Tag: Pro Bono Representation

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

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

Jeffrey writes:

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

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

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Read Jeffrey’s complete commentary at the link.

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

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

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

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

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

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

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

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

PWS

08-03-17

Related posts:

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

“BASIC ASYLUM TRAINING FOR LITIGATORS” — Read My July 25, 2017 Pro Bono Training Presentation For Jones Day!

Click on this link for a “Printable Copy”:

JONES DAY TRAINING

Here’s the “complete text:”

BASIC ASYLUM LAW FOR LITIGATORS

 

OUTLINE

 

I.  INTRODUCTION

II. WHO IS A REFUGEE?

A. Refugee Definition

B.  Standard of Proof

C.  What Is Persecution?

D.  Nexus

 

III. PARTICULAR SOCIAL GROUP

A.  The Three Requirements

B.  Success Stories

C.  The Usual Losers

D.  What Can Go Wrong?

E.  A Few Practical Tips on PSG

 

IV. PRACTICAL TIPS FOR PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT

V.  CONCLUSION

 

  1. INTRODUCTION

 

Good afternoon, and thanks for attending. As a former U.S. Immigration Judge at both the trial and appellate levels, and someone who has spent over four decades working in the field of immigration at all levels, I want to personally thank you for what you are doing.

 

Welcome to the “New Due Process Army” and our critical mission of forcing the U.S. Immigration Court system to live up to its unfulfilled promise of “guaranteeing fairness and due process for all.” Nothing is more important to achieving that mission than providing effective representation to individuals at the “retail level” of the system – the U.S. Immigration Courts.

 

There is a due process crisis going on in our U.S. Immigration Court system that threatens the integrity and the functioning of our entire U.S. justice system. And, the biggest need in the Immigration Courts is for effective legal representation of individuals seeking, expecting, and deserving justice in Immigration Court. Never has the need for pro bono attorneys been greater than it is now!

 

I appreciate the outstanding leadership and amazing commitment of your managing partner Steve Brogan, your Global Pro Bono Coordinator Laura Tuell, and folks like Mary Hale and many others who have been making this happen on a daily basis. It’s what I call “due process in action.” I know that Steve feels very deeply about the overwhelming need for everyone to get a day in court. He has written very forcefully and eloquently on it in the past and has certainly helped to raise the profile of the representation crisis facing our Immigration Courts.

 

Jones Day isn’t just “talking the talk.” Although it’s now been 25 years since the end of my time as a partner in Jones Day’s Washington Office, I am well aware of the tremendous time and financial commitment that your partnership is making to saving and preserving our justice system and in many cases to saving the very lives of the folks who depend on it. For, as Steve and others at the firm realize, our justice system is only as strong as its weakest link. If we fail in our responsibility to deliver fairness and due process to the most vulnerable individuals at the “retail level” of our system, then eventually our entire system will fail.

 

I also congratulate and appreciate your willingness to undertake representation in all types of cases, rather than “cherry picking” likely winners as is always a temptation. As a judge, I found that cases that look like “sure losers” at the Master Calendar sometimes turn into “winners” when a knowledgeable and dedicated attorney enters the picture.

 

Our Government is going to remove those who lose their cases to countries where some of them undoubtedly will suffer extortion, rape, torture, forced induction into gangs, and even death. Before we return individuals to such possible fates, it is critical that they have a chance to be fully and fairly heard on their claims for protection and that they fully understand and have explained to them the reasons why our country is unwilling or unable to protect them. Neither of those things is going to happen without effective representation.

 

We should always keep in mind that contrary to the false impression given by some pundits and immigration “hard liners,” losing an asylum case means neither that the person is committing fraud nor that he or she does not have a legitimate fear of return. In most cases, it merely means that the dangers the person will face upon return do not fall within our somewhat convoluted asylum system. And, as a country, we have chosen not to exercise our discretion to grant temporary shelter to such individuals through Temporary Protected Status, Deferred Enforced Departure, or prosecutorial discretion (“PD”). In other words, we are returning them knowing that the effect might well be life threatening or even fatal in many cases.

 

I also predict that you will make a positive difference in the development of the law. The well-prepared and articulate arguments that you make in behalf of a detained migrant are going to get attention and consideration from judges at all levels far beyond those presented by unrepresented individuals who can’t even speak English. It’s simply a fact of life. And, if you can win these cases, everything else you do in the law will be a “piece of cake.” I guarantee it.

 

Obviously, in representing your clients it is important to be polite, professional, and to let the excellence of your preparation, research, and arguments speak for you. In an overwhelmed system, judges are particularly grateful for all the help they can get. However, they are also under excruciating pressure to complete cases, particularly detained cases. So it is important to clearly identify your issues, focus your examination, and make sure that your “phone books” of evidence are properly organized and that there is a “road map” to direct the Immigration Judge and the Assistant Chief Counsel to the key points. You want to help the judge, and your opponent, get to a “comfort zone” where he or she can feel comfortable granting, or not opposing or appealing, relief.

 

I do want to offer one important piece of advice up front. That is to make sure to ask your client if her or his parents or grandparents, whether living or dead, are or were U.S. citizens. Citizenship is jurisdictional in Immigration Court, and occasionally we do come across individuals with valid but previously undeveloped claims for U.S. citizenship. You definitely want to find out about that sooner, rather than later, in the process.

My presentation today will be divided into three sections. First, we will go over the basic refugee definition and some of its ramifications. Second, I will provide some basic information about particular social group or “PSG” claims. Third, I will give you fourteen practical pointers for effectively presenting asylum cases in Immigration Court.

 

Please feel free to ask questions as we go along, or save them until the end.

 

II.        WHO IS A REFUGEE?

 

In this section, I will first discuss the INA’s definition of “refugee.” Second, I will talk about the standard of proof. Third, we will discuss the meaning of the undefined term “persecution.” I will conclude this section with a discussion of the key concept of “nexus.”

A.        Refugee Definition

 

An “asylee” under U.S. law is basically an individual who satisfies the “refugee” definition, but who is in the U.S. or at our border in a different status, or with no status at all. Most of your clients will fall in the latter category.

The definition of “refugee” is set forth in section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). There are four basic elements:

  1. Generally, outside the country of nationality (not usually an issue in border cases);
  2. Unwilling or unable to return (failure of state protection);
  3. Because of persecution (undefined) or a well founded fear of persecution;
  4. On account of race, religion, nationality, membership in a particular social group, or political opinion (“nexus”).

 

There are some important exclusions to the refugee definition, the most frequent ones being the one-year filing deadline for asylum, those who have committed serious nonpolitical crimes outside the U.S. or particularly serious crimes in the U.S., persecutors of others, those who have rendered material support to a terrorist organizations, and those who are firmly resettled in another country. I won’t be going into these in detail today, but you should know that they are there, and I’d be happy to take questions on them. The ground most likely to come up in your cases is the one relating to individuals who have committed crimes.

Some individuals who are ineligible for asylum might still be eligible to receive withholding of removal under section 243(b) of the INA, 8 U.S.C., § 1253(b) or withholding of removal under the Convention Against Torture (“CAT”). And, everyone can potentially seek so-called “deferral of removal” under the CAT.

Also, please note that because of the requirement of a “nexus” to a “protected ground” not all types of harm trigger protection. In particular, crimes, wars, random violence, natural disasters, and personal vengeance or retribution often do not qualify individuals for refugee status. However, some of these circumstances might be covered by the CAT, which has no nexus requirement.

The source of the “refugee” definition is he Refugee Act of 1980 which codified and implemented the U.N Convention and Protocol on the Status of Refugees to which the U.S. adhered in 1968. There are, however, some differences between the U.S. definition and the Convention definition, which I won’t go into today. But, again, you should be aware they exist, since some international or U.N. interpretations of the definition might be inapplicable under U.S. law.

B.        Standard of Proof

 

The standard of proof in asylum cases was established by the Supreme Court in 1987 in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In asylum cases, a “well-founded” fear is something far less than a probability. It is an “objectively reasonable fear” or the type of fear that a “reasonable person” would have under the circumstances. Most courts and authorities have adopted the “10% chance” example set forth in Justice Stevens’s plurality opinion in Cardoza.

The BIA’s implementation of Cardoza, the 1987 precedent Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), makes the point that the persecution can be “significantly less than probable.” Your challenge as lawyers will be to get judges at all levels of our system to actually apply the generous Cardoza-Mogharrabi standard rather than just mouthing it. Sadly, the latter still happens too often, in my opinion.

A different and higher “more likely than not” standard applies to withholding of removal under the INA and to withholding and deferral of removal under the CAT. One great tool for satisfying the standard of proof for asylum or withholding under the Act is the rebuttable regulatory presumption of future persecution arising out of past persecution set forth in 8 C.F.R. 1208.13. This is a really important regulation that you should basically learn “by heart.” I will reference it again in the “practical tips” section of this presentation.

Withholding and CAT are more limited forms of relief than asylum. While they usually provide work authorization, they do not lead to green card status, allow the applicants to bring relatives, or travel abroad. They are also easier to revoke if conditions change. Nevertheless, there is one major advantage to withholding and CAT: they save your client’s life. Sometimes, that’s the best you can do. And, fundamentally, saving lives is really what this business is all about.

C.        What Is Persecution?

 

Remarkably, neither the Convention nor the INA defines the term “persecution.” Consequently, U.S. Immigration Judges, the Board of Immigration Appeals (“BIA”), and the U.S. Courts of Appeals are constantly referring to certain types of harm as “mere discrimination or harassment” not “rising to the level” of “persecution.” Often these highly subjective conclusions seem to be more in the mind of the judicial beholder than in the record or the law.

In the absence of a firm definition, I have found the most useful practical guidance to be in an opinion by the famous, or infamous, Judge Richard Posner of the Seventh Circuit Court of Appeals in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7th Cir. 2011). Judge Posner gave three examples.

“The three forms are discrimination, harassment, and persecution. The first refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.”

Second: “Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had [police] furious at [the respondent’s] being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment. A common form of sexual harassment is pestering a subordinate for a date or making lewd comments on her appearance, or perhaps hugging her, which is physical but generally not violent.”

Third: “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.”

These definitions are, of course, not binding outside the Seventh Circuit. But, I find them to be practical, usable definitions that I certainly found helpful in making asylum decisions in the Fourth and other circuits.

D.        Nexus

 

The concept of “nexus” or “on account of” has become critical in asylum adjudication. Indeed, that is where many of your upcoming battles will be focused. In many cases these days the DHS will concede the “particular social group” (“PSG”) and just argue that the harm has no “nexus” to that PSG or any other protected ground.

The REAL ID Act amended the INA to require that for an asylum applicant to prove ”nexus” or “on account” of any protected ground, he or she must show that the protected ground is “at least one central reason” for the feared persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1208(b)(1)(B)(i) While this did not eliminate the frequently encountered “mixed motive” situation, it was intended to “tighten up” prior case law that had referred to the persecution as stemming “in whole or in part” from a protected ground.

The BIA ruled in Matter of C-T-L-, 25 I & N Dec. 341 (BIA 2010) that the “one central reason” test also applies to nexus in the withholding of removal context. However, the Ninth Circuit rejected the BIA’s interpretation in Barajas-Romero v. Lynch, 846 F.3d 351 (BIA 2014), maintaining that the more generous “in whole or in part” test should continue to apply to withholding cases under the INA. To my knowledge, the Fifth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fifth Circuit at present.

Unfortunately, the BIA has given a very narrow reading to the “one central reason” test. In a recent precedent, Matter of L-E-A-, 27 I &N Dec. 40 (BIA 2017), the respondent was a member of a family social group. He clearly was targeted by a cartel in Mexico because he was a member of a family that owned a grocery store. In other words, “but for” the respondent’s family membership, he would not have been targeted by the gang.

Nevertheless, instead of granting the case, the BIA looked beyond the initial causation. The BIA found that “the respondent was targeted only as a means to achieve the cartel’s objective to increase its profits by selling drugs in the store owned by his father. Therefore the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent. Any motive to harm the respondent because he was a member of his family was, at most, incidental.” 27 I&N Dec. at 46 (citations omitted). Accordingly, the BIA denied the case.

Unfortunately, the BIA cited and relied upon an analysis of nexus in a similar case by the Fifth Circuit in Ramirez-Mejia v. Lynch, 794 F.3d 485n (5th Cir. 2015). Consequently, you will have to deal with the restrictive interpretation in L-E-A- and Ramirez-Mejia.

The BIA, and to some extent the Fifth Circuit, have essentially used the “nexus” requirement to “squeeze the life” out of the family PSG. We can see that the normal rules of legal causation have been suspended. The respondent would not have been targeted by the cartel had he not belonged to this particular family. Yet, the BIA searched for and found an “overriding motive” that did not relate to a protected ground and determined that to be the “central reason” and the family PSG to be “tangential.”

What kind of case could succeed under L-E-A-? Well, perhaps not wanting to give anyone any practical ideas on how to qualify, the BIA searched history and came up with the execution of the Romanov family by the Bolsheviks as an example of a where family was a “central reason” for the persecution. So, maybe if the respondent’s father were a major donor to a political party that opposed cartels, a member of a religion that opposed drugs, or a member of a hated minority group, the respondent’s family membership could have been “at least one central reason.”

But the Romanov family case would have been grantable on actual or imputed political opinion grounds. The other examples I gave would have been more easily grantable on actual or implied political opinion, religion, or nationality grounds. So the BIA appears to made the family PSG ground largely superfluous.

This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A-, the BIA is unlikely to retreat from L-E-A-, and the Fifth Circuit seems disposed to go along with the L-E-A- view.

On the other hand, to my knowledge, L-E-A- has not actually been considered and endorsed by any circuit to date. To me, it appears to be inconsistent with some of the existing family-based nexus case law in the Fourth and Ninth Circuits. So, I wouldn’t be shocked if a “circuit split” eventually develops and the issue finally wends its way to the Supreme Court. Who knows, maybe one of you will be arguing it.

In any event, in my view, it is too early for you to “waive” strong nexus arguments even if they will be rejected under L-E-A-. On the other hand, that’s not likely to solve your detained client’s current problems.

So, what can you do? First, look for legitimate ways to distinguish L-E-A-. Assume that the DHS will “pull out the stops” in arguing that everything but family was the central reason –greed, lust, crime, random violence, personal vengeance, envy, resentment, etc. Look for evidence in the record that the dispute really was, to a major extent, about family, rather than one of the non-qualifying grounds.

Second, look for some qualifying non-family PSG or a “more conventional” religious, nationality, racial, or political motive.

Third, consider the possibility of CAT protection. The advocacy community probably underutilizes CAT. CAT doesn’t have a specific nexus requirement and often can be proved by extensive documentary or expert evidence, both Jones Day specialties. Sure, the standard of proof is high and CAT is a lesser form of relief than asylum. But, it saves your client’s life! And, if the nexus law changes in your favor, you can always file a motion to reopen to re-apply for asylum under the changed law.

This is an area of the law where creativity, preparation, and persistence often pay off in the long run. So, don’t give up. Keep on fighting for a reasonable and proper application of the “refugee” definition and for the rights of your clients.

III.      PARTICULAR SOCIAL GROUP

 

In this section I will talk about the three basic requirements for a PSG, the success stories, the usual failures, things that can go wrong, and offer you a few practice pointers directly related to PSG claims.

A.        The Three Requirements

 

The BIA has established three requirements for a PSG.

  1. Immutability or fundamental to identity;
  2. Particularity; and
  3. Social distinction.

 

These three requirements are usually used to deny rather than grant protection. Indeed, most of the BIA’s recent precedents on PSG are rendered in a decidedly negative context.

There was a time about two decades ago when many of us, including a number of BIA Members, thought that immutability or fundamental to identity was the sole factor. But, following our departure, the BIA attached the additional requirements of “particularity” and “social visibility” now renamed “social distinction” to narrow the definition and facilitate denials, particularly of gang-based PSG claims.

The particularity and social distinction requirements basically work like a “scissors” to cut off claims. As you make your definition more specific to meet the “particularity” requirement it often will become so narrow and restrictive that it fails to satisfy “social distinction.” On the other hand, as your proposed PSG becomes more socially distinct, it’s likely that it will become more expansive and generic so that the BIA will find a lack of “particularity.”

While the UNHCR and many advocacy groups have argued for a return of immutability as the basic requirement with “social distinction” as an alternative, not an additional requirement, the BIA recently reaffirmed its “three criteria” approach. These cases, Matter of M-E-V-G-, 26 I &N Dec. 227 (BIA 2014) and its companion case Matter of W-E-G-, 26 I &N Dec. 208 (BIA 2014), are “must reads” for anyone doing PSG work.

About the only bright spot for advocates was that the BIA in M-E-V-G– rejected the commonly held view that no gang-based case could ever succeed. The BIA said that its decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. Social group determinations are made on a case-by-case basis. For example, a factual scenario in which gangs are targeting homosexuals may support a particular social group claim. While persecution on account of a protected ground cannot be inferred merely from acts of random violence and the existence of civil strife, it is clear that persecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground.” 26 I&N Dec. at 251 (citations omitted).

In other words, the Board is asking for evidence intensive case-by-case adjudications of various proposed PSGs. Leaving aside the fairness of doing this in a context where we know that most applicants will be detained and unrepresented, I cannot think of an organization better suited to give the BIA what it asked for than Jones Day – you guys!

B. Success Stories

There are four basic groups that have been relatively successful in establishing PSG claims.

  1. LGBT individuals under Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990);
  2. Women who fear or suffered female genital mutilation (“FGM”) under my decision in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996);
  3. Victims of domestic violence under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); and
  4. Family under the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th 2011), a case in which I was the Immigration Judge and Jones Day was pro bono counsel.

You should note that the first three of these success stories had something in common: strong support across a wide spectrum of the political universe. In fact, in LGBT, FGM, and domestic violence cases the DHS eventually changed its position so as to not oppose the recognition of the PSG. This, in turn, either facilitated or perhaps effectively forced the BIA to recognize the PSG in a precedent.

Family, on the other hand, has generally not developed the same type of political consensus as a PSG for asylum purposes. I have already discussed in detail how notwithstanding the clear logic of family as a PSG, the BIA uses a highly restrictive reading of the “nexus” requirement that prevents many family groups from qualifying for protection.

You probably will not encounter too many FGM cases at the Southern Border. Nevertheless, there are two additional important points established by Kasinga. First, the respondent does not have to establish that the persecutor acted or will act with “malevolent intent.” Persecution may be established even where the persecutor was inflicting the harm with the intent to “help” or “treat” the respondent. This comes up frequently in connection with LGBT claims.

Second, Kasinga holds that to justify a discretionary denial of asylum for a respondent who otherwise meets all of the statutory requirements, the adverse factors must be “egregious” so as to outweigh the likely danger of persecution.

You are likely to find a number of Southern Border cases involving LGBT individuals, domestic violence, and family. In the Arlington Immigration Court during my tenure these cases succeeded at an extremely high rate, so much so that many of them went on my “short docket.” However, that was then and this is now. And, sadly, you won’t be presenting these cases in Arlington.

Finally, there are some “up and comer” PSG’s that have had success in some of the circuits and might eventually gain widespread acceptance. Among these are witnesses, landowners, and women subjected to forced marriages. The latter often can more successfully be presented under the domestic violence category. The Fourth Circuit actually has recognized “former gang members” as a potential PSG, although many such individuals will have difficulties under the criminal exclusions from the refugee definition. Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014).

C. The Usual Losers

PSGs that don’t fit any of the categories I just mentioned are usually “losers.” Chief among the “usual losers” are victims of crime other than domestic violence, informants, extortion victims, and those resisting gang recruitment. You’ll probably see a fair number of such cases at the Southern border. Your challenge will be how to present them in a way that overcomes the negative connotations normally associated with such claims.

D. What Can Go Wrong?

Lots of things can go wrong with a PSG case. First, there is the issue of “circularity.” Generally, a PSG cannot be defined in terms of itself. For example “victims of crime” would generally be a “circular” social group.

An easy test is to use your proposed PSG in a simple sentence: “This respondent was harmed to overcome the characteristic of being _________. If you can’t say with with a straight face in open court, don’t use it. For example, “this respondent was raped to overcome her characteristic of being a victim of rape” isn’t going to make it as a PSG.

We’ve already talked about how PSG claims can be attacked by denying the nexus. There are also the old favorites of lack of credibility or corroboration. Then, there is failure to meet the one-year filing deadline, no failure of state protection, reasonably available internal relocation, and fundamentally changed country conditions.

That’s why if you’re considering a PSG claim, it’s always wise to have “Plan B.” The problem today, however, is that the Administration has restricted or limited many of the “Plans B.” For example, until recently, the number one “Plan B” was to request prosecutorial discretion (“PD”) from the Assistant Chief Counsel if the respondent had sympathetic humanitarian factors, a clean criminal record, and strong ties to the U.S. However, for all practical purposes, this Administration has eliminated PD.

Nevertheless, its always worthwhile to think about whether things like Wilberforce Act treatment for certain unaccompanied juveniles, Special Immigrant Juvenile Status, “T” visas for trafficking victims, “U” visas for victims of crime, or benefits under the Violence Against Women Act (“VAWA”) might be realistic possibilities for your client.

E.  A Few Practical Tips on PSG

I’m going to close this section by offering you a few practical tips on presenting PSG cases that will also tie into my next major section.

First, think “25 words or fewer.” Just like the old boxtop contests from my youth. There are few, if any, known examples of success using lengthy, convoluted social group definitions.

 

Second, remember folks, it isn’t “making sausages.” The definition that goes in must be the same one that comes out the other end. Social groups that “morph” during the hearing just have no chance.

 

Third, be prepared to explain how your proposed particular social group meets the current BIA criteria of immutability, particularity, and social distinction, formerly known as “social visibility.”

 

Fourth, make sure that your respondent is actually a member of the particular social group you propose. You would be surprised at the number of counsel who propose a particular social group definition and then fail to offer proof that their client actually fits within that group.

 

Fifth, as I just mentioned, check your particular social group for “circularity.”

Sixth, and finally, be prepared for an onslaught of other arguments against your case, the chief of which probably will be “no nexus.” Normally, the DHS will “pull out all the stops” to prevent the recognition of a new PSG.

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

You should all have received a copy of my comprehensive three-page treatise on asylum law entitled “Practical Tips For Presenting an Asylum Case In Immigration Court,” Feb. 2017 Revised Edition. I’m going to quickly take you through the fourteen practical tips outlined there.

My first tip is, “Read a Good Book.” My strong recommendation is the one that has always been at the top of the Immigration Court Best Seller List: Title 8 of the Code of Federal Regulations, 2017 edition.

 

Specifically, I invite your attention to Chapter 1208, which contains the seeds of all winning theories of asylum law, past, present, and future. It will also give you gems like how to shift the burden of proof to the DHS and how to win your case even if your client does not presently have a well-founded fear of persecution.

 

Second, “Get Real.” The REAL ID Act, P.L. 109-13, 119 Stat. 231 (2005), deals with credibility and burden of proof issues in asylum and other cases and applies to applications “made” on or after May 11, 2005, which will be all of your cases. Read it and decide how it can help you and how you can respond to DHS arguments.

 

Third, “Know One When You See One.” The one-year filing requirement of section 208(a)(2)(B) of the INA bars asylum in some cases. Your burden of proof on the one-year filing issue is very high: “clear and convincing evidence.” Judicial review might be limited. But, there are exceptions. Read the statute and the regulations at 8 C.F.R. § 1208.4 to find out how the filing requirement works and what arguments might be made to preserve a late asylum application. Remember that the one-year requirement does not apply to withholding of removal under the INA or to CAT applications.

 

At the beginning of each asylum case, I asked the parties to identify the issues. Respondents’ attorneys invariably told me about past persecution, future persecution, nexus, gender-based persecution, exceptions to the one year filing deadline, weird social groups, and so forth. The issue they sometimes fail to identify is the one that’s always first on my list. What is it?

 

 

That’s right, credibility, is the key issue in almost all asylum litigation. So, my fourth rule is “Play To Tell the Truth.” You must understand what goes into making credibility determinations and why the role of the Immigration Judge is so critical. Often, adverse credibility determinations are difficult to overturn on appeal. It’s all about deference.

 

But, credible testimony might not be enough to win your case. That’s why my fifth rule is “Don’t Believe Everything You Read.” Both appellate and trial court decisions often recite rote quotations about asylum being granted solely on the basis of credible testimony.

However, to give your client the best chance of winning his or her asylum case in immigration Court, under the law applicable in most circuits, you’re likely to need a combination of credible testimony and reasonably available corroborating evidence. Read Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), largely codified by REAL ID, and find out what it really takes to win an asylum case in most Immigration Court.

 

In this respect, you should remember my corollary sixth rule “Paper Your Case.” According to Fourth Circuit precedent, even a proper adverse credibility ruling against your client might not be enough for an Immigration Judge to deny the asylum claim. The Judge must still examine the record as a whole, including all of the documentation supporting the claim, to determine whether independent documentary evidence establishes eligibility for asylum. Read Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) and discover how the power of independent documentary evidence can overcome even a sustainable adverse credibility finding. Also, remember that the REAL ID Act directs Immigration Judges to consider “the totality of the circumstances, and all relevant factors.”

 

“Read Your Paper” is my seventh important rule. You and your client are responsible for all the documentation you present in your case. Nothing will give you nightmares faster than having a client present false or fraudulent documentation to the Immigration Court. In my experience, I’ve had very few attorneys able to dig out of that hole. So, don’t let this happen to you.

 

My eighth rule is “Pile it On.” Sometimes, as demonstrated in one of my very favorite cases Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), reaffirmed in Matter of L-K-, 23 I&N Dec. 677, 683 (BIA 2004), you will be able to take a series of events happening to your respondent, his or her family, or close associates, none of which individually perhaps rises to the level of persecution, and combine them to win for your client.

 

My ninth rule is “Don’t Get Caught by the Devil.” The devil is in the details. If you don’t find that devil, the DHS Assistant Chief Counsel almost certainly will, and you will burn. Also, make sure to put your client at ease by carefully explaining the process and by going over the direct and cross-examinations in advance. Remember the cultural and language barriers that can sometimes interfere with effective presentation of your case.

 

I found the DHS Assistant Chief Counsel in Arlington were all very nice folks. They were also smart, knowledgeable, well prepared, and ready to vigorously litigate their client’s positions. They handled more trials in a year than most litigators do in a lifetime. So, beware and be prepared. You would also be wise to contact the Assistant Chief Counsel in advance of any merits hearing to discuss ways of narrowing the issues and possible “Plans B.”

 

My tenth rule is “Know Your Geography.” Not all Immigration Courts and Circuit Courts of Appeals are located on the West Coast. The BIA certainly is not. You must know and deal with the law in the jurisdiction where your case actually is located, not in the one you might wish it were located.

 

For example, the Arlington Immigration Court is in Crystal City. That is in Virginia, which is not presently part of the Ninth Circuit. Nor are the courts in Texas where most of you will be appearing.

 

This is something that I once had trouble with, coming to the Arlington Court from a job where the majority of asylum cases arose in the Ninth Circuit. But, I got over it, and so can you.

 

My eleventh rule is to “Get Physical.”   In defining persecution, some Circuits have emphasized “the infliction or threat of death, torture, or injury to one’s person or freedom.” See, e.g., Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). While the Circuits and the BIA have also recognized non-physical threats and harm, your strongest case probably will be to emphasize the physical aspects of the harm where they exist. Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010); Matter of T-Z-, 24 I & N Dec. 163 (BIA 2007).

 

I particularly recommend the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), which found that the BIA erred in rejecting my conclusion that “unrebutted evidence of death threats against [the respondent] and his family members, combined with the MS-13’s penchant for extracting vengeance against cooperating witnesses, gave rise to a reasonable fear of future persecution.” In other words, I was right, and the BIA was wrong. But, who’s keeping track?

 

My twelfth rule is “Practice, Practice, Practice.” The Immigration Court Practice Manual, available online at the EOIR web site http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm was effective July 1, 2008, and replaced all prior local rules. All filings with the Immigration Court must comply with the deadlines and formats established in this Practice Manual. The Practice Manual has a very helpful index, and it covers just about everything you will ever want to know about practice before the Immigration Courts. It contains useful appendices that give you contact information and tell you how to format and cite documents for filing in Immigration Court. Best of all, it’s applicable nationwide, so you can use what you learn in all Immigration Courts.

 

My thirteenth, rule is “It’s Always Wise to Have ‘Plan B.’” As I have pointed out, asylum litigation has many variables and opportunities for a claim to “go south.” Therefore, it is prudent to have a “Plan B” (alternative) in mind.

 

Among the “Plans B” that regularly came up in Arlington were: prosecutorial discretion (“PD”), Special Rule Cancellation of Removal (“NACARA”), Temporary Protected Status (“TPS”), non-Lawful Permanent Resident Cancellation of Removal (“EOIR 42-B”), Deferred Action for Childhood Arrivals (“DACA”), Special Immigrant Juvenile (“SIJ”) status, I-130 petition with a “stateside waiver” (“I-601A”), “Wilberforce Act” special processing for unaccompanied children (“UACs”), T nonimmigrant status (for certain human trafficking victims), and U nonimmigrant status (for certain victims of crime). In my experience, many, perhaps the majority, of the “happy outcome” asylum cases coming before me were resolved on a basis “OTA,” that is “other than asylum.”

 

But, unfortunately in my view, the “Plan B” world is rapidly changing. So, please listen very carefully to the caveat that comes next.

 

Fourteenth, hope for the best, but prepare for the worst. As some have said “there’s a new Sheriff in town,” and he’s announced a “maximum immigration enforcement” program targeting anyone who has had any run-in with the law, whether convicted or not. He also intends to detain all undocumented border crossers or applicants for admission at the border. So, you can expect more arrests, more detention (particularly in far-away, inconvenient locations like, for instance, Laredo, TX), more bond hearings, more credible and reasonable fear reviews, more pressure to move cases even faster, and an even higher stress level in Immigration Court.

 

The “Plans B” involving discretion on the part of the Assistant Chief Counsel, like PD, DACA, and stateside processing, and even waiving appeal from grants of relief, are likely to disappear in the near future, if they have not already. In many cases, litigating up through the BIA and into the Article III Federal Courts (where the judges are, of course, bound to follow the law but not necessarily to accept the President’s or the Attorney General’s interpretation of it) might become your best, and perhaps only, “Plan B.”

V. CONCLUSION

 

In conclusion, I have told you about the basic elements of the refugee definition and how it is used in adjudicating asylum cases. I have also discussed the requirements and the pros and cons of the PSG protected ground. And, I have shared with you some of my practical tips for presenting an asylum case in U.S. Immigration Court.

 

Obviously, I can’t make you an immigration litigation expert in in afternoon. But, I trust that I have given you the basic tools to effectively represent your clients in Immigration Court. I have also given you some sources that you can consult for relevant information in developing your litigation strategy and your case.

 

I encourage you to read my blog, immigrationcourtside.com, which covers many recent developments in the U.S. Immigration Courts. As you come up with victories, defeats, good ideas, appalling situations, or anything else you think should be made more widely available, please feel free to submit them to me for publication. I also welcome first-hand accounts of how the system is, or isn’t, working at the “retail level.”

 

Thanks again for joining the New Due Process Army and undertaking this critical mission on behalf of the U.S. Constitution and all it stands for! Thanks for what you are doing for America, our system of justice, and the most vulnerable individuals who depend on that system for due process and justice.

 

Thanks for listening, good luck, do great things, and Due Process Forever! I’d be pleased to answer any additional questions.

 

© Paul Wickham Schmidt, 2017, All Rights Reserved.

(08-01-17++)

 

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PROGRAM NOTE: I am a former Partner at Jones Day. resident in the Washington, D.C. Office.

 


 

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

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

 

Keynote Address by

 

Paul Wickham Schmidt

 

United States Immigration Judge (Retired)

 

LIGHT OF LIBERTY AWARDS

 

Pennsylvania Immigration Resource Center

 

Heritage Hills Golf Resort

 

York, PA

 

JUNE 7, 2016

 

  1. I. INTRODUCTION

 

 

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

 

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

 

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

 

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

 

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

 

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

 

II. THE DUE PROCESS CRISIS IN IMMIGRATON COURT

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

III. ACTION PLAN

 

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

 

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

           

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

           

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

          

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

 

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

 

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

 

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

 

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

           

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

           

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

 

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

 

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

 

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

 

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

 

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

IV. CONCLUSION

 

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

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

 

(06-08-17)

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

ATTORNEY OF THE YEAR:

Rosina Stambaugh, Esquire

LAW FIRM OF THE YEAR

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

CONTINUING COMMITMENT TO JUSTICE INDIVIDUAL:

Professor Jill Family,

Widener University Delaware Law School

INTERPRETER OF THE YEAR

Rosalyn Groff

COMMUNITY VOLUNTEER OF THE YEAR:

Dr. Anne Middaugh

CONTINUING COMMITMENT TO JUSTICE ORGANIZATION:

Philadelphia Bar Foundation

VOICE OF COURAGE:

Josia Nunes

 

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

Pictures and other news from this wonderful event to follow.

PWS

06-08-17

 

 

 

 

 

 

 

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

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

Fertig reports:

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

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

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

“NYC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

06-06-17

 

Related posts:

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

HERE IT IS! — The “Gibson Report” For April 17, 2017!

Gibson Report — April 17, 2017

Thanks again to Elizabeth Gibson, former Arlington Immigration Court Intern and “Georgetown Law RLP’er” now Immigrant Justice Corps Fellow/Staff Attorney, Immigrant Protection Unit, New York Legal Assistance Group!

PWS

04-17-17

 

Related posts:

  1. THE GIBSON REPORT FOR 12-18-17 – RECOGNIZING: The Absolutely Amazing ELIZABETH GIBSON Of The NY Legal Assistance Group and ALL She Does For Fairness, Justice, & Due Process! — MAKING A DIFFERENCE IN THE LIVES OF OUR MOST VULNERABLE!
  2. THE GIBSON REPORT — 11-27-17
  3. THE GIBSON REPORT — 09-15-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
  4. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️

DUE PROCESS CRISIS IN THE U.S. IMMIGRATION COURTS: New Report Finds That Detained Migrants In The Arlington & Baltimore Courts Face Severe Access To Counsel Problems Which Can Be “Outcome Determinative!”

https://populardemocracy.org/sites/default/files/DC_Access_to_Counsel_rev4_033117 (1).pdf

This report (see link) was prepared and issued by the Center For Popular Democracy. Here are some key findings:

  • Every year, nearly 4,000 people in Washington, D.C. metropolitan area courts, Arlington, Virginia, and Baltimore, Maryland, face deportation in civil immigration court without the assistance of a lawyer. Based on original data analysis of Department of Justice records obtained through a Freedom of Information Act request, seven out of ten detained individuals in immigration court removal proceedings in Arlington, VA and eight out of ten in Baltimore, MD did not have any legal representation.
    • ■  People without lawyers faced enormous odds in fighting their deportation cases. Among detained immigrants without lawyers, people in Arlington were only successful in their cases 11 percent of the time and unrepresented people in Baltimore only successful 7 percent of the time.
    • ■  Having a lawyer in Arlington more than doubled a person’s chances of being able to remain in the U.S. and quadrupled a person’s chance of obtaining relief in Baltimore.
  • ■  Between 2010 and 2015, Immigration and Customs Enforcement (ICE) detained nearly 15,000 people in local and county jails2 throughout the states of Maryland and Virginia. In both regions, people who did not have lawyers were more than twice as likely to remain detained during the entirety of their immigration case, even if they may have been eligible for release on bond.
  • **************************************

Read the entire report which has some case histories in addition to charts and graphs.

The findings are disturbing because the Arlington and Baltimore Immigration Courts generally are considered among the best in the nation in striving to provide due process. The judges in each court are committed to representation and often go out of their way to encourage and facilitate the appearance of counsel. The ICE Chief Counsel’s Offices also appreciate and support pro bono representation.

Additionally, as noted in the report, the DC-Baltimore metropolitan area has a number of great organizations dedicated to providing pro bono lawyers, as well as local practitioners, “big law” firms, and numerous outstanding law school clinics, all of which support the pro bono program.

Yet even under these generally favorable conditions, the overwhelming majority of individuals on the detained dockets in both courts appear pro se, without a lawyer. And, the results with a lawyer are very significantly better than for those forced to represent themselves.

I fear that the new program of expanded immigration detention being planned by DHS, with courts operating in obscure, out of the way locations along the Southern Border, will further impede already limited access to counsel and therefore further degrade due process in our U.S. Immigration Courts.

Frankly, I have not seen any mention of the importance of due process or facilitating access to counsel in any of the many Trump Administration pronouncements on immigration. It’s all about enforcement, detention, removals, and prosecutions. Fairness and due process, which should always be paramount concerns, appear to be ignored.

In the end, it likely will be up to the already overworked and stressed pro bono bar, human rights groups, and community-based NGOs to enforce immigrants’ rights to counsel and to full due process. And, ultimately, that’s probably going to require litigation and intervention by the Article III Courts.

Thanks to Adina Appelbaum, who worked on this report, for bringing it to my attention.

PWS

04/13/17

 

Related posts:

  1. DETENTION/BOND: THE “NEW DUE PROCESS ARMY” WINS A BIG ONE IN THE EDVA – Judge Brinkema Orders Individualized Bond Hearings For Four Individuals With “Reinstated” Removal Orders Now In “Withholding Only Proceedings!” — Romero v. Evans, ___ F. Supp. 3d ___, 2017 WL 5560659 (EDVA 11-17-17) (published)
  2. AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!
  3. ATTN “COURTSIDERS” – HEAR ME “LIVE” ON RADIO IN RICHMOND, VA, THE INTERNET, AND FACEBOOK TOMORROW, FRIDAY, DEC. 8, 2017!
  4. EXPOSED! — AILA’S JOHNSON SHOWS HOW “GONZO” INTENTIONALLY MISUSES DATA TO CREATE A FALSE ANTI-ASYLUM, ANTI-LAWYER NARRATIVE TO CONCEAL THE REAL GLARING PROBLEM DRIVING US IMMIGRATION COURT BACKLOGS — AIMLESS DOCKET RESHUFFLING (“ADR”) DRIVEN BY POLITICOS ATTEMPTING TO STACK THE COURT SYSTEM AGAINST DUE PROCESS AND TILT IT IN FAVOR OF DHS/ADMINISTRATION ENFORCEMENT INITIATIVES!!!!!!! — SURPRISE — By Far The Biggest Increase In Continuances Comes From DHS & EOIR Itself!

IMMIGRATIONPROF BLOG: Three Cheers For NY! — State Becomes First To Guarantee Representation For All Detained Immigrants!

http://lawprofessors.typepad.com/immigration/2017/04/new-york-state-becomes-first-in-the-nation-to-provide-lawyers-for-all-immigrants-detained-and-facing.html

Dean Kevin Johnson writes:

“The Vera Institute of Justice and partner organizations today announced that detained New Yorkers in all upstate immigration courts will now be eligible to receive legal counsel during deportation proceedings. The 2018 New York State budget included a grant of $4 million to significantly expand the New York Immigrant Family Unity Project (NYIFUP), a groundbreaking public defense program for immigrants facing deportation that was launched in New York City in 2013.

New York has become the first state to ensure that no immigrant will be detained and permanently separated from his or her family solely because of the inability to afford a lawyer. Without counsel, a study shows, only 3% of detained, unrepresented immigrants avoid deportation, but providing public defenders can improve an immigrant’s chance of winning and remaining in the United States by as much as 1000%.

NYIFUP has been operating in two of the four affected upstate immigration courts on a limited basis since 2014 with funding from the New York State Assembly and the IDC. In the just-ended fiscal year, the funding was sufficient to meet less than 20% of the need upstate. In New York City, NYIFUP has been representing all financially eligible, otherwise unrepresented detained immigrants since 2014 with funding from the City Council.

Research has shown that keeping immigrant families together saves money for the state’s taxpayers in increased tax revenues and less need for families left behind to draw on the social safety net. New York State employers also receive significant economic benefits from avoiding the loss of productivity when their employees are detained and deported, and the consequent need to identify and train replacement workers.

The first public defender program in the country for immigrants facing deportation, the NYIFUP Coalition includes Vera, the Immigration Justice Clinic of Cardozo Law School, the Northern Manhattan Coalition for Immigrant Rights, Make the Road New York, and The Center for Popular Democracy. The Erie County Bar Association Volunteer Lawyers Project is a NYIFUP Coalition partner upstate. Brooklyn Defender Services, the Legal Aid Society, and The Bronx Defenders are Coalition partners in New York City.

Several cities and states, including Los Angeles, San Francisco, Chicago, Washington, D.C., and California have recently begun efforts to design similar programs.”

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

Good for New York! I hope that other states follow suit.

Representation is the most important contribution that those “outside the system” can make to improving due process in the U.S. Immigration Courts. And, nowhere is it needed more than in often out of the way detention centers. As noted in the article, there is no doubt that representation makes a difference in outcome — a huge difference.

In fact, the statistical difference is so great that one might think that those officials responsible for the U.S. Immigration Court system would long ago have determined that no case could proceed in accordance with due process unless and until the respondent had a lawyer. But, that would be some other place, some other time.

In the meantime, let’s all be thankful for the outstanding example that New York has set!

PWS

04/10/17

 

Related posts:

  1. REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!
  2. JOE PATRICE @ ABOVE THE LAW: WE NOW HAVE “SCIENTIFIC PROOF” THAT IMMIGRATION LAWYERS ARE “INCREDIBLY USEFUL” — IN FACT, THEY ARE ESSENTIAL TO DUE PROCESS — So, Why Are Sessions & His Minions Smearing Lawyers & Trying To Railroad More Migrants Through The System Without Fair Hearings?
  3. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019
  4. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!

“Come Together” — A Great New 1-Min. Video From The GW Immigration Clinic All-Stars! — “Why We Are Motivated To Work for Immigrants!”

GW Immigration Clinic 2017 – Medium

 

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

Looks like lots of new recruits for the “New Due Process Army.” These guys are the real “heart and soul” of today’s American law. Thanks to Professor Alberto Gonzalez for sending this in.

PWS

04/03/17

 

Related posts:

  1. ARLINGTON IMMIGRATION COURT: ANOTHER WIN FOR THE GOOD GUYS! – GW CLINIC HELPS EL SALVADORAN WOMAN & CHILDREN GET ASYLUM!
  2. EXPOSING SESSIONS’S DEADLY DUE PROCESS SCAM: JUDGE SULLIVAN BLOCKS ANOTHER POTENTIAL DEPORTATION TO DEATH AS SESSIONS-LED DOJ ARGUES THAT THE KILLING LINE NOT SUBJECT TO REVIEW — Pro Bono Counsel Jones Day Saves The Day, At Least For Now — “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

SLATE: Into The Void — Appalled Attorney Dan Canon Says Immigration Detention Diminishes, Dehumanizes All Of Us!

http://www.slate.com/articles/news_and_politics/cover_story/2017/04/ice_detainees_enter_an_unbelievably_cruel_system_designed_to_make_them_disappear.html

“A couple of weeks ago, for the first time ever, I represented an undocumented worker in deportation proceedings. Or rather, I tried to. My attempts to navigate this system were not what I would call successful. Part of this may be due to the fact that, though I have been a practicing attorney for 10 years, this was my first go at immigration law. But another part of it—most of it, I’d venture—is due to the fact that the U.S. immigration system is designed to be opaque, confusing, and inequitable.

Under most circumstances, I would not wade into this kind of thing at all. I’m primarily a civil rights lawyer, and immigration is a highly specialized area of law with a unique set of risks awaiting unwary practitioners. I would not, for example, take someone’s bankruptcy case or file adoption papers. I would refer those to lawyers with experience in those areas. But the crisis of unrepresented detainees is too big and too pressing to leave to the few organizations and individual practitioners with expertise in immigration law. One recent study found that only about 14 percent of detainees have representation. That’s out of nearly 300,000 cases in the immigration courts every year.*

If I killed someone on the street in broad daylight, I‘d be entitled to an attorney. But those summoned before the immigration courts, including infants who have been brought here by their parents, have no right to counsel. They can hire immigration lawyers, but only if they can pay for them. Most of them can’t, and volunteer lawyers are scarce. So children, parents, and grandparents are locked up for months, sometimes years, waiting for a day in court. When they show up in front of a judge, they do so alone and terrified. Those who don’t speak English are provided an interpreter who tells them what’s being said, but no one is there to tell them what’s really happening.

Undocumented people who live here in Louisville and southern Indiana are driven 90 minutes to the jail in Boone County, Kentucky. There, they are placed in the general population with locals who have actually been accused of crimes. That’s where my client, who was assigned to me by an overburdened immigration firm, was taken after he was scooped up by Immigration and Customs Enforcement in the parking lot of his apartment building.

Entering the United States, even without proper documentation, is not a criminal offense. The only “crime” my client committed is trying to get his family away from the drug cartels that overtook his Central American village. Unlike many who come here fleeing crippling poverty, he and his family were getting along fairly well in their home country. A little success, it turns out, can make you a target for violent extortionists. His wife, who fled the exact same situation in the exact same place, was apparently catalogued as an asylum-seeker, but her husband was not.

The Kentucky facility doesn’t allow a phone call, even for an attorney, without an appointment. Requests to call your client must be made by fax. Sometimes the jail will call you to say your 2 p.m. time slot has been changed to 6 p.m., and sometimes you won’t get any notification at all. The visitation restrictions for families are no more accommodating. Visitation amounts to 45 minutes a week, tops. If my client’s wife, daughter, or grandkids want to visit him, they have to drive 90 minutes and hope for the best.

. . . .

What happened to my client and his family wasn’t anomalous. It wasn’t even unusual. It happens all over the country, every single day. Part of what makes our immigration system so reprehensible is that it’s so easy to ignore. Most of us don’t ever have to deal with it in any meaningful way or even think about it. But stop and consider that this practice of moving detainees from place to place randomly, with no notice given to their families or their attorneys, is indescribably cruel. Stop and consider that locking up human beings in jail for months to coerce them into submission is maddeningly unjust. And then consider the possibility that the whole system is not just dysfunctional, but utterly diabolical.

Further consider that the practice of breaking up families and making people disappear into black holes is the result of a set of loosely defined policy goals that are in no way based on reality. There’s no real evidence to support the notion that undocumented immigrants are any more dangerous than anyone else, or that they “steal” jobs from Americans, or that they do anything but contribute to the economy overall. There is no policy reason for inflicting this misery on people. It’s just cruel.

Lest anyone think this is just more liberal railing against the Trump administration, this system pre-dates the orange guy. The Obama administration sucked more than three million people into the lungs of this administrative monster and spit them out all over the world. Having seen up close what this system does to families, it’s hard to forgive that, especially when you consider that American trade policies contributed to the collapse of Latin America. But hell, we’re all complicit in this. We let it happen every day.

I’m going to suggest something I have never suggested to any working person: If you are part of this machine—if you are a guard, an agent, a janitor, or anything in between—quit. Walk off your job. Right now. You’ve got bills to pay? A family to support? I get it. So do the people who come here looking for a better existence. The system you are contributing to is preposterously evil. It separates mothers from their children. It kills innocent people. It exists only to make easy punching bags out of those damned by their circumstances, some of whom have already lived through unspeakable horrors.

For everyone else: If you’ve never thought about your tacit support for this system, start thinking about it. Start resisting it. Start demanding its abolition. A Kafkaesque bureaucracy needs participants, both willing and unwilling. We have the power to dismantle it.”

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

As noted in Canon’s article, immigration detention originated long before the Trump Administration. The Obama Administration certainly wasn’t afraid to use detention as an attempted deterrent to asylum seekers. Additionally, the Obama administration essentially argued for “eternal detention” pending final determinations in Removal Proceedings in a case that is currently pending decision before the Supremes. Jennings v. Rodriguez, see previous blog here: http://wp.me/p8eeJm-kp. The often prolonged detention of women and children asylum seekers from the Northern Triangle by the Obama Administration will go down as one of the darker chapters in American human rights history.

Unfortunately, however, we haven’t hit bottom yet. The Trump Administration’s plans for enhanced immigration enforcement will certainly involve even more widespread use of immigration detention as a tool of deterrence, coercion, and denial of due process, with all of the additional human abuses that is likely to engender.

One qualification/explanation of Canon’s statement that: “Entering the United States, even without proper documentation, is not a criminal offense.” In fact, it usually is.  Under 8 U.S.C. 1325, “improper entry by an alien” is a misdemeanor, although often not prosecuted. A second conviction is a felony.

An individual without documentation who appears at a U.S. port of entry ands applies for asylum would not be committing a criminal offense. But, according to a number of recent media accounts, such individuals currently are being sent back to Mexico and told to await “an appointment.”

Additionally, the Trump Administration has indicated that it would like to develop a process to return non-Mexican asylum seekers to Mexico while they are awaiting hearings in U.S. Immigration Court. So far, the Mexican government has indicated that it would not agree to such a program.

PWS

04/03/17

 

 

Related posts:

  1. JOE PATRICE @ ABOVE THE LAW: WE NOW HAVE “SCIENTIFIC PROOF” THAT IMMIGRATION LAWYERS ARE “INCREDIBLY USEFUL” — IN FACT, THEY ARE ESSENTIAL TO DUE PROCESS — So, Why Are Sessions & His Minions Smearing Lawyers & Trying To Railroad More Migrants Through The System Without Fair Hearings?
  2. DUE PROCESS DENIED! — NIJC REPORT FINDS THAT DHS DETENTION IN OBSCURE LOCATIONS DEPRIVES MIGRANTS OF MEANINGFUL ACCESS TO COUNSEL! — This Is What Happens When We Enable The “American Gulag!”
  3. DERELICTION OF DUTY: 4th Cir. Exposes BIA’s Incompetence & Anti-Asylum Bias, Yet Fails To Confront Own Complicity — SINDY MARILU ALVAREZ LAGOS; K.D.A.A., v. WILLIAM P. BARR
  4. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!

LA TIMES: Retired U.S. Immigration Judge Bruce J. Einhorn Speaks Out For Due Process — Challenges City Of L.A. To Provide Lawyers For Those Facing Removal!

http://www.latimes.com/opinion/op-ed/la-oe-einhorn-immigration-lawyers-deportation-ice-20170327-story.html

Like many of us, Bruce has witnessed first-hand the patent unfairness of requiring individuals to represent themselves in U.S. Immigration Court. In this L.A. Times op-ed he urges Los Angeles to follow the City of New York’s fine example in providing effective pro bono legal representation to those whose lives and futures are on the line in Immigration Court:

“In December, Mayor Eric Garcetti announced the creation of a $10 million fund to provide lawyers to immigrants facing deportation. But the parameters of the program are still being determined. In order to be effective, the program needs to be implemented soon and expanded quickly.
For defendants in deportation proceedings, the stakes can be life or death, since some face torture or worse upon returning to their home countries. This is why a fellow immigration judge, Dana Marks, once said that deportation cases are “death penalty cases heard in traffic court settings.” Many other defendants face permanent separation from their families.

Yet immigrants who cannot afford a lawyer must argue against government prosecutors. More often than not, this includes immigrants who are detained — that is, jailed — while their cases move through the courts. Detention almost always means loss of income, while lawyers cost more than the majority of immigrants can afford. A person who speaks little or no English must gather information from police officers or medical experts, submit written declarations in English or find evidence to support their asylum claims, all without access to the Internet or to affordable phone calls. There are an estimated 3,700 immigrants in detention across the greater L.A. area, according to the mayor’s office.

With one side at such a great disadvantage, it becomes much harder for judges to apply the law in a just manner, increasing the risk of flawed decisions. Especially in cases where defendants are detained, a day in court without a lawyer isn’t a day in court at all. A recent study found that detained immigrants who are represented by an attorney are five times more likely to win their cases than immigrants without representation.

A court system without lawyers is not merely unjust — it is also inefficient and wasteful. Without adequate legal representation for immigrants, judges can’t spend their time making decisions. Instead, they must constantly explain the legal process, reschedule cases and answer questions. In some instances, judges issue decisions only to cover the same ground again if the defendant is lucky enough to find a lawyer and get the case re-heard.

All this waste results in a heavily backlogged immigration court system, and nowhere more so than in California, where almost 100,000 cases are waiting to be decided. In San Francisco, for instance, an immigrant in court today will have his next hearing over two years from now.

. . . .

After 17 years on the bench, I’m troubled to see a wave of new raids that are sure to clog the dockets for years to come. But I also see an opportunity for local leaders to take a stand and provide immigrant communities with the fair and responsive representation they deserve.”

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

Bruce makes an important point that many outside observers miss. In addition to being inherently unfair, hearings involving unrepresented individuals are tremendously inefficient. That is, if the Immigration Judge takes to time to provide at least some semblance of due process.

Aspects of the hearing system that lawyers understand have to be explained in detail, in simplified language, through an interpreter to the unrepresented respondent.

Because there is no lawyer to question the respondent, and it would be inappropriate to rely on the DHS lawyer to present the respondent’s case, the Immigration Judge effectively becomes the respondent’s “substitute attorney” — an impossible conflict of interest. I usually conducted the examination of an unrepresented respondent using a format similar to that I used for client intake interviews in private practice. It takes time to do a fair and thorough job.

Dictating a decision in an unrepresented detained case is a long, painstaking process. Where an attorney is involved, and the interpreter is with me in court, which is the norm, the attorney normally “waives” a verbatim contemporaneous interpretation in favor of a short summary and a promise to fully explain my ruling to the client afterwards.

But, with no attorney, I must stop every few sentences for the interpreter to do a “serial interpretation” to the respondent on televideo. The “simultaneous interpretation” system is not currently designed to work with the televideo system.

Appeals by the losing side are fairly common in detained unrepresented cases. When both sides have attorneys, I just say a few words reminding them about how strictly the BIA enforces filing deadlines.

But, when an unrepresented respondent is involved, I have to give a short “how to seminar” in the art of filing an appeal with a fee waiver in a timely manner. Occasionally, the detention center doesn’t even have the correct appeal and waiver forms available, so I have to note that “officer promised to serve forms” while attaching an “insurance copy” to my “minute order” (which itself might not actually get to the detained respondent until weeks after the hearing — halfway through the 30 day appeal period).

Also, Bruce accurately points out that if the respondent finally is able to find a pro bono lawyer during the appeal process, the chances of a remand for further development of the record before the Immigration Judge are significant.

Although claiming to be supportive of the role of pro bono counsel in Immigration Court, and providing some support to some programs, overall the U.S. Immigration Court is “user unfriendly” to the pro bono community. In all Administrations, artificial political prioritization of cases driven by the Department of Justice and decisions to “kowtow” to DHS enforcement by placing so-called “courts”‘ within out of the way detention centers (rather than insisting, as true independent court system would, that detention centers be located in the vicinity of already established courts, where there is an established immigration bar and family support is often available) actively undermine both access to, and effective participation by, pro bono attorneys.

It’s sad but clear that the current Administration has “no time” for due process for migrants. They appear to have every intention of taking an already out of control, user unfriendly court system and making it even worse.

Only the Article IIII Courts stand between this Administration and their apparent goal of a  “deportation express” with “no station stops” for due process. And, the only way that vulnerable migrants are going to be able to get into, and draw the attention of, the Article III Courts is by being well-represented by attorneys every step of the way.

That’s why it is critically important for Los Angeles and other cities who value their immigrant communities to heed Bruce’s call for the establishment of pro bono programs. Otherwise, the due process travesty being planned by this Administration will go forward unabated and become an indelible stain on American legal, political, and Constitutional history.

Other than that, I have no strong views on the subject.

PWS

03/31/17

Related posts:

  1. LA TIMES; “DETAINED AND DEFENSELESS” – How Our Government Specifically Designed An American Gulag (Complete With “Kangaroo Courts”) To Deny Migrants Their Statutory & Due Process Rights To Counsel, & Then Simply Lies About What They Are Doing!
  2. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  3. COURTING DISASTER: NEW AILA REPORT SHREDS DOJ’S “BUILT TO FAIL” IMMIGRATION COURT BACKLOG REDUCTION PROGRAM — “Malicious Incompetence” Turns Tragedy To Travesty! — McKinney, Lynch, Creighton, & Schmidt Do Press Conference Exposing Injustice, Waste, Abuse — Listen To Audio Here!
  4. THE ROUNDTABLE IN ACTION: HON. ILYCE SHUGALL DELIVERS POWERFUL STATEMENT IN THE LA TIMES ON WHY SHE COULD NO LONGER SERVE AS A JUDGE IN OUR OBSCENELY DISTORTED AND UNFAIR U.S. IMMIGRATON COURT SYSTEM – “But nothing prepared me for the unprecedented, unfair and unworkable policies the Trump administration imposed on the courts and the immigration process.”

Spend A Few Minutes With Me Behind The Bench! — Read My “Detained Master Calendar” Vignette From The “Journal on Migration and Human Security!”

Part IV: The Immigration Judge

There is widespread consensus that immigration courts are overwhelmed with immense caseloads, inadequate staffing, and lengthy backlogs (Arnold & Porter 2010). Non-detained immigrants in removal proceedings often wait two to three years to have their cases adjudicated. Cases on the detained docket move much faster. Despite the considerable time it takes to access counsel, determine eligibility for defenses to deportation, and gather evidence, the average life of a pro se detained immigrant’s case totals a mere 23 days (Eagly and Shafer 2015, 63).

In addition to facing institutional pressure to quickly move cases while immigrants are detained at government expense, judges are overburdened with the number of detained cases that must be efficiently adjudicated (Lustig et al. 2008). In 2015, immigration judges adjudicated and completed 51,005 detained cases, constituting 28 percent of all immigration cases completed that year (EOIR 2016, gure 11). Judges have very little face time with immigrants in their courtroom, and about half the time spent with pro se detainees involves requests for continuances to seek counsel (Eagly and Shafer 2015, 61). Furthermore, as administrative law judges, immigration judges have obligations to the respondents who appear pro se and are often required to step into the role of counsel in order to fully develop the record through interrogating, examining, and cross-examining an immigrant and any witnesses.”14

Below, a former immigration judge provides a snapshot of a few minutes on the detained docket.

*****

Prelude15

Wednesday afternoon, detained master calendar. Feeling love and dread. Love: Fast-paced, meaningful, live audience, prepared attorneys, challenging legal questions, teamwork, mediation, problem solving, saving lives, teaching, performing, drama, positive messages, mentoring, full range of life and legal skills in use and on display. Dread: Hopeless cases, sobbing families, watching goodbyes, “not-quite-ready-for-primetime” (“NQRFPT”) attorneys, bad law, missing files, missing detainees, lousy televideo picture of respondent, equipment failures, claustrophobic courtroom, clogged dockets, imprisoned by the system, due process on the run, stress.

Pregame Warm-up

“How many today, Madam Clerk?”

“Fourteen, five bonded, two continued.”

“Thanks, Madam Clerk. Let’s make it happen!”

Showtime.

Politeness, patience, kindness. Listen.

“Please rise, the United States Immigration Court at Arlington Virginia, is now in session, Honorable Paul Wickham Schmidt, presiding.”

Jam-packed with humanity. Live. Uncomfortably hot. Bandbox courtroom. Ratcheting tensions. America’s most important, most forgotten courts. Lots of moving pieces. Put folks at ease. Performance begins.

The Damned

“We’re on the record. This is Judge Paul Wickham Schmidt at the United States Immigration Court in Arlington, Virginia; we’re on a televideo hookup with the DHS Farmville Detention Center, the date is . . . , and this is a master calendar removal hearing in the case of Ricardo Caceres, File number A123 456 789. Counsel, please identify yourselves for the record.”

“Bonnie Baker for the respondent, Mr. Caceres.”

“April Able for the DHS.”
“What are we here for Ms. Baker?”

“Your Honor, we’re seeking a reasonable bond for my client, who has been in the United States for more than two decades. He’s a family man, the sole support of his wife and four US citizen children, who are sitting right behind me. He’s a skilled carpenter with a secure job. He pays his taxes. He’s a deacon at his church. His employer is here this afternoon and is willing to post bond for him. The respondent’s wife is out of work, and the family is on the verge of being evicted from their apartment. The oldest son and daughter are having trouble in school ever since their father was detained. The baby has developed asthma and cries all night.”

“I assume he’s in detention for a reason, Ms. Baker. What is it?”

“Well, Your Honor, he had a very unfortunate incident with one of his co-workers that resulted in his one and only brush with the law. I think he probably got some questionable legal advice, too.”

“What’s the conviction?”
“Aggravated assault with a deadly weapon.”
“Sentence?”
“18 months, with all but three months suspended, Your Honor.”

“Hmmm. Doesn’t sound very promising. What’s your take, Ms. Able?”

“He’s an aggravated felon, Your Honor, under the BIA and Fourth Circuit case law. Therefore, he’s a mandatory detainee. May I serve the records of conviction?”

“Yes, thank you Ms. Able. Isn’t Ms. Able right, Ms. Baker? He’s mandatory detained under the applicable law, isn’t he?”

“Well, Your Honor, technically that might be right. But we’re asking you to exercise your humanitarian discretion in this extraordinary situation.”

“As you know, Ms. Baker, I’m not a court of equity. The law gives me no discretion here. So, based on what you’ve presented, no bond. What’s next? Are you admitting and conceding removability and filing for relief?”

“The family wanted me to ask for bond, Your Honor.”

“You did, Ms. Baker. What’s the next step?”

“Well, the respondent has instructed me that if you didn’t grant a bond, he just wants a final order to go back to Mexico. He’s been in detention for some time now, and he just can’t wait any longer.”

“You’re sure that’s what Mr. Caceres wants to do?”

“Yes, Your Honor.”
“Mr. Caceres, this is Judge Schmidt, can you hear me?”

“Yes.”

“Because of the crime you committed, the law doesn’t permit me to set a bond for you. Your lawyer, Ms. Baker, tells me that you have decided to give up your rights to a full hearing and be removed to Mexico. Is that correct?”

“Yes, Your Honor. I can’t stand any more detention.”

“You understand that this is a final decision, and that once I enter the order you will be removed as soon as DHS can make arrangements.”

“Yes, judge, I understand.”

“And, you’ve discussed this with your family, sir?”

“I just want to go — no more detention. Can I go tomorrow?”

“Probably not. But the assistant chief counsel and DHS officer in court are noting that you want to go as soon as can be arranged.”

“Your Honor, may his wife and children come up and see him for a moment?”

“Yes, of course, Ms. Baker. Please come on up folks.”

“Your Honor, the respondent’s wife would like to make a statement to the court.”

“I don’t think that’s prudent, Ms. Baker. She’s already hysterical, and there is nothing I can do about the situation, as I’m sure you’ll explain to her. We have lots of other people waiting to see me this afternoon.”

“Understood. Thanks, Your Honor.’

“You’re welcome, Ms. Baker. You did the best you could. Take care folks. I’m sorry you’re in this situation. Mr. Caceres, good luck to you in Mexico. Please stay out of trouble. The clerk will issue the final order. Who’s next, Madam Clerk?”

The “Not-Quite-Ready-For-Prime-Time” (“NQRPT”) Lawyer

“Mr. Queless, we’re here for your filing of the respondent’s asylum application.”
“Um, Your Honor, I’m sorry I don’t have it with me. I didn’t have a chance to get to it.”

“Why’s that, Mr. Queless? Your client has been in detention for some time now, and I gave you a generous continuance to get this done.”

“That’s very true, Your Honor, but the power was out at our office for a day, and my son crashed his car and I had to take care of the insurance and the repairs.”

“All right, come back in three weeks with your filing, without fail.”

“Can I come back next week, Your Honor? My client has been in detention a long time.”

“I know that, counsel. That’s why I wanted you to file today, so we could set an individual date. I’m already overbooked for next week, and I can’t justify putting you in front of others who are prepared.”

“Ah, could we just set an individual date now, Your Honor, and I’ll promise to file within a week?”

“That sounds like a really bad idea, Mr. Queless, in light of actual performance to date. I want to see the completed filing before I assign the individual date. That’s how we do things around here. You’ve been around long enough to know that.”

“Excuse me, Your Honor, but may I be heard?”

“Yes, you may, Ms. Able.”

“With due respect, Your Honor, at the last master calendar you said this would be the final continuance. This detained case has been pending for months, and you have given counsel a more than reasonable opportunity to file for relief. At this point, the DHS must request that you deny any further continuance and move that you enter an order of removal.”

“Well, I sympathize with your position, Ms. Able. I did say this would be the last continuance, and I’m as frustrated as you are. But I note that the respondent is from a country where we routinely grant asylum, often by agreement or with no objection from your office. Therefore, I feel that we must get to the merits of his claim. Let’s do this. Mr. Queless, I’m going to give you an ‘incentive’ to get this filed. If the I-589 is not complete and ready to file at the next hearing — no more excuses, no more ‘dog ate my homework’ — I’m going to agree with Ms. Able, grant her motion, and enter an order of removal against your client. Do you understand?”

“Yes, Your Honor. I’ll have it here at the master in three weeks.”

“Anything further from either counsel?”

“Nothing from the DHS, Your Honor.”

“Nothing from the respondent, Your Honor.”

“Hearing is continued.”

The Skeptic

“How are you this afternoon, Mr. Garcia?”

“Okay.”

“Spanish your best language?”

“Yes.”

“Is this your first appearance before me?”

“Yes.”

“You’re going to look for a lawyer before we proceed with your case?”

“Do I need a lawyer, judge?”

“Depends on what you want, Mr. Garcia. I can send you back to Guatemala at government expense or give you voluntary departure if you wish to pay your own way and avoid having a formal removal order on your record. Is that what you want?”

“Oh, no, judge. I don’t want to go back.”

“Then, you need a lawyer, sir. Officer, please give Mr. Garcia the legal services list. Mr. Garcia, this is a list of organizations in Virginia that might be willing to represent you at little or no charge if you can’t afford a lawyer. You should also check with family and friends to see if they can help you nd a free or low-cost lawyer to take your immigration case. I’ll set your case over for three weeks to give you a chance to look.”

“Can I come back next week?”

“You won’t be able to find a lawyer by then, sir. Take the three weeks. If you don’t have a lawyer by then, we’ll go forward without one.”

“Okay, Your Honor.”

“Good luck in finding a lawyer, Mr. Garcia. The clerk will issue the notices. Who’s next, Madam Clerk?”

Postlude

Out of court. Satisfied. Tired. Drained — like a Steph Curry three-pointer. Find my colleagues. Fresh air. Walk in the park. Talk sports, politics, weather. Visit Starbucks. Final refill. Recharge batteries. Master tomorrow morning. Fifty non-detained. Too many. The beat goes on. Walking free. Not an “alien.” Glad. Lucky. Thankful.

14 Immigration and Nationality Act (INA) § 240(b)(1).
15 This account is written by Hon. Paul Wickham Schmidt, who served as the chairman of the Board of Immigration Appeals before being appointed to the Arlington Immigration Court in May 2003, where he served as an immigration judge for 13 years before recently retiring from that position. While the names he has provided in this account are entirely fictional, the situations he describes are based on his own wealth of experience adjudicating cases in immigration court.

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

The full citation is:

Ahmed, Saba; Jordan, Rachel; Appelbaum, Adina, The Human Cost of IIRIRA — Stories From Individuals Impacted by the Immigration Detention System, 5 JMHS 194, 206-11 (2017). Co-author Adina Appelbaum is a former Arlington Immigration Court legal intern and one of my “all-star” students from “Refugee Law & Policy” at Georgetown Law. Read the entire collection of interesting and moving  human stories here:

80-263-2-PB

PWS

03/22/17

Related posts:

  1. AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!
  2. Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!
  3. REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!
  4. ATTN “COURTSIDERS” – HEAR ME “LIVE” ON RADIO IN RICHMOND, VA, THE INTERNET, AND FACEBOOK TOMORROW, FRIDAY, DEC. 8, 2017!

Sunny Thoughts On A Dreary Day In DC — Read More From WNYC/NPR Reporter Beth Fertig — The “New Due Process Army” Takes the Field — Bronx Defenders and Courtney M. Lee (Former Arlington Immigration Court Intern And Star Georgetown CALS Asylum Clinic & RLP Student) Work To Save Lives & Insure Due Process In Our Immigration Courts Every Day!

https://www.wnyc.org/story/free-lawyers-provided-city-help-more-immigrants-detention-win-cases/

Beth Fertig writes:

“Arturo had his most recent hearing in December, in front of Judge Patricia Buchanan. He wore an orange jumpsuit with the initials of the Hudson County Department of Correction on the back, and his hands were shackled. The 31-year-old is five-foot-three and slim, and appeared very nervous. He sat with his team from Bronx Defenders, [Supervisory Attorney Sarah Deri] Oshiro and Law Graduate Courtney Lee, and a court-appointed translator. There was also an attorney from Immigration and Customs Enforcement, James McCarthy.

Arturo’s case is very complicated and his team has a few different claims. They are asking the court to withhold his deportation on the grounds that he’ll be persecuted or tortured if he goes back to Mexico.

“His stepfather subjected him to — during his entire childhood and adolescence — to really severe constant and consistent sexual, physical and psychological abuse,” Lee explained.

In court, she asked Arturo to recall some of the beatings and how his mother and siblings are still living in terror. He said the abuse continued even after he arrived in New York and sent his mother money to leave the man. He described in Spanish how he feared his stepfather would kill him if he moved back to Mexico, because he was the one who helped his mother escape. And he said he had no other place to live except for the town in which they reside. But Judge Buchanan appeared skeptical. She asked if he had any family in New York when he first arrived in 2004, and he said no.

Arturo’s legal team is also seeking to halt his deportation by arguing his two young children would be harmed. Immigrants who have lived in the U.S. illegally for at least 10 years can apply for a cancellation of removal if an American citizen would suffer “exceptional and unusual hardship.”

It’s a tough bar to meet, and it doesn’t help Arturo’s case that he has a few convictions for misdemeanors, including breaking a store window when he was drunk and possession of marijuana. But his advocates argued that these are minor and were related to the traumas he suffered as a child. He told the court he stopped using marijuana and alcohol after his children were born, to set a “good example.” His advocates said he also has an employer who believes in him, and wants to hire him back.

Because Arturo is the primary breadwinner, they argued deporting him would put the children at risk of homelessness. His partner, the children’s mother, is already fighting eviction proceedings. And Arturo said the stress from his detention has caused his seven year-old son to wet the bed and barely eat. But McCarthy, of I.C.E., argued that the children seem healthy and are not experiencing “exceptional and unusual hardship.”

The judge had to stop the proceedings at noon because she had too many other cases that day. She scheduled Arturo’s next hearing in February, almost a year after he was sent to detention.”

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

Go to Beth’s full article at the link for a fantastic picture of Courtney and her Supervisory Attorney Sarah Deri Oshiro.  Way to go, Courtney and Sarah!

These days, in retirement, in addition to writing, I attend many events, give lots of speeches, and guest lecture at law schools and colleges, all largely directed at pointing out why refugees and other migrants make America great, the sad state of our United States Immigration Court System, the overwhelming importance of working to force our Immigration Courts to live up to their unfulfilled promise to “guarantee fairness and due process for all,” and the compelling need for reforms to make the Immigration Courts independent from the Executive Branch.

Almost everywhere I go, I run into great attorneys who once were Judicial Law Clerks or interns for the U.S. Immigration Court in Arlington, appeared in Immigration Court under clinical practice programs sponsored by local law schools (like Georgetown’s famous CALS Asylum Clinic), or are former students who took my Refugee Law and Policy (“RLP”) course at Georgetown Law in 2012-14.  There are all, without exception, doing absolutely wonderful things to advance the cause of fairness and due process for migrants.

They are all over:  projects like Bronx Defenders, NGOs, pro bono organizations, big law, small law, public interest law, courts, government agencies, Capitol Hill, academia, journalism, management, and administrative positions.  I call them the “New Due Process Army” and they are going to keep fighting the “good fight” to force the Immigration Courts and the rest of our justice system to live up to the promise of “fairness and due process for all” whether that takes two years, ten years, twenty years, or one hundred years.  If we all keep at it and support one another it will eventually happen!

Last night, I was at a very moving retirement ceremony for Shelly Pitterman, the United Nations High Commissioner for Refugees Regional Representative for the United States and the Caribbean.  Fortunately, Shelly is going to remain in the human rights field, joining Mark Hetfield and the other wonderful folks over at the Hebrew Immigrant Aid Society (“HIAS”).  I wish I had gotten to know Shelly better.  He was repeatedly described as a dynamic leader who inspired everyone around him to perform at a higher level (just like Aaron Rodgers of the Pack), apparently even on the softball field!

In attendance were two of our “total superstar” former Arlington Immigration Court legal interns, Katie Tobin and Lindsay Jenkins, both Assistant Protection Officers (one of the most coveted jobs) with the UNHCR.  Accomplished attorneys,  dynamic leaders, and terrific role models in they own rights, Katie and Lindsay are using their education and experience to live out their deeply held values every day and to help make the world a fairer, more humane, and better place for all of us.  Both of them represent the true values of the real America:  fairness, scholarship, respect, teamwork, and industriousness (not to mention a sense of humor).

To Courtney, Katie, Lindsay, and all the other “soldiers” of the “New Due Process Army” thanks for what you are doing for all of us every day!  It is an honor to know you and to have played a role, however modest, in your quest to make the world an even greater place.

PWS

01/20/17

 

Related posts:

  1. BETH FERTIG @ WNYC/NPR: Judges Under Artificially Enhanced Stress: A Portrait Of The Newer Judges At The New York Immigration Court
  2. BETH FERTIG AT NPR: “ADR” Moves Into High Gear, Devastating U.S. Immigration Courts, As Half Of NY Immigration Court “Goes Dark” — U.S. Immigration Judges Become Adjuncts Of DHS Border Enforcement Program — Dockets At Interior Courts “Orbited Into Never-Never Land!”
  3. REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!
  4. COURTS OF INJUSTICE: How Systemic Bias, Bad Precedents, Gross Mismanagement, & Poor Decision-Making Threaten Lives In Immigration Court — What Should Be “Slam Dunk” Grants Of Protection Are Literally “Litigated To Death” Adding To Backlogs While Mocking Justice! — Featuring Quotes From “Roundtable” Leader Hon. Jeffrey Chase!