that the country doesn’t really get to control and regulate how many come in every year and who they are because of chain migration, the family-preference system,” Stein said, adding that a points system would be one part of the whole.

Nevertheless, assessing “merit” is difficult. A system that deliberately excluded low-skilled workers might raise labor costs in industries that rely on those workers, increasing prices for consumers but boosting wages for workers.”

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Read the full article at the link.

Third-year law student Saurabh Gupta introduced this article as part of our class discussion of “Family-Based Immigration” during my Immigration Law and Policy class at Georgetown Law last week. Needless to say, it provoked a lively and informative discussion, with students exploring the arguments on both sides as well of the practicalities of running such a system on a larger scale.

PWS

06-10-17

THE ATLANTIC: Priscilla Alvarez Gives The Real Scoop On Trump’s Failed Border Wall & Other Plans For Border Enforcement!

https://apple.news/ANv1VbtW7RSeRiPNUodE0rA

“Mick Mulvaney, the president’s budget director, said on Tuesday that the administration will replace segments of chain-link fencing with a 20-foot-tall steel fence along the southern border, despite Congress refusal to fund the president’s border wall in its spending bill.
Trump, for his part, has claimed that the administration is “beginning to build the wall,” which was a central plank of his presidential campaign, saying that “we’re putting up a lot of new wall in certain areas.” Mulvaney elaborated Tuesday that there is funding to “replace cyclone fencing with 20-foot high steel wall.” He declined repeated questions from White House reporters about where along the border the fencing would go, or how many miles it would cover.
He was apparently referring to a provision in the spending bill unveiled by Congress earlier this week, which falls well short of the president’s repeated pledges. The bill allocates a little more than $341 million “to replace approximately 40 miles of existing primary pedestrian and vehicle border fencing along the southwest border using previously deployed and operationally effective designs, such as currently deployed steel bollard designs, that prioritize agent safety; and to add gates to existing barriers.” According to a 2009 report by the Government Accountability Office, existing vehicle and pedestrian fencing along the border averaged somewhere between $1 and $3.9 million to erect. The budget allocation implies that replacing that fencing with a steel-bollard design would cost $8.5 million per mile.
In 2006, President George W. Bush authorized the construction of a 700-mile wall of double layer fencing under the Secure Fence Act. Still, to seal off the border entirely, the wall would have to extend roughly 2,000 miles. And that’s a costly endeavor. According to estimates by the Department of Homeland Security, the wall’s price tag could be as much as $21.6 billion.

So far, the administration has only secured funds to improve existing fencing. When pressed on whether that was the most effective way to spend funds, Mulvaney said, “There are certain places where technology will also help.” He also noted that constructing a wall along the entire southern border “is a several year process.”
Building a wall along the southern border is a difficult task, and that may be especially true for the administration as it tries to close off the border in new areas. Mulvaney suggested that the administration will also prepare for land acquisition. During the Bush years, the administration focused on areas where most of the land belonged to the federal government, but along the Texas-Mexico border, much of the land is private property, raising the issue of eminent domain. Republicans have expressed concerns over the use of eminent domain, which some argue is an example of big government overreach, setting up a whole separate challenge for the White House.”

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Read Priscilla’s complete article at the link! Trump just can’t admit that his really bad idea is — a really bad idea! And it’s not just Dems and advocates who think so!!

PWS

05-02-17

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.

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