MICHAEL GERSON @ WASHPOST: ICE IS GETTING DOWN IN THE GUTTER WITH TRUMP – Why Would We Tolerate Either A President Or A USG Agency Who Glories In & Gloats About “Mean & Nasty” Treatment Of Other Human Beings? — By Accepting Trump’s & ICE’s Inappropriate Conduct, We Diminish Ourselves As A Nation & As Human Beings!

https://www.washingtonpost.com/opinions/ice-has-become-trumps-personal-bullying-squad/2018/04/23/5197541e-472d-11e8-8b5a-3b1697adcc2a_story.html?utm_term=.692cc352c144

Gerson writes:

The attitude of President Trump toward federal law enforcement is, to put it mildly, mixed. The FBI refused to bend to his will. So the special counsel team is composed of “hardened Democrats” engaged in a “WITCH HUNT.” The FBI was, according to Trump, too preoccupied with the Russia investigation to prevent the Parkland, Fla., school shooting. The agency’s reputation “is in Tatters — worst in History!”

But Immigration and Customs Enforcement has passed the loyalty test. ICE’s enforcement surge “is merely the keeping of my campaign promise,” the president tweeted. Referring to ICE acting director Thomas Homan, Trump said, “Somebody said the other day, they saw him on television. . . . ‘He looks very nasty, he looks very mean.’ I said, ‘That’s what I’m looking for!’ ”

This is territory more familiar in political systems of personal rule. The agency that defies the ruler must be discredited. The agency that does his bidding is viewed as a kind of Praetorian Guard.

Most of the professionals working in ICE would surely deny this characterization, pointing to an important legal role independent from any individual president. But they need to understand that their work is now being conflated with Trump’s nativism.

ICE’s 40 percent increase in arrests within the United States after Trump took office is now closely associated with the president’s political priorities. His sweeping executive orders on immigration broadened the focus of enforcement beyond serious threats to public order. Arrests of immigrants without criminal convictions have spiked. Routine “check-ins” with ICE officials can end with handcuffs and deportation. “Sanctuary cities” — a recurring presidential political obsession — are being targeted with additional personnel. Hundreds of children have been removed from parents seeking asylum and detained separately — compounding their terrible ordeal of persecution and flight. ICE recently announced a new policy that makes it easier to detain pregnant women. Asylum seekers have often been denied “humanitarian parole” while their cases are decided, effectively jailing them without due process.

Officials of the agency insist that their nonpolitical mandate hasn’t changed. But Homan has praised the Trump administration for taking “the handcuffs off law enforcement.” Whatever their intention, ICE agents are being used by the president to send a message of callousness. And they are tying themselves to Trump’s political fortunes in the process.

The job performed by ICE is essential to American security, and not easy. Agents must prevent some truly dangerous people from entering and staying in the country — gang members, drug dealers and terrorists. But it is also their job to deal with asylum seekers — men, women and children fleeing from gangs, targeted for death by drug cartels and oppressed by terrorist states. Some of the worst people in the world, and some of the most sympathetic people in the world, are processed by immigration officials. It takes care and discernment to make this distinction.

ICE is not an agency famous for its care and discernment. In releasing an immigration activist detained by ICE early this year, U.S. District Judge Katherine B. Forrest said, “It ought not to be — and it has never before been — that those who have lived without incident in this country for years are subjected to treatment we associate with regimes we revile as unjust. . . . We are not that country.”

Accusations of abuse in ICE custody are numerous and serious, and they preexisted the Trump era. An investigation by ProPublica and the Philadelphia Inquirer reported cases of racial profiling, fabricated evidence and warrantless searches — all given little scrutiny by overwhelmed immigration courts. During the past few years, there have been hundreds of accusations of sexual abuse, racial slurs, abusive strip searches and verbal harassment in ICE jails, prisons and detention centers. For an institution that claims “zero tolerance” for such practices, it seems to get a lot of serious complaints. One asylum seeker, Gretta Soto Moreno, has called the facilities worse than normal prisons because ICE “feels like it can treat immigrants any kind of way.”

This is the bitter fruit of dehumanization — in a facility, in a system, in a country. It is unclear whether Trump would even regard such a reputation as undesirable. He has effectively given permission for bullying.

This is an issue ripe for more rigorous congressional oversight — even an independent commission to investigate charges of physical and sexual abuse in the ICE system. But this would require a critical mass of elected Republicans to give a damn about the rights and dignity of migrants. It is a distant dream.

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Dehumanization of migrants, who are among the most human of all among us, is certainly one of the most insidious aspects of the Trump/Sessions/Nielsen,/Homan regime. When we allow individuals like these who have both forgotten their proper roles in a democratic republic and arrogantly checked their humanity at the door, we essentially dehumanize ourselves.

Not surprisingly, migrants grow in moral stature as we shrink, individually and collectively. And the restrictionist (occasionally, as in the case of folks like Rep Steve King (R-IA) “neo-Nazi”) wing of the GOP is certainly a prime enabler of this reprehensible conduct. As even some GOP commentators have noted, there is a disturbing “empathy and humanity gap” evident when GOP politicos speak in dismissive and derogatory terms about migrants.

Only time will tell how soon we will be able to remove these unworthy public officials from the positions they now hold and replace them with responsible public servants who treat others with dignity, respect, humanity, and reasonableness. But, the speed and decisiveness with which we act will say much about America’s future prospects as a nation.

PWS

04-25-18

PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”

https://projects.propublica.org/asylum/#how-asylum-works

Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.

The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck — in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.

The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.

The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.

But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.

When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.

Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.

But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”

Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.

“We have a system that’s not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”

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Read the narrative and play the interactive “Waiting Game” at the above link!

Getting refuge often depends on getting the right:

Border Patrol Agent an Asylum Officer to even get into the system;
Lawyer;
Local Immigration Court;
Immigration Judge;
DHS Assistant Chief Counsel;
BIA Panel;
U.S. Court of Appeals jurisdiction;
U.S. Court of Appeals Panel;
Luck.

If something goes wrong anywhere along this line, your case could “go South,” even if it’s very meritorious.

I also agree with Professor Hing that given the UNHCR guidance that asylum applicants ought to be given “the benefit of the doubt,” the generous standard for asylum established by the Supremes in INS v. Cardoza-Fonseca and implemented by the BIA in Matter of Mogharrabi, and the often irreversible nature of wrongful removals to persecution, the system should be designed to “error on the side of the applicant.”

Indeed, one of the things that DHS in my experience does well is detecting and prosecuting systemic asylum fraud. While a few individuals probably do get away with tricking the system, most “professional fraudsters” and their clients eventually are caught and brought to justice, most often in criminal court. Most of these are discovered not by “tough laws” or what happens in Immigration Court, but by more normal criminal investigative techniques: undercover agents, tips from informants, and “disgruntled employees or clients” who “blow the whistle” in return for more lenient treatment for themselves.

Hope YOU get protected, not rejected!

PWS

04-23-18

MORE GOOD NEWS FROM PROFESSOR ALBERTO BENITEZ @ GW LAW: Two More Northern Triangle Lives Saved By Asylum Grants in Arlington – Giving Lie To the Trump Administration/Restrictionist Claim That Northern Triangle Refugees Are “Economic Migrants” — No, The Vast Majority Are “Legitimate Refugees” Being Screwed Over By Our Government’s Skewed, Dishonest, Immoral, & Often Illegal Policies

Friends,

Please join me in congratulating GW Immigration Clinic alum Shira Zeman, ’12, who won an asylum grant for a Central American Mom and her 5 year-old son earlier this week. Please see the attached picture, which I use with permission. Gang members threatened to kill Mom if she did not allow them to use her son in gang activities. These same gang members murdered one of Mom’s neighbors, a police officer, after he refused to allow a family member to join the gang. Mom testified for over an hour, after which the ICE trial attorney told the Immigration Judge she did not oppose asylum. Shira said: “He’s 5 now, but he had just turned 3 when they tried to ‘recruit’ him so he could be used as a drug mule.”

Intense. This installation is a must-see. Being in the ‘hielera,’ and in the ‘desert’ witnessing nighttime arrests by the Border Patrol, was beyond belief. Visitors were in tears and one fell to her knees. I read this Washington Post article prior to my visit but I was unprepared for the experience.

https://www.washingtonpost.com/goingoutguide/alejandro-g-inarritus-virtual-reality-voyage-is-dcs-most-intriguing-experience-right-now/2018/04/11/d2714380-3c04-11e8-974f-aacd97698cef_story.html?utm_term=.8f8162e02386

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Congratulations to Shira Zeman, Esq., of Zeman & Petterson PLLC, Falls Church, VA. I’m awed by the legal accomplishments and lives saved by Shira and her law partner Rachel Petterson! Hard to believe that she’s only six years out of law school!

We hear it all the time from Trump, Sessions, Nielsen, CIS, FAIR, GOP White Nationalist right wingers, right-wing media, and perhaps most disturbingly sometimes officials at EOIR and Immigration Judges. These aren’t “real refugees,” just folks coming here to work.

Nothing could be further from the truth. Make no mistake about it, these are “real refugees” intentionally being given the shaft by our biased and unfair Government and in far too many cases being denied the life-saving protection to which they are entitled under both U.S. and international law!

In my experience, few individuals, particularly women and children, undertake the long, dangerous, and uncertain journey from the Northern Triangle to our Southern Border unless they are forced migrants. Indeed, I found that many of the individuals coming from the Northern Triangle were doing fine economically and would have vastly preferred to stay in their homes, rather than being relegated to sometimes menial “entry-level” jobs even when they are able to be released in the U.S. Successful students sometimes lose credit in U.S. school systems and must “start over again” in lower grades or special programs.

Indeed, perhaps ironically, their success helped make them very visible, distinct, and attractive targets for both persecution by the gangs and sometimes also for extortion and mistreatment by corrupt police and government officials in the Northern Triangle. Others were perceived by the gangs to be actual or potential political leaders in the “anti-gang movement.” Moreover, as gangs increasingly become involved in the political process in the Northern Triangle, opposition to gangs takes on heavy political implications.

No, this case is not an “aberration or an exception.” There are lots of similar or identical “moms and kids” out there from the Northern Triangle fighting every day for their very lives in a system already rigged against them and which Jeff Sessions has pledged to make even more unfair and more “user unfriendly.”

The things that allowed this “mom and child’ to succeed are:

Representation by a great lawyer like Shira;
Freedom from detention;
Adequate time to prepare and document the case;
A fair, knowledgeable Immigration Judge not biased against or dismissive of Northern Triangle asylum seekers;
An experienced DHS Assistant Chief Counsel committed to a fair application of asylum law and unafraid to recognize when further litigation or appeal would be counterproductive for both the individual and the court system.

An Attorney General truly interested in upholding the rule of law and our Constitution would be working to replicate what happened in this case elsewhere and to look for ways in which refugees like this could be recognized without having to go to a final merits hearing before an Immigration Judge. He or she would also be encouraging others in the Administration to focus on addressing the problems in the Northern Triangle causing this humanitarian migration, instead of focusing solely on fruitless attempts to discourage and deter the vulnerable migrants themselves.

But, that would an Attorney General “OTJS” — “Other Than Jeff Sessions.”

PWS

04-23-18

GONZO’S WORLD: AG’S ASSAULT ON CONSTITUTION & SEPARATION OF POWERS TOO MUCH FOR SOME GOP-APPOINTED ARTICLE IIIs!

James Hohmann writes in the Washington Post:

THE BIG IDEA:

A panel of three judges, each appointed by a Republican president to the federal appeals court in Chicago, ruled unanimously on Thursday against President Trump’s effort to withhold money from “sanctuary cities.”

The U.S. Court of Appeals for the 7th Circuit upheld a nationwide injunction that blocks the Justice Department from using “the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.”

Trump’s latest courtroom defeat offers yet another civics lesson about checks and balances for the first president in American history who lacks any prior governing or military experience. Unlike congressional Republicans who have by and large kowtowed and capitulated to Trumpism, despite private uneasiness and grumbling in many cases, Republican-appointed judges are free not to care about the wrath of the president or blowback from his loyalists. This gives them the breathing room to worry more about the rule of law than partisanship. That was the point of an independent judiciary and giving lifetime appointments. It’s how the Constitution is supposed to work.

Judge Ilana Rovner, who was appointed to a district judgeship by Ronald Reagan and elevated to the circuit by George H.W. Bush, offers a remarkable rebuke of the Trump administration in a 35-page opinion that can be read as a tutorial on the separation of powers. She even throws around words like “tyranny” that you don’t often see in opinions of this nature:

“Our role in this case is not to assess the optimal immigration policies for our country,” she writes. “Rather, the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government …

“The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken …

“Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor … did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever‐vigilant in that endeavor.”

Rovner, 79, and her parents fled Latvia, and the Nazis, when she was an infant. She lost family members in the Holocaust. She often says that she decided to become a lawyer to stop anything like that genocide from happening again. Displayed in her chambers are the green card she was issued when she arrived in America in 1939 and her mother’s passport. “These are the things that saved my life,” she told the Chicago Tribune for a 2011 profile.

Her scathing opinion was joined by Judge William Bauer, who was appointed by Gerald Ford. Judge Daniel Manion, who Reagan put on the bench, wrote a concurrence saying he would have narrowed the injunction to protect only Chicago, rather than keeping it national.

The injunction was ordered last September by District Judge Harry Leinenweber, who was also appointed by Reagan.

2:02

Sessions in 2017: ‘Sanctuary’ cities lead to crime

Attorney General Jeff Sessions criticized Chicago’s sanctuary city policy while speaking in Miami on Aug. 16, 2017. (Reuters)

Attorney General Jeff Sessions has tried to require that cities give federal immigration agents access to undocumented immigrants who are in their jails in order to get certain public safety grants. This effort has already been blocked in separate lawsuits by federal judges in California and Pennsylvania. The judge who blocked the administration from holding back money from Philadelphia, Michael Baylson, was appointed by George W. Bush and wrote an unusually long 128-page ruling against the administration in November.

The 7th Circuit opinion yesterday complains that the term sanctuary cities “is commonly misunderstood” and “a red herring.” Contrary to popular understanding, the judges explain, “the federal government can and does freely operate in ‘sanctuary’ localities.”

— The Justice Department quickly criticized the ruling, saying the administration continues to believe it has the power to attach strings to money appropriated by Congress and complaining that courts keep issuing broad injunctions that thwart Trump. “Many in the legal community have expressed concern that the use of nationwide injunctions is inconsistent with the separation of powers, and that their increased use creates a dangerous precedent,” DOJ spokesman Devin O’Malley said in a statement. “We will continue to fight to carry out the department’s commitment to the rule of law, protecting public safety, and keeping criminal aliens off the streets to further perpetrate crimes.”

— Chicago Mayor Rahm Emanuel held an afternoon news conference to blast Trump as petty for refusing to hand over the grant money while the case continues to play out in the courts. “The Trump Justice Department could actually say ‘OK, we’re going to go forward with these grants, and let’s fight the case out in court,’” said the Democrat, who was Barack Obama’s first White House chief of staff. “But they refuse to give municipalities like Chicago and other cities around the country the resources to fight crime and gun violence, because they think fighting us on the principle of being a sanctuary, welcoming city, is more important than helping the police departments get the technology they need to do a better job in public safety.”

1:00

Supreme Court restricts deportations of immigrant felons

The Supreme Court ruled on April 17 that an immigration statute requiring the deportation of noncitizens who commit felonies is unlawfully vague. (Reuters)

— This is just the latest legal setback for Trump when it comes to his far-reaching immigration agenda.

On Tuesday, Justice Neil Gorsuch joined the Supreme Court’s four liberal members to strike down part of a federal law used to deport noncitizens who commit felonies on the grounds that it was unconstitutionally vague. The 5-to-4 decision could limit the government’s ability to deport people with criminal records, a Trump priority.

“Vague laws invite arbitrary power,” Gorsuch wrote in a concurring opinion. “Today’s vague laws … can invite the exercise of arbitrary power all the same — by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.”

“For the conservative Gorsuch to align with the liberals might seem a surprise, but his vote was in keeping with questions he asked during oral argument in October. And he was in part following in the footsteps of the justice he replaced, the late Antonin Scalia,” explains Supreme Court beat reporter Robert Barnes. “In 2015, Scalia wrote the court’s decision in Johnson v. United States, which struck down a similarly vague description of violent felony in the Armed Career Criminal Act.”

— Trump is incensed about Gorsuch’s vote. Administration officials say the president has been complaining to them that the justice “had proved too liberal in recent cases,” Robert Costa, Josh Dawsey and Rosalind S. Helderman report. “Associates … said it renewed his doubts that Gorsuch would be a reliable conservative. One top Trump adviser played down the comments as unhappiness with Gorsuch’s decision rather than with Gorsuch broadly.”

— In February, the Supreme Court rejected Trump’s request to immediately review the lower court decisions that prevent him from ending the Deferred Action for Childhood Arrivals program (DACA). Getting cert. would have only taken four votes, which means at least one GOP appointee opposed the administration’s request. The litigation over the fate of the “dreamers” will now follow the normal process, winding through the circuit courts.

1:35

President-elect Donald Trump pledged to end “sanctuary cities” while campaigning for the White House. Washington, D.C., is one such city. (Claritza Jimenez/The Washington Post)

— The courts have proved vexing for Trump since his first days in office. District Judge James Robart in Washington state, who was nominated by George W. Bush in 2004, halted the president’s first travel ban, which blocked citizens of seven majority-Muslim countries from entering the United States.

“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Trump tweeted angrily.

But it wasn’t. A three-judge panel on the 9th Circuit, which included another Bush 43 nominee, unanimously agreed. The administration withdrew the ban and issued another watered-down version.

— Barack Obama also lost cases in the courts, including on immigration. But he typically failed before conservative judges who had been appointed by Republicans more than judges appointed by his Democratic predecessors. The Harvard-educated former constitutional law professor had a much better record. To be sure, most judges appointed by Republicans are still siding with the administration most of the time. And Trump is remaking the judicial branch by appointing nominees who share his worldview.

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We should remember that it actually was GOP appointees like Judge Richard Posner of the 7th Circuit and Chief Judge John Walker of the 2nd Circuit (a cousin of President George W. Bush) who led the “Charge of Judicial Outrage” that eventually shut down the “assembly line removal system” set up by Ashcroft following his infamous “BIA Purge.”

PWS

04-20-18

IT TOOK MANY YEARS AND LOTS OF EFFORT, BUT RESPONDENTS FINALLY WON ONE @ THE BIA — ON STALKING — Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)

Sanchez3924

Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)

BIA HEADNOTE:

The offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), overruled.

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, MALPHRUS

OPINION BY: JUGE JOHN GUENDELSBERGER

DISSENTING OPINION: JUDGE GARRY D. MALPHRUS

KEY QUOTE FROM MAJORITY:

Although the DHS appears to concede that stalking under section 646.9 is “overbroad” relative to the definition we outlined in Matter of Sanchez-Lopez, it asserts that we should broaden the definition of a “crime of stalking” under section 237(a)(2)(E)(i) of the Act to meet contemporary standards. Specifically, it argues that we should redefine the term “stalking” in the Act based on its commonly understood meaning, either in 2012 when we decided Matter of Sanchez-Lopez, or based on the common elements of State and Federal stalking statutes in 2017.

We recognize that the common elements of stalking have evolved since section 237(a)(2)(E)(i) was added to the Act in 1996, in that a number of States have broadened the term “stalking” to cover threats of nonphysical harm in an effort to afford greater protections to their citizens against stalkers. However, we are constrained to define offenses “based on the ‘generic, contemporary meaning’ of the statutory words at the time the

statute was enacted.” Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). The DHS relies on the decision of the Supreme Court in Voisine v. United States, 136 S. Ct. 2272, 2281 (2016), which declined “to wind the clock back” to consider the common law in discerning whether the provision at issue reached reckless acts. But that case also looked to the legislative history and the “state-law backdrop” that existed at the time the statute was enacted. Id. at 2280–82. We are therefore unpersuaded to broaden the definition of the term “stalking” under section 237(a)(2)(E) of the Act to encompass the most contemporary understanding of that offense.

Upon reconsideration, we conclude that the offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Act. We will therefore overrule our decision in Matter of Sanchez-Lopez and vacate all prior orders in this case to the extent they hold to the contrary. Accordingly, because the respondent is not removable, his appeal will be sustained and the removal proceedings will be terminated.

KEY QUOTE FROM DISSENT:

The legal landscape has changed since we published our decision inMatter of Sanchez-Lopez. This case illustrates the limitations of applying the categorical approach imposed by the Supreme Court in Descamps andMathis to provisions of the immigration laws enacted by Congress for the purpose of removing aliens convicted of serious criminal conduct. See Matter of Chairez, 27 I&N Dec. 21, 25–26 (BIA 2017) (Malphrus, concurring). Under this approach, only if section 646.9 is divisible can we look to the respondent’s conviction records to determine if his conduct involved an intent to cause the victim to fear death or bodily injury, as many such stalking cases do. Because of this strict categorical approach, many statutes that have since broadened the scope of protection for stalking victims may not qualify as a categorical match to section 237(a)(2)(E)(i) of the Act. As a result, in California and many other States, an alien who was criminally convicted of stalking an innocent victim will not be removable under the Act, even though the record makes clear that he or she committed “a crime of stalking.” It is highly unlikely that Congress intended this result.

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I liked the comment from Dan Kowalski over at LexisNexis Immigration Community: “It only took about 6 years and several trips up and down the administrative and judicial food chain.”

My point (that I make over and over) is that there is NO WAY that an unrepresented respondent (particularly in DHS detention where most respondents convicted of crimes end up) could have achieved this result. That means that unrepresented individuals are wrongfully deported by DHS every day.

The Immigration Court system already is failing in its duty to guarantee fairness and due process to all respondents. Outrageously, instead of doing what he should do — working to insure maximum representation and raising the quality of Immigration Judge and BIA decisions to insure Due Process — Jeff Sessions is doing just the opposite!

He’s putting “haste makes waste quotas” on Immigration Judges; encouraging judges to deny continuances needed to obtain counsel and adequately prepare defenses; locating Immigration Courts in detention centers which intentionally lack both public access and ready availability of pro bono counsel; using coercive, substandard detention and family separation to deter individuals from pursuing potentially successful claims and defenses; further skewing the law against asylum seekers; and suspending the essential “Legal Orientation Program” which helps unrepresented individuals in detention understand their rights and what will happen in Immigration Court before their first appearance before a judge.

PWS

04-20-18

MULTI-TALENTED TAL @ CNN TAKES US TO THE S. BORDER IN PICTURES & WORDS!

http://www.cnn.com/2018/04/19/politics/secretary-nielsen-dhs-border-fence-wall-immigration/index.html

Snapshots from the US-Mexico border

By Tal Kopan, CNN

Updated 6:55 PM ET, Thu April 19, 2018

Here are Tal’s pictures. For whatever technical reason, you’ll have to go to the original article at the link to get the captions that go with them!

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Wow! As those of you who read “Courtside” on a regular basis know, I’m a HUGE FAN of Tal’s timely, incisive, concise, and highly accessible reporting. I feature it on a regular basis. I’ve also seen her do a great job on TV and video. But, until now, I didn’t know about her skills as a photojournalist. Tal can do it all!

Also, as my colleague Judge and Super-Blogger Jeffrey Chase pointed out in one of his recent comments on this blog, pictures play an essential role in understanding the immigration saga in America.

Been there, done that in my career. Takes me back to the long past days of riding three wheelers, helicopters, Patrol Cars, looking through infrared night scopes, and even accompanying foot patrol during my days in the “Legacy INS General Counsel’s Office.” (Most often on the border south of San Diego.) We actually took the Trial Attorneys and some of the Assistant U.S. Attorneys prosecuting our cases with us to show them what it was really like at the “ground level.”

Actually doesn’t look all that much different decades later. What is painfully clear is that walls, fences, helicopters, detectors, unrealistically harsh and restrictive laws, and more detention centers (the “New American Gulag”) will never, ever “seal” our borders as some immigration hard-liners insist is possible.

At best, we can control, channel, and regulate the flow of migrants, but not halt it entirely. Human migration was taking place long before the U.S. became a nation, and I daresay that it will continue as long as there are humans left on earth. To think that walls, troops, concentration camps, harsh laws, and prisons are going to halt it completely is a mixture of arrogance and ignorance.

So, rather than pouring more money down the drain on the same “strategies” that have been failing for decades, a “smart” border control policy would involve:

More realistic and generous interpretations of our refugee and asylum laws that should include most of those fleeing for their lives from the Northern Triangle;
A much larger and more “market based” legal immigration system for permanent and temporary migrants that would meet the legitimate needs of U.S. employers and our economy while making it attractive for most prospective workers and employers to use the legal visa system rather than the “black market” of undocumented entry;
A larger and more robust refugee processing program for Northern Triangle refugees so most would be screened and documented outside the U.S.;
Cooperation with the UNHCR and other stable countries in the Western Hemisphere to distribute the flow of long-term and temporary refugees in an equitable manner that will help both the refugees and the receiving countries;
Working with and investing in Mexico and Northern Triangle countries to address and correct the conditions that create migration flows to the Southern Border.
Providing lawyers for asylum applicants who present themselves at the Southern Border so that their claims for protection (which actually go beyond asylum and include protection under the Convention Against Torture) can be fairly, correctly, and efficiently determined in an orderly manner in accordance with Due Process.

No, it’s unlikely to happen in my lifetime. But, I hope that future generations, including the members of the “New Due Process Army,” will find themselves in a position to abandon past mistakes, and develop the smart, wise, generous, humane, realistic, and effective immigration and refugee policies that we need to keep our “nation of immigrants” viable and vitalized for centuries to come. Until then, we’re probably going to have to watch folks repeat variations of the same painful mistakes over and over.

PWS

04-19-18

SCOFFLAW SESSIONS LOSES AGAIN ON SANCTUARY CITIES – 7TH CIRCUIT FINDS SESSIONS’S ACTIONS UNCONSTITUTIONAL “Usurpation Of Power” — City of Chicago v. Sessions

Trump and Sessions lose another sanctuary cities case

By: Tal Kopan, CNN

A federal appeals court struck another blow Thursday to the Trump administration’s efforts to pressure sanctuary cities, upholding a court order preventing the Justice Department from imposing conditions on grants to cities.

The three-judge panel from the 7th US Circuit Court of Appeals upheld a lower court’s decision blocking the Justice Department from adding new conditions on policing grants that had required some cooperation with federal immigration enforcement.

The ruling makes it the latest federal court, along with courts in California and Philadelphia, to restrict what the administration can try to do to pressure jurisdictions that restrict some cooperation with federal immigration enforcement.

It comes as President Donald Trump has been targeting his fury on Twitter at sanctuary cities, which administration officials accuse of jeopardizing public safety.

The judges sided with the city of Chicago in the case, which had challenged Attorney General Jeff Sessions’ July effort to condition the Edward Byrne Memorial Justice Assistance Grant Program on two new requirements: allowing federal immigration authorities access to local detention facilities and providing the Department of Homeland Security with at least 48 hours’ notice before local officials release an undocumented immigrant wanted by federal authorities.

The administration has been aggressive in asking cities to comply with those requests, but a number of cities and police chiefs around the country argue that cooperating in that way could jeopardize the trust police need to have with local communities, and in some cases could place departments in legal gray areas.

Like the district judge, the appellate judges found that Chicago was likely to succeed in its case that such conditions would be a violation of the Constitution and law, as Congress did not authorize those conditions when it created the grants.

The judge who wrote the opinion called the attorney general’s move a “usurpation of power.”

More: http://www.cnn.com/2018/04/19/politics/court-rules-against-trump-sessions-sanctuary-cities-chicago/index.html

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Our Attorney General continues to thumb his nose at the Constitution while wasting judicial time. That’s what the “rule of law” means in “Gonzoland.”

Here’s a link to the 7th Circuit’s full decision written by Judge Rovner.

7thChicagoSanctuaryInjunction

PWS

0-9-18

“GANG OF 18” RETIRED IMMIGRATION JUDGES WEIGHS IN BEFORE SENATE JUDICIARY ON SESSIONS’S ABUSES OF DUE PROCESS & NEED FOR ARTICLE I COURT — NAIJ PRESIDENT JUDGE A. ASHLEY TABADDOR PRESENTS STUNNING EVIDENCE OF SESSIONS’S ALL OUT ATTACK ON JUDICIAL INDEPENDENCE, PROFESSONALISM, & FAIRNESS TO THOSE APPEARING BEFORE THESE COURTS!

With the help of the amazing Laura Lynch, Senior Policy Counsel at AILA (picture above), here’s the statement filed by our (ever-growing) “Gang of 18” Retired Judges:

Statement of Retired Immigration Judges and former members of the Board of Immigration Appeals

Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration

Hearing on “Strengthening and Reforming America’s Immigration Court System”

April 18, 2018

This statement for the record is submitted by retired immigration judges and former members of the Board of Immigration Appeals (BIA). Drawing upon our many years of combined service, we have an intimate knowledge of the operation of the immigration courts. Immigration judges and Board members are supposed to act as neutral arbiters; however, they are considered to be employees of the nation’s chief law enforcement agency, the U.S. Department of Justice (DOJ), rather than true judges. The DOJ is run by politically appointed law enforcement officials, making EOIR vulnerable to improper political pressures. In order to restore public confidence in the immigration court system and to insulate EOIR from political pressure, the immigration court system must be removed from the DOJ to an independent article I court structure that focuses on due process and efficient court administration.

For over a decade, the immigration courts have been severely underfunded when compared to the

budget increases that Congress has provided to immigration enforcement. EOIR has been unable to keep pace with the growing number of removal proceedings. The Trump administration has further contributed to this backlog, announcing broad new immigration enforcement priorities in January of 2017 that make almost everyone who is undocumented a priority for arrest. With the immigration court case backlog approaching 700,000 cases, we can all agree that our immigration court system is in crisis.

Instead of working to improve the immigration court system, DOJ and EOIR have issued policies that will threaten the integrity and independence of the immigration courts.

Imposing case completion quotas

On March 30th, the Director of EOIR announced that immigration judges will now be subject to case completion quotas. This unprecedented change will be effective October 1, 2018, and starting then, immigration judges will be subject to performance reviews (tied to job security and raises) that focus on meaningless numbers and disregard due process. An immigration judge should be evaluated based on the quality of her decisions, not the quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors. Poor decisions will also directly result in more appeals to the BIA and the Courts of Appeal, and more remands, causing more delays and running contrary to the goals of the Attorney General (AG).

Curbing use of docketing management tools such as use of continuances

On July 31, 2017, the Chief Immigration Judge issued a memorandum making it more difficult for judges to grant multiple continuances. This policy along with the imposition of case completion quotas heightens concerns that cases will be rushed through the immigration court system. Continuances are necessary in a

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variety of circumstances, such as when an individual is facing deportation in immigration court while awaiting a decision by the U.S. Citizenship Immigration Services (USCIS) on a pending application. Examples of such applications are “U” visas for crime victims, I-601A waivers for unlawful presence, I-130 visa petitions for family members of residents or citizens, or I-751 applications for certain individuals married to U.S. citizens. By law, immigration judges cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. But the result of those applications may be outcome determinative in removal proceedings. To date, case law supports judges granting continuances, when it makes sense, in circumstances like these. However, under the new quota system, a judge could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of concern about completion numbers and job retention. That is not justice; it seems more like an assembly line. Circuit courts will not excuse due process violations based on immigration judges having to meet arbitrary completion goals.

The AG is taking dramatic steps to rewrite immigration law.

The AG recently utilized his authority to certify two BIA decisions to himself for review to examine a judges’ authority to utilize docket management tools including use of continuances and administrative closure. As described in our amicus brief, immigration judges have inherent powers (including the power to control their own dockets, and to administratively close cases as a means of exercising such control) delegated to them by Congress, and not the Attorney General. Such authority of judges to control their dockets has been recognized by the Supreme Court and lower federal courts. Both the issuance of continuances and administrative closure are important docket management tools that allow judges to manage high caseloads. The certification of these cases signals the AG’s intent to massively curtail judicial independence. The solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.

Additional Resources from Retired Immigration Judges and Former BIA Members

● Jeffrey S. Chase, The Need For an Independent Immigration Court, Jeffrey S. Chase Opinions/Analysis on Immigration Law, (Aug. 17, 2017), https://www.jeffreyschase.com/blog/2017/8/17/the-need-for-an-independent-immigration-court.

● Jeffrey S. Chase, IJs, Tiered Review and Completion Quotas, Jeffrey S. Chase Opinions/Analysis on Immigration Law, (Nov. 9, 2017), https://www.jeffreyschase.com/blog/2017/11/9/ijs-tiered-review-and-completion-quotas.

● Bruce Einhorn, Jeff Sessions wants to bribe judges to do his bidding, Washington Post, (Apr. 5, 2018), https://www.washingtonpost.com/opinions/jeff-sessions-wants-to-bribe-judges-to-do-his-bidding/2018/04/05/fd4bdc48-390a-11e8-acd5-35eac230e514_story.html?utm_term=.758f0b92e2e6.

● John F. Gossart, Time to fix our immigration courts, The Hill, (Feb. 26, 2014), http://thehill.com/blogs/congress-blog/judicial/199224-time-to-fix-our-immigration-courts.

● Lory Rosenberg, Much Sound and Fury: Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018), ILW, (Mar. 6, 2018),http://blogs.ilw.com/entry.php?10427-Much-Sound-and-Fury-Matter-of-E-F-H-L-27-I-amp-N-Dec-226-(A-G-2018)

● Paul Wickham Schmidt, Retired Immigration Judge and Former Chairman of the BIA Responds to Implementation of Production Quotas, Immigration Courtside, (Apr. 4, 2018), http://www.aila.org/infonet/retired-immigration-judge-and-former-chairman

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● Paul Wickham Schmidt, We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?, Immigration Courtside, http://immigrationcourtside.com/we-need-an-article-i-united-states-immigration-court-now/.

● Robert Vinikoor, Take it From a Former Immigration Judge: Quotas Are a Bad Idea, Minsky, McCormick & Hallagan, P.C. Blog, (Apr. 12, 2018), https://www.mmhpc.com/2018/04/take-it-from-a-former-judge-quotas-for-immigration-judges-are-a-bad-idea/.

We appreciate the opportunity to provide this statement for the record and look forward to engaging as Congress considers reforming the immigration court system.

Contact with questions or concerns: Jeffrey Chase, jeffchase99@gmail.com.

Sincerely,

Honorable Steven R. Abrams

Honorable Patricia L. Buchanan

Honorable Sarah M. Burr

Honorable Jeffrey S. Chase

Honorable George T. Chew

Honorable Bruce J. Einhorn

Honorable Cecelia M. Espenoza

Honorable Noel Ferris

Honorable John F. Gossart, Jr.

Honorable William P. Joyce

Honorable Carol King

Honorable Elizabeth A. Lamb

Honorable Margaret McManus

Honorable Lory D. Rosenberg

Honorable Susan Roy

Honorable William Van Wyke

Honorable Paul W. Schmidt

Honorable Polly A. Webber

List of Retired Immigration Judges and Former BIA Members

The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.

The Honorable Patricia L. Buchanan served as an Immigration Judge in New York City from June 2015 to July 2017, having responsibility for a detained docket for more than a year and a half. From December 2003 to October 2014, she served in various roles within the Immigration Unit of the Civil Division of the United States Attorney’s Office for the Southern District of New York, including

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Assistant United States Attorney and Chief of the Immigration Unit. From 2001 to 2003 she served as a trial attorney in the Department of Justice, Civil Division, Office of Immigration Litigation in Washington, DC. From 1996 to 2001, she served as a trial attorney on a detained docket with the former Immigration and Naturalization Service in the New York District. During a significant period of her time as a federal court litigator, she authored a monograph analyzing hundreds of precedent decisions on process and procedural issues (including rights and limitations to continuances) in removal proceedings and presented at numerous DOJ and DHS trainings on due process issues. Prior to joining the Department of Justice, she worked as a Temporary and Volunteer Attorney at Westchester/Putnam Legal Services from 1995 to 1996 and worked at Mid-Hudson Legal Services from 1991 to 1995.

The Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

Honorable George T. Chew

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014

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and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Elizabeth A. Lamb was appointed to the immigration bench in 1992. Previously she served as EEO counsel to the St. Regis paper company and was of counsel to Catholic Charities in New York City for immigration matters. Before law school she served as press secretary for then Congressman Hugh L. Carey and later for commissioner Bess Myerson at the New York City Department of Consumer

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Affairs. Her first job after graduation from law school was for the New York State Department of Criminal Justice Services. She retired on January 6, 2018.

The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.

The Honorable William Van Wyke

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant

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Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.

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It was a great honor and privilege to be part of this distinguished group. To our other retired colleagues out there, we’re always more than happy to have join the group an continue the fight to “guarantee fairness and due process to all.” (Actually, the long-forgotten mission of EOIR). It also provides a great opportunity to chat online with each other and catch up on some of the amazing “post-bench” achievements of our colleagues.

And, once again, that’s to Laura Lynch without whose support, skill, and expertise, this effort could never have happened.

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Here’s the detailed and deeply disturbing statement of Judge A. Ashley Tabaddor, of the United States Immigration Court in Los Angeles, CA, in her capacity as President of the National Association of Immigration Judges (“NAIJ”). It’s impossible to read Judge Tabaddor’s heartfelt words without being totally outraged by the all-out assault on fairness to, and the human dignity of, those seeking justice from the Immigration Courts and those trying to help them present their cases; the intentional demeaning and de-professionalization of U.S. Immigration Judges struggling to provide impartial justice in a system intentionally rigged against it; the patently dishonest attempt to shift blame for the Immigration Court’s current dysfunction from the politicos who caused it to their victims; and the all out disrespect for truth, the law, ethics, our Constitution, and basic human rights and decency shown by Jeff Sessions.

Statement of

Judge A. Ashley Tabaddor, President

National Association of Immigration Judges

April 18, 2018

Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee

Hearing on “Strengthening and Reforming America’s Immigration Court System”

INTRODUCTION

I am Ashley Tabaddor, President of the National Association of Immigration Judges (NAIJ), and an Immigration Judge.1 For the past twelve years I have served in the Los Angeles Immigration Court. My current pending case load is approximately 2000 cases. Chairman Cornyn, Ranking Member Durbin and members of the Subcommittee, thank you for the opportunity to testify before the Subcommittee.

1 I am speaking in my capacity as President of the NAIJ and not as employee or representative of the U.S. Department of Justice, Executive Office for Immigration Review (EOIR). The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent my personal opinions, which were formed after extensive consultation with the membership of NAIJ.

I am pleased to represent the NAIJ, a non-partisan, non-profit, voluntary association of United States Immigration Judges. Since 1979, the NAIJ has been the recognized representative of Immigration Judges for collective bargaining purposes. Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security (DHS) are conducted. We work to improve our court system through: educating the public, legal community and media; testimony at congressional oversight hearings; and advocating for the integrity and independence of the Immigration Courts and Immigration Court reform. We also seek to improve the Court system and protect the interests of our members, collectively and individually, through dynamic liaison activities with management, formal and informal grievances, and collective bargaining. In addition, we represent Immigration Judges in disciplinary proceedings, seeking to protect judges against 2

unwarranted discipline and to assure that when discipline must be imposed it is imposed in a manner that is fair and serves the public interest.

I am here today to discuss urgently needed Immigration Court Reform and the unprecedented challenges facing the Immigration Courts and Immigration Judges. Immigration Courts have faced structural deficiencies, crushing caseloads and unacceptable backlogs for many years. Many of the “solutions” that have been set forth to address these challenges have in fact exacerbated the problems and undermined the integrity of the Courts, encroached on the independent decision-making authority of the Immigration Judges, and further enlarged the backlogs. I will be focusing my discussion on the inherent structural defect of the Immigration Court system, the Department of Justice’s (DOJ) misguided “solutions” to the current court backlog, and proposed solutions to the challenges facing the court, including the only enduring solution: restructuring of the Immigration Court as an independent Article I Court.

THE FUNDAMENTAL FLAW

⦁ The Placement of a Neutral Court in a Law Enforcement Agency

The inherent conflict present in pairing the law enforcement mission of the DOJ with the mission of a court of law that mandates independence from all other external pressures, including those of law enforcement priorities, has seriously compromised the very integrity of the Immigration Court system and may well lead to the virtual implosion of this vital Court.

Immigration Judges make the life-changing decisions on whether or not non-citizens are allowed to remain in the United States. Presently, approximately 330 Immigration Judges in the United States are responsible for adjudicating almost 700,000 cases. The work is hard. The law is complicated; the labyrinth of rules and regulations require expertise in an arcane field of law. The stories people share in court are frequently traumatic and emotions are high because the stakes are so dire. The proceedings are considered “civil” cases, in contrast to “criminal” cases. Thus, people are not provided attorneys and must either pay for one, find a volunteer, or represent themselves. Last year, approximately 40 percent of the individuals who appeared in our courtrooms represented themselves, a figure that rises to 85 percent when only detained cases are considered. Further complicating the situation, only 15 percent of immigration cases are conducted in the English language. Finally, our courtrooms and systems lack modern technology and unlike federal courts, the Immigration Courts still rely on paper records.

But here’s the core of the problem: Immigration Judges wear two hats. On the one hand, we are statutorily recognized as “Immigration Judges,” wear judicial robes, and are charged with conducting ourselves consistently with canons of judicial ethics and conduct, in order to ensure our role as impartial decision-makers in the cases over which we preside. In every sense of the word, on a daily basis, when presiding over our case in our courts, we are judges: we rule on the admissibility of evidence and legal objections, make factual findings and conclusions of law, and 3

decide the fate of thousands of respondents each year. Last year, our decisions were final and unreviewed in 91% of the cases we decided.

In addition, and in contrast to our judicial role, we are considered by the DOJ to be government attorneys, fulfilling routine adjudicatory roles in a law enforcement agency. With each new administration, we are harshly reminded of that subordinate role and subjected to the vagaries of the prevailing political winds.

At first glance, this may not seem too damaging; after all, our government structure is resilient and must respond to changes demanded by the public. However, this organizational structure is the fundamental root cause of the conflicts and challenges that have plagued the Immigration Court system since its inception and now threatens to cripple it entirely because the very mission of a neutral court is to maintain balance despite political pressures.

⦁ Politicization of the Immigration Courts

Examples of where this conflict of interest has led to the infringement on the independence of the Immigration Court are numerous throughout the past decades and under administrations of both political parties. It is no secret that the DHS, whose attorneys appear before the Court, regularly engages in ex-parte communication with the DOJ. On the macro level, these communications have directly led to the use of the Immigration Court system as a political tool in furtherance of law enforcement policies.

One common use of the Courts as a political tool has been the incessant docket shuffling in furtherance of various law enforcement “priorities.” For example, during the last administration, the mandated “surge” dockets prioritized recent arrivals, such as unaccompanied minors and adults with children, over pending cases before the Court. Similarly, this administration uprooted approximately one third of all Immigration Judges in the 2017 calendar year to assign them temporarily to “border courts” to create the “optics” of a full commitment to law enforcement measures, even at the expense of delaying hundreds of cases at each home. The DOJ claimed that the border surge resulted in an additional completion of 2700 cases. This number is misleading as it does not account for the fact that detained cases at the border are always completed in higher numbers than non-detained cases over a given period. Thus, the alleged 2700 additional completions was a comparison of apples to oranges, equating proceedings completed for those with limited available relief to those whose cases by nature are more complicated and time consuming as they involve a greater percentage of applications for relief. Moreover, many questioned the veracity of the Agency’s reported numbers because so many judges who went to the border courts had no work to do and faced malfunctioning equipment, often with no internet connection, or files. Meanwhile the dockets of these Immigration Judges at their home courts were reset to several years later, not to mention the unnecessary additional 4

financial costs of these details. Such docket shuffling tactics have led to further increases in delays and to the backlog of cases before the Immigration Court system as a whole.

On the micro level, individual judges have been tasked with responding to complaints voiced by DHS to the Executive Office for Immigration Review (EOIR) management about how a particular pending case or cases are being handled, in disciplinary proceedings without the knowledge of the opposing party.

⦁ DOJ Priorities

One of the most egregious and long-standing examples of the structural flaw of the Courts’ placement in the DOJ is that Immigration Judges have never been able to exercise the congressionally mandated contempt authority statutorily authorized by Congress in 1996. This is because the DOJ has never issued implementing regulations in an effort to protect DHS attorneys (who it considers to be fellow federal law enforcement employees). However, as Congress recognized in passing contempt authority, misconduct by both DHS and private attorneys has long been one of the great hindrances to adjudicating cases efficiently and fairly. For example, it is not uncommon for cases to be continued due to private counsel’s failure to appear or be prepared for a hearing, or DHS’ failure to follow the Court’s orders, such as to conduct pre-trial conferences to narrow issues or file timely documents and briefs. Just a couple of months ago, when I confronted an attorney for his failure to appear at a previous hearing, he candidly stated that he had a conflict with a state court hearing, and fearing the state court judge’s sanction authority, chose to appear at that hearing over the immigration hearing in my court. Similarly, when I asked a DHS attorney why she had failed to engage in the Court mandated pre-trial conference or file the government’s position brief in advance of the hearing, she defiantly responded that she felt that she had too many other work obligations to prioritize the Court’s order. These examples represent just a small fraction of the problems faced by Immigration Courts, due to the failure of the DOJ, in over 20 years, to implement the Congress approved even-handed contempt authority..

Similarly, Immigration Judges are subject to regulations that provide a one-sided veto of a judge’s decision by DHS. Title 8 C.F.R. section 1003.19 provides that the DHS, who appears as a party before the Immigration Court, can effectively vacate an Immigration Judge’s bond decision through automatic stay powers that override an Immigration Judge’s decision to set or reduce bond for certain individuals.

In a separate failure to safeguard the Immigration Courts, the DOJ has consistently proven to be ineffective in the timely appointment of judges. Historically, this was due, in part, to the Court’s placement in a law enforcement agency where for years, the Court was treated as an afterthought in DOJ, receiving scraps instead of full allotments of needed resources. However, even after the 9/11 tragedy, the DOJ has still visibly struggled with filing Immigration Judge positions, many 5

of which have taken almost two years to fill. Hiring practices by the Agency have a demonstrated history of politically motivated appointment practices, as evidenced by the Office of the Inspector General and Office of Professional Responsibility reports exposing political concerns and nepotism that have crept into the hiring process.2 And now, the DOJ surreptitiously has made substantive changes to the qualification requirements for judges, over-emphasizing litigation experience to the exclusion of other relevant immigration law experience. This has created even more skewed appointment practices that largely have favored individuals with law enforcement experience over individuals with more varied and diverse backgrounds, such as academics and United States Citizenship and Immigration Service attorneys, who are perceived as not sufficiently law enforcement oriented.

2 An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, DOJ OIG and OPR, July 28, 2008; Report Regarding Investigation of Improper Hiring Practices by Senior Officials of the Executive Office for Immigration Review, DOJ OIG, November 2014.

Another example of the structural problem of placing a Court in the DOJ has been the application of federal employee performance evaluations on Immigration Judges. Many courts have performance reviews for Judges, but the overwhelming majority of these reviews follow a judicial model – a transparent, public process where performance is evaluated by input from the stakeholders (attorneys, witnesses, and court staff) based on quality and temperament, not quantity, and is not tied to discipline. However, despite strenuous objections and warnings of conflicts of interest from the NAIJ, the EOIR has chosen to use a traditional federal employee performance review system. These evaluations are not public and are conducted by a management official who is often not located in the same court and does not consider input from the public, and can result in career-ending discipline to a Judge who makes a good faith legal decision that his or her supervisor considers to be insubordinate. This is the flawed current performance evaluation model for Immigration Judges, without the added, soon to be implemented, disastrous production quotas and time-based deadlines that were recently announced by the Department, which I will discuss shortly.

⦁ EOIR’s Decision to Halt the LOP Program

Another stark example of the mismanagement of the Immigration Court due to its placement in an agency with a competing mission is the recently announced EOIR decision to halt the Legal Orientation Program (LOP), despite its proven track record of increased efficiency and enhanced fundamental fairness for pro se respondents in detention facilities. This population of respondents, who are being held in custody, are frequently in extremely remote locations, and often lack the resources or the means to secure counsel or even to properly represent themselves due to language access issues. The lack of assistance in these areas delays their proceedings, often needlessly for those who seek merely a brief legal consultation before making an informed and timely decision to accept an order of removal. Thus in cases where the respondents lack 6

viable relief, the LOP can be instrumental in helping respondents make an informed decision to accept a final order of removal, dramatically minimizing costly detention time and expense.

Competent counsel, when available, can assist the Court in efficiently adjudicating cases before it. In the absence of competent counsel, the LOP provides the necessary bridge to ensure a minimum standard of due process is quickly and efficiently provided. The LOP helps respondents better understand the nature of these proceedings and the steps they need to take to present their cases when in court, understand and complete their applications for relief, and obtain evidence in their case. Without such assistance, judges are required by regulation to spend time and resources explaining these proceedings, soliciting the necessary information for the case, and providing respondents the opportunity to obtain evidence once they become aware it is needed.

Ironically, even the DOJ website has publicly supported the LOP program, citing the positive effects on the Immigration Court process, and the fact that cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention. However, once again without consultation with NAIJ, EOIR has made a decision seemingly ignoring the ramifications of how this will likely play out in the remote court locations, further undermining the structural integrity and the smooth functioning of the Court.

⦁ EOIR’s Recent Severe Restriction of Immigration Judge Speaking Engagements

In September 2017, the Agency issued a new memorandum almost eliminating personal capacity speaking engagements for Immigration Judges on any matters relating to the Court or immigration law.

The primary role of a court is to be a neutral and transparent arbiter, and this perception is reinforced when the court is accessible to the community it serves. Public access and understanding of what courts do is essential to build the understanding and trust needed for the judicial system to function smoothly. Judges are the face of that system and serve as role models who should be encouraged to engage with the community to inspire, educate and support civic engagements. Many of our Immigration Judges are active members of the legal and civil community who are sought out to speak in schools, universities, and bar associations as role models and mentors. They help the community better understand our Immigration Courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public. In the past, the DOJ had permitted Immigration Judges to publicly speak in their personal capacity on issues related to the Court and their Immigration Judge roles, (with the use of their title and a disclaimer that they are not speaking on behalf of the Agency).

This new policy brought a 180-degree reversal on many existing programs that included participation of Immigration Judges, from the Model Hearing Program, the Stakeholder 7

Meetings, to appearing as guest lecturer at one’s Alma Mater, etc. Judges who have been engaged in the community are now being deprived of the opportunity to fulfil those roles. This ill-advised move is yet another example of the misguided instincts of a law enforcement agency, which endeavors to keep its operations opaque, leading to an absolutely wrong result for a court system where transparency is essential to build public trust and confidence. This is yet another example which underscores the structural flaw that plagues our courts.

MISGUIDED SOLUTIONS TO THE BACKLOG

⦁ IJ Production Quotas and Deadlines

Based on a completely unsupported assertion that this action will help solve the Court’s backlog, DOJ has taken an unprecedented move that violates every tenet of an independent court and judges, and has announced that it will subject all Immigration Judges to individual production quotas and time-based deadlines as a basis for their performance reviews. A negative performance review due to failure to meet quotas and deadlines may result in termination of employment. This is despite the legal duty of Immigration Judges, codified by regulation, to exercise independent judgement and discretion in each of the matters before them. The havoc this decision will wreak cannot be understated or underestimated.

To fully understand the import of this approach, one must make the critical distinction between court-wide “case completion goals” or “benchmarks” versus individual production quotas and time-based deadlines for judges. The Immigration Court system has had “case completion goals” of some sort for over two decades. These are tools used as resource allocation metrics to help assess resource needs and distribute them nationally so that case backlogs are within acceptable limits and relatively uniform across the country. In fact, when individual performance evaluations were first applied to Immigration Judges over a decade ago, the EOIR agreed to a provision that prevented any rating of the judges based on number or time based production standards, in recognition of the fact that quotas or deadlines placed on an individual Immigration Judge are inconsistent with his or her independent judicial role. The public comments at that time made clear that otherwise quantitative priorities or time frames could abrogate the party’s right to a full and fair hearing. At that time, the DOJ assured the public that case completion goals would not be used this way and that judges would maintain the discretion to set hearing calendars and prioritize cases in order to assure they had the time needed to complete the case.

This tool of court-based evaluation metrics stands in stark contrast to the individual production quotas and completion deadlines which are now being proposed by EOIR. Introduction of individual Immigration Judge production quotas is tantamount to transforming a judge into an interested party in the proceedings. It is difficult to imagine a more profound financial interest than one’s very livelihood being at stake with each and every ruling on a continuance or need for additional witness testimony which would delay a completion. Yet production quotas and time- based deadlines violate a fundamental canon of judicial ethics which requires a judge to recuse 8

herself in any matter in which she has a financial interest that could be affected substantially by the outcome of the proceeding.

This basic principle is so widely accepted that the NAIJ is not aware of a single state or federal court across the country that imposes the type of production quotas and deadlines on judges like those that EOIR has now announced. A numeric quota or time-based deadline pits the judge’s personal livelihood against the interests both the DHS and the respondent. Every decision will be tainted with the suspicion of either an actual or subconscious consideration by the judge of the impact his or her decision would have regarding whether or not he or she is able to fulfill a personal quota or a deadline.

In addition to putting the judges in the position of violating a judicial ethical canon, such quotas pits their personal interest against due process considerations. Recently, the Seventh Circuit Court of Appeals noted in a case addressing imposition of case completion goals – not quotas – that there may be situations that such goals, even though they are not tied to a judge’s performance evaluation, could so undermine decisional independence as to create a serious issue of due process.

If allowed to be implemented, these measures will take the Immigration Courts out of the American judicial model and place it squarely within the model used by autocratic and dictatorial countries, such as China, which began instituting pilot quota programs for their judges in 2016.3 NAIJ does not believe that such courts should serve as a good blueprint for EOIR or for any court in a democratic society.

3See www.chinadaily.com.cn/china/2017-02/27/content_28361584_6.htm.

⦁ Unintended Consequences of Misguided Solutions

The DOJ has touted the imposition of a quota system on judges as a solution to the crushing backlogs facing the Immigration Courts. It is critical to recognize that the current backlog of cases is not due to lack of productivity of Immigration Judges; it is due, in part, to the Department’s consistent failure, spanning more than a decade to hire enough judges to keep up with the caseload. In 2006, after a comprehensive review of the Immigration Courts by Attorney General Gonzales, it was determined that a judge corps of 230 Immigration Judges was inadequate for the caseload at that time (approximately 168,853 pending cases) and should be increased to 270. Despite this finding, there were less than 235 active field Immigration Judges at the beginning of FY 2015. Even with a recent renewed emphasis on hiring, the number of Immigration Judges nationwide as of April 2018 stood at approximately 330 sitting judges, well below authorized hiring levels of 384. From 2006 to 2018, while the caseload has quadrupled (from 168,853 to 684,583 as of March 1, 2018), the number of Immigration Judges has not even doubled! Additionally, up to 40 percent of the Immigration Judge Corps are retirement eligible 9

and are exercising that right at a much higher rate than previously seen. Thus, hiring by the Agency has also failed to keep pace with the loss of judges by retirement or attrition.

Moreover, the 2017 GAO report on Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Changes (GAO-17-438) shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances which occurred primarily due to politically motivated changing court priorities, forced Judges to reset cases that were near completion in order to address the cases which were the priority “du jour,” and have had a tremendous deleterious effect on case completion rates. The same report shows that continuances attributed to the needs of the judge was responsible for only 11% of the continuances granted, clearly debunking the myth that Immigration Judges are significantly contributing to the backlog.

The cause of the increasing backlog is obvious: the ever-ballooning budget for immigration law enforcement which has not been accompanied by concomitant resources to the Immigration Courts. In the period that the budget for DHS saw an increase of 300 percent, the Immigration Court’s budget was only modestly increased by 70 percent. This is tantamount to increasing the lanes in a highway from one to three but failing to increase the number of exit ramps for everyone, then claiming that the exit ramps are the cause of the increased congestion and traffic. Simple common sense tells us otherwise.

Finally, the imposition of numeric quotas and time-based deadlines will have the unintended consequence of further adding to the backlog. A similar measure proposing to “streamline” the adjudications of immigration removal cases was introduced post 9/11 during the Attorney General John Ashcroft era. In the face of a ballooning backlog (which pales in comparison to the current one), the DOJ implemented streamlining measures at the Board of Immigration Appeals that significantly increased the number of case completions at the expense of reasoned decisions. This action caused a flood of appeals to the circuit courts, to a five-fold increase, from 1764 filings in 2002, when the program was announced, to 8446 in 2003 and onwards. Many of these cases were ultimately reversed or remanded all the way back to the trial court level, due to actual or perceived insufficiencies of the process or paucity of reasoning in the decisions. The “streamlining” program was quietly put to rest many years later when its failure was no longer deniable. If Immigration Judges are subjected to production quotas and time-based deadlines, the result will be the same: appeals will abound, repeating a history which was proven to be disastrous. Rather than making the overall process more efficient, this change will encourage individual and class action litigation, creating even longer adjudication times and greater backlogs. 10

Another unintended consequence if these quotas and deadlines are applied, is that judicial time and energy will be diverted to documenting performance rather than deciding cases. Immigration Judges will become bean-counting employees instead of fair and impartial judges, and their supervisors will become traffic cops monitoring whether the cases are completed at the correct speed. What a waste of skilled professional expertise! Judges’ job security will be based on whether or not they meet these unrealistic quotas and their decisions will be subjected to increased appeals based on suspicion regarding whether any actions they take, such as denying a continuance or excluding a witness, are legally sound or motivated to meet a quota. It is difficult to find a shred of practical justification in this approach.

SHORT TERM SOLUTIONS

⦁ Clarify the Definition of the Immigration Judge Position

The most pressing matter threatening the integrity and efficiency of the Immigration Court system which can quickly and easily be remedied is the DOJ’s decision to impose Immigration Judge production quotas and deadlines. If permitted to be implemented, as planned, on October 1, 2018, the Immigration Courts as we know them will cease to exist. Immigration Judges will no longer be able to serve as impartial and independent decision-makers over the life-altering cases before them.

To preserve the judicial independence of Immigration Courts Congress can:

(1) Amend the Immigration and Nationality Act to clarify the definition of an Immigration Judge as follows:

“The term “immigration judge” means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 1229a of this title, whose position shall be deemed to be judicial in nature and whose actions shall be reviewed only under rules and standards pertaining to judicial conduct.”

This definitional change was offered by Senators Gardner and Bennet as part of their bipartisan immigration amendment earlier this year. Senator Hirono’s recent immigration amendment also included this language;

(2) Alternatively, Congress can add Immigration Judges to the short list of federal government employees whose positions are exempt from performance evaluation due to the nature of their duties, as are Administrative Law Judges (ALJs). 5 U.S.C. § 4301(2)(D). Recognizing that federal employee performance evaluations are antithetical to judicial independence, Congress exempted ALJs from performance appraisals and ratings by including them in the list of 11

occupations exempt from performance reviews. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) to add a new paragraph (I) including Immigration Judges as an additional category in the list of exempt employees.

Extension of 5 U.S.C. § 4301(2)(D) to Immigration Judges is not an indication that NAIJ is opposed to performance evaluation of Immigration Judges. To the contrary, NAIJ fully supports performance evaluations that are based on judicial models, such as those recommended by the American Bar Association. These models stress judicial improvement as the primary goal, emphasizes process over outcomes, and places a high priority on maintaining judicial integrity and independence. Moreover, to the extent that any numeric metrics are included in such models, they would not and “should not be used for judicial discipline.”4 We encourage EOIR to abandon its myopic focus on numerical metrics and instead institute a judicial performance evaluation based on these models.

4https://www.americanbar.org/content/dam/aba/publications/judicial_division/aba_blackletterguidelines_jpe.authcheckdam.pdf.

Continued enhancement of resources will be an exercise in futility and will fail to reduce the crippling backlogs plaguing the Immigration Courts if the integrity and independence of the Immigration Judge decision-making authority is not protected. Without much needed protection, the inevitable increase in individual and class action litigation and the circuit court backlash (similar to the “streamlining” era) is virtually certain to ensue.

⦁ Additional Resources

NAIJ appreciates the additional judges and staff that Congress has provided and the recent allocation of an additional 100 Immigration Judge teams in the appropriations bill. This is a welcome move in the right direction. However we would be remiss if we failed to point out that even if all the appropriated judge positions are filled promptly (which is a task the DOJ has been unable to accomplish for decades), the pressing crisis of the backlog will not be resolved. The backlog of pending cases has almost quadrupled in the last twelve years. Yet, the number of judges has not even doubled (even with the inclusion of the recently allocated 100 judges). Thus, it is not unreasonable to conclude that with the continued flood of cases being filed with the Court due to increased law enforcement action, the need to match that rate of increased resources with the Courts is a necessary condition of addressing the challenge of the backlog.

Moreover, the Courts are woefully behind the times in technology. The Courts’ computer systems and printers are outdated. The software programs are several generations behind and lag in processing speed. Also, we depend on digital audio recording to capture our hearing audio in lieu of in-person transcribers, and in many locations we function with heavy reliance on tele video equipment. Yet these technologies are no longer state of the art, causing not infrequent 12

delay and malfunctions. We have yet to arrive in the 21st century in technology at EOIR. Unlike other courts who have embraced electronic filings and records, we are still under the weight of hardcopy files, some of which can weigh up to 10 to 15 pounds per case. Increasingly adequate space for Court locations has become an issue, leaving many Courts bursting at the seams due to thousands of files, with staff having to share cubicles, and cramped, unhealthy and unsafe spaces that were never intended to be used as work space.

ENDURING SOLUTION

⦁ An Article I Immigration Court is the Clear Consensus Solution that is Urgently Needed

While it cannot be denied that the short term solutions cited above are needed immediately, Band-Aid solutions alone cannot solve the persistent problems facing our Immigration Courts. The problems compromising the integrity and proper administration of a court highlighted above underscore the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. The DOJ has been provided years of opportunity to forestall the impending implosion at the Immigration Courts. Instead of finding long term solutions to our problems, DOJ’s political priorities and law enforcement instincts have led our Courts to the brink of collapse. With the latest misguided initiative to impose Immigration Judge production quotas and deadlines, DOJ has put accelerant on the fire; if these changes are implemented the integrity of the Immigration Court will be all but destroyed and paralyzing dysfunction will ensue.

Since the 1981 Select Commission on Immigration and Refugee Policy, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced. Such a structure solves a myriad of problems which now plague our Court: removing a politically accountable Cabinet level policy maker from the helm; separating the decision makers from the parties who appear before them; protecting judges from the cronyism of a too close association with DHS; assuring a transparent funding stream instead of items buried in the budget of a larger Agency with competing needs; and eliminating top-heavy Agency bureaucracy. In the last 35 years, a strong consensus has formed supporting this structural change. For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now most immigration judges and attorneys agree the long-term solution to the problem is to restructure the immigration court system. Examples of those in support include the American Bar Association, the Federal Bar Association, the National Association of Women Judges, and the American Immigration Lawyers Association. These are the recognized legal experts and representatives of the public who appear before us. Their voices deserve to be heeded.

To that end, the Federal Bar Association has prepared proposed legislation setting forth the blueprint for the creation of an “Article 1” or independent Immigration Court. This proposal will remove the Immigration Court from the purview of the DOJ to form an independent Court. The legislation would establish a “United States Immigration Court” with responsibility for functions 13

of an adjudicative nature that are currently being performed by the judges and Board members in the Executive Office for Immigration Review. The new court would consist of appellate and trial level judges. The appellate judges would be appointed by the President and confirmed by the Senate, and the immigration trial judges would be appointed by the appellate judges. The substantive law of immigration and corresponding enforcement and policy-determining responsibilities of the DHS and DOJ under the INA would be unchanged. Final decisions of the new court would be subject to review in the circuit court of appeals similar to the current model. However, in the new court, the Department of Homeland Security would be able to seek review of the court’s decisions to the same extent as the individuals against whom charges were filed. Practically, the transition to the new “United States Immigration Court” would involve minimal transitional or financial challenges as much of the physical structures and personnel would already be in place.

NAIJ has endorsed this bill5 and urges you to take immediate steps to protect judicial independence and efficient resolution of cases at the Immigration Courts by enacting legislation as described above. Failure to act will result in irreparable harm to the immigration law community as we know it. Action is needed now!

5 https://www.naij-usa.org/images/uploads/publications/NAIJ_endorses_FBA_Article_I_proposal_3-15-18.pdf

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Here are links to the other statements submitted to the Senate Judiciary Committee, all well worth a read:

Other Statements:

Law Professor Statement: Immigration Law Professors Issue Statement on Strengthening and Reforming America’s Immigration Court System
AILA National Statement: AILA Statement on Strengthening and Reforming America’s Immigration Court System Hearing

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It’s no secret that White Nationalist and “21st Century Jim Crow” Sessions was totally unqualified to be the Attorney General of the United States. Yet, the GOP Senate put in him that position knowing full his extremist views, lack of executive qualifications, and history of racially insensitive words and actions.

The Obama Administration’s indolent, sometimes disingenuous, and often highly politicized mis-handling of the Immigration Court System also contributed to the current sad state of justice for immigrants. To paraphrase the words of one of my colleagues, the Obama Administration’s poor handling of the Immigration Courts didn’t cause Jeff Sessions and his toxic policies, but it certainly did nothing to dissuade or prevent them and in many ways set the stage for the current due process disaster.

Congress also stood by and watched this unfolding disaster in a court system they created without providing any effective assistance (except for too few additional positions too late to help) and in many cases making things worse by ramping up enforcement without thinking about the consequences for the judicial system.

We need to elect legislators pledged to due process, fairness to all including immigrants, strong effective oversight of the DOJ, investigation of Sessions’s blatant attempt to “deconstruct” the U.S. justice system (particularly as it applies to immigrants and vulnerable minorities) which should eventually lead to his removal from office, and the transfer of the U.S. Immigration Courts out of the DOJ into an independent structure where they never again can be compromised by the likes of Jeff Sessions.

Join the New Due Process Army and fight to give real meaning to the Constitutional guarantee of Due Process for all in America.

PWS

04-19-18

WASHPOST: SEN DIANNE FEINSTEIN (D-CA) HITS A “HOME RUN” WITH OP-ED — NO, RIGHTS OF CHILD ASYLUM SEEKERS ARE NOT “LOOPHOLES” IN OUR IMMIGRATION LAWS! — What’s Happened To Our Common Sense & Humanity?

https://www.washingtonpost.com/opinions/protecting-defenseless-children-is-not-an-immigration-loophole/2018/04/13/11bf9012-3e64-11e8-a7d1-e4efec6389f0_story.html?utm_term=.8c9ed9210908

Sen. Feinstein writes:

Dianne Feinstein, a Democrat, represents California in the U.S. Senate.

I remember watching the nightly television news in the 1990s and seeing a 15-year-old Chinese girl trembling before a U.S. immigration judge. Despite having committed no crime, she was shackled and sobbing. She couldn’t speak English, and it was clear she had no understanding of what the judge was saying or what would happen to her.

Her parents had sent her to the United States in the cargo hold of a container ship because she had been born in violation of China’s rigid family-planning laws — and was therefore denied citizenship, access to health care and education.

By the time the girl appeared before the immigration judge, she had already been detained for eight months. Even more shocking: After she was granted political asylum, she was detained for four more months before she was released.

This situation would not be allowed to occur today because Congress has enacted laws to provide basic humanitarian protections to unaccompanied immigrant children.

The Trump administration recently reignited its attacks on these protections, with the president going so far as to call laws that protect helpless children “loopholes.”

The administration says these laws prevent immigrant children from being removed from the country, when in fact the goal is to ensure that these children are detained for as little time as possible and only in an appropriate setting, they receive adequate food and water, and that they are given the opportunity to apply for asylum.

Under these laws, each child has a right to make their case before a trained asylum officer. If the hearing demonstrates the need for protection by admission to the United States, we’re obligated to provide it. And in cases where a child does not qualify for asylum or other forms of relief, they’re returned safely to their home country.

I know the intent of these laws because I authored two of them. They are not loopholes.

It’s important to understand why Congress acted to thus ensure basic human dignity for children.

The story of the Chinese girl I saw on television was not unique — mistreatment of child immigrants was widespread. Another young girl who fled China was detained in a facility that also held minors who had been convicted of murder and rape. Despite never having violated criminal law or been accused of a crime, she was routinely handcuffed and strip-searched.

A young boy who fled Colombia after being targeted for recruitment by Revolutionary Armed Forces of Colombia guerrillas was held in the same detention facility for six months.

Children as young as 4 were held in secure prisons, isolated and forced to wear prison uniforms and shackles. Some were even placed in solitary confinement, even though they weren’t accused of any crime.

These stories, which were detailed by Human Rights Watch, illustrate decades of government mistreatment of children, and they were the genesis of laws Congress passed to guarantee minimum requirements for treating children humanely.

A key first step toward reform came in 1997, after years of litigation over treatment of unaccompanied minors, with a settlement called the Flores agreement. Among its provisions were requirements that the government release detained children to an adult as soon as possible, hold children who can’t be released in appropriate facilities and ensure that all facilities meet humane standard

Three years later, I introduced the Unaccompanied Alien Child Protection Act and was able to get portions of the bill included in the Homeland Security Act of 2002 and the Trafficking Victims Protection Reauthorization Act of 2008.

The two laws, combined with the Flores agreement, are intended to ensure children don’t fall through the cracks of a system that processes thousands of them each year.

They require that children under 18 be placed in the least restrictive setting that is in their best interests. Rather than holding children in detention facilities that also hold adults or criminal juvenile offenders, preference is given to releasing them to family members or appropriate sponsors, such as a family friend.

Such placements ensure that children aren’t held in indefinite detention pending resolution of their cases, which can sometimes take years. They also mean that taxpayers aren’t paying for that detention.

These aren’t loopholes, they are basic principles of common human decency. And to demonize and politicize these children is appalling.

Contrary to the picture painted by this administration, current policies don’t guarantee a child will be able to remain in the United States. Nor do these policies mean dangerous individuals are being released onto our streets.

The Trump administration’s efforts to repeal protections for children are based on an ignorance of history. The only effect of repeal would be more children held in unsafe conditions at exorbitant costs to the taxpayer.

I will oppose any efforts to change these laws, and I call upon my colleagues in Congress to join me in resisting efforts to roll back protections for immigrant children.

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Of all the depraved xenophobic, White Nationalist, racist ravings of Trump, Sessions, Homan, Neilsen, Kelly, Miller, Goodlatte, Cotton, and other GOP restrictionists, the war on defenseless children has to be the most totally despicable! Most of these kids are fleeing genuine dangers in their home countries. The real problem is that the US has intentionally, for political reasons, twisted refugee law so as to not recognize their legitimate status as refugees and asylees.

As someone said at an Asylum Conference I recently attended, the BIA must be the only 15 so-called “asylum experts” in the world who don’t recognize that those fleeing gang recruitment in the Northern Triangle fit squarely within the “particular social group” classification for asylum protection.

Even if they weren’t a direct fit, these children qualify for relief under the Convention Against Torture or should be given another type of humanitarian relief such as TPS or Deferred Enforced Departure. Screening them for background and rapidly admitting them into the U.S. in some status would prevent them from becoming part of the current politically created Immigration Court “backlog,” actually caused primarily by gross mismanagement, intentionally skewed anti-asylum legal interpretations, and political manipulation by this and past Administrations.

Of course the US could absorb them all, and prosper by doing so! Indeed, we’ve absorbed approximately 11 million individuals outside the system who have largely been a boon to our economy and our society. The real problem here is the White Nationalists who deny the reality of human migration and the inevitability of changing demographics, not the migrants themselves.

PWS

04-14-18

GONZO’S WORLD: Scofflaw Sessions Rapped Again For Violating Constitution On His “Sanctuary Cities” Nonsense! — “But there is no evidence of record, and Defendants do not argue, that Defendants based this conclusion on any findings or data. Therefore, the Court cannot conclude that Defendants had a “reasonable basis” for imposing the Challenged Considerations.”

https://www.nytimes.com/2018/04/12/us/justice-department-police-immigration-california.html?smprod=nytcore-ipad&smid=nytcore-ipad-share

Jennifer Medina reports for the NY Times:

LOS ANGELES — The Justice Department cannot require that local police departments help immigration agents in order to receive federal funding, a federal judge has ruled. The ruling is a significant victory for local governments that have opposed the Trump administration’s stance on immigration and vowed to stay out of enforcement efforts.

United States District Judge Manuel Real in Los Angeles issued a permanent, national injunction against the federal funding rules, giving the city an important win in a long-running legal battle with Attorney General Jeff Sessions and the White House.

The ruling is “a complete victory,” Mike Feuer, the Los Angeles city attorney, said Thursday. “This is yet another dagger in the heart of the administration’s efforts to use federal funds as a weapon to make local jurisdictions complicit in its civil immigration enforcement policies.”

A Justice Department spokesman, Devin M. O’Malley, suggested an appeal was likely.

The federal government is legally entitled to give priority in its grant funding to local governments “that prioritize the safety of their communities and their law enforcement officers when they promise to cooperate with federal immigration authorities seeking information about illegal aliens who have committed crimes,” he said in a statement.

“Unfortunately,” he added, “the court not only rejected this common-sense conclusion, but it chose to issue a permanent nationwide injunction that is overbroad and inconsistent with the rule of law. We look forward to continuing the strong defense of our position.”

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Los Angeles has received millions of dollars under a federal program to promote community policing.CreditMonica Almeida/The New York Times

The ruling handed down Wednesday came in one of several lawsuitsthat state and city officials in California have filed against the federal government arguing that it has overreached in trying to force local officers to help with immigration enforcement.

“The Trump administration cannot manipulate federal grant fund requirements to pressure states, counties or municipalities to enforce federal immigration laws,” Xavier Becerra, California’s attorney general, said last year when the state filed a lawsuit against the administration for denying funding to so-called sanctuary cities.

Last month, a federal district judge declined to issue a preliminary injunction against the federal government in that case, saying that the courts in other parts of the country had reached different conclusions and that “issues in this case will benefit from further development.”

After that ruling, the Trump administration filed its own lawsuit against California over its own “sanctuary state” law, which prevents the police in many cases from holding people at the request of federal immigration agents, and limits the sharing of information about the release of some county jail inmates who are in the country illegally. In its suit, the federal government argues that the law makes it impossible for immigration officers to do their jobs. A hearing in the case is scheduled for late June.

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Read the complete article at the link.

The losses just keep piling up for Gonzo & Co. And, not surprisingly, the inability of Gonzo to provide anything approaching a rational basis for his actions is a continuing problem.

He’s a guy whose career has been based on bias and racism. And, when that’s the only unstated rationale for a program, many Federal Courts are seeing right through the ruse. No, terrorizing communities and destroying relationships that have taken decades or more to build is not about effective law enforcement! It’s all about racism and bias.

Here’s a link to Judge Real’s decision in City of Los Angeles v. Sessions

https-ecf-cacd-uscourts-gov-doc1-031127943445

PWS

04-14-18

Mary Meg McCarthy, Executive Director, National Immigrant Justice Center Speaks Out On Gonzo’s Attack On The Legal Orientation Program & America’s Most Vulnerable

Department of Justice Program Defunds Legal Orientation and Help Desk Programs for 53,000 Immigrants Per Year, Violating Congressional Requirements and Undermining Efforts to Reduce Immigration Court Backlogs

Statement of Mary Meg McCarthy, Executive Director, National Immigrant Justice Center

Today the National Immigrant Justice Center (NIJC) and immigration legal service providers across the country received the alarming news that the Department of Justice (DOJ) plans to terminate the Legal Orientation Program (LOP) and the Immigration Court Helpdesk program. LOP is a life line for the more than 40,000 immigrants who face complex deportation proceedings from remote detention facilities every day. Through LOP, legal service organizations provide basic information to men and women in immigration jails about the detention and deportation process. The goals of the bipartisan program are to improve judicial efficiency and help immigrants in detention without attorneys navigate the immigration court process. Today, LOP services reach 40 detention facilities and over 50,000 detained people in desperate need of legal services.

Terminating the LOP and help desk programs is an affront to Congress. The report language accompanying the 2018 omnibus spending bill explicitly required the Executive Office for Immigration Review to “continue ongoing programs,” adopted language in the House Report providing that funding “sustains the current legal orientation program and related assistance, such as the information desk pilot,” and adopted language in the Senate Report noting the need for expanded LOP services in remote immigration facilities.

Terminating the LOP and help desk program is a deliberate attempt to eliminate due process from the deportation process. News of the legal orientation program termination comes when the administration is forcing unreasonable quotas on immigration judges to accelerate adjudications in the massively backlogged court system, and also pursuing a policy of mass prolonged detention at the border. This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due process rights. Because more than four out of every five detained immigrants are unable to access legal representation, LOP staff are quite literally the last and only line of defense for detained individuals trying to understand how to represent themselves in their claims to asylum and other forms of protection in immigration court.

Terminating the LOP program is an act of flagrant fiscal irresponsibility. A 2012 DOJ study found that detained immigrants who received legal orientation completed their court proceedings more quickly and remained detained for an average of six fewer days, yielding the government a net savings of more than $17.8 million per year.

NIJC calls on Congress to oppose the administration’s affront to due process by taking any and all steps possible to ensure that DOJ complies with its congressional directives and maintains the LOP and help desk programs as they currently exist.

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This is no real surprise, given the overt White Nationalist restrictionist agenda of Trump, Sessions, and their cronies. This isn’t driven by false “fiscal economy.” It’s driven by an agenda biased against immigrants, Latinos, and asylum seekers. Facts and truth are irrelevant when dealing with folks like Trump and Gonzo.

Scott Pruitt wastes taxpayer money left and right, as does Trump. Meanwhile, worthy, essential Government programs like the LOP are being “zero funded.” It’s totally outrageous!

While Gonzo hasn’t achieved the degree of personal greed-based corruption that some other Administration officials have, he makes up for it by grossly misusing the resources of the Department of Justice to decrease justice, fairness, and Due Process in America. It’s mind-boggling how we could end up with an anti-American, xenophobic, racist as Attorney General nearly two decades into the 21st Century. But, it’s happened. Yet, Sessions is for real and he’s recreating the “Jim Crow of his youth” in today’s America.

Due Process Forever. Jeff Sessions Never!

PWS

04-12-18

DIANNE SOLIS @ DALLAS MORNING NEWS DETAILS GONZO’S ALL-OUT ASSAULT ON INDEPENDENCE OF U.S.IMMIGRATION JUDGES AND DUE PROCESS IN OUR IMMIGRATION COURTS –“Due process isn’t making widgets,” Schmidt said. “Compare this to what happens in regular courts. No other court system operates this way. Yet the issues in immigration court are life and death,” he said, referring to asylum cases.”

https://www.dallasnews.com/news/immigration/2018/04/10/immigration-judges-attorneys-worry-sessions-quotas-will-cut-justice-clogged-court-system

Dianne writes:

“A case takes nearly 900 days to make its way through the backlogged immigration courts of Texas. The national average is about 700 days in a system sagging with nearly 700,000 cases.

A new edict from President Donald Trump’s administration orders judges of the immigration courts to speed it up.

Now the pushback begins.

Quotas planned for the nation’s 334 immigration judges will just make the backlog worse by increasing appeals and questions about due process, says Ashley Tabaddor, Los Angeles-based president of the National Association of Immigration Judges.

Quotas of 700 cases a year, first reported by The Wall Street Journal, were laid out in a performance plan memo by U.S. Attorney General Jeff Sessions. They go into effect October 1.

Some have even called the slowdown from the backlog “de facto amnesty.”

“We believe it is absolutely inconsistent to apply quotas and deadlines on judges who are supposed to exercise independent decision-making authority,” Tabaddor said.

“The parties that appear before the courts will be wondering if the judge is issuing the decision because she is trying to meet a deadline or quota or is she really applying her impartial adjudicative powers,” she added.

. . . .

Faster decision-making could cut the backlog, but it also has many worried about fairness.

The pressure for speed means immigrants would have to move quickly to find an attorney. Without an attorney, the likelihood of deportation increases. Nationally, about 58 percent of immigrants are represented by attorneys, according to Syracuse’s research center. But in Texas, only about a third of the immigrants have legal representation.

Paul Schmidt, a retired immigration judge who served as chairman of the Board of Immigration Appeals for immigration courts for six years, says he saw decisions rendered quickly and without proper legal analysis, leaving it necessary for many cases to be sent back to the immigration court for what he called “a redo.”

“Due process isn’t making widgets,” Schmidt said. “Compare this to what happens in regular courts. No other court system operates this way. Yet the issues in immigration court are life and death,” he said, referring to asylum cases.

Schmidt said there are good judges who take time with cases, which is often needed in asylum pleas from immigrants from countries at war or known for persecution of certain groups.

But he also said there were “some not-very-good judges” with high productivity.

Ramping up the production line, Schmidt said, will waste time.

“You will end up with more do-overs. Some people are going to be railroaded out of the country without fairness and due process,” Schmidt said.

. . . .

“It doesn’t make any sense to squeeze them,” said Huyen Pham, a professor at Texas A&M University School of Law in Fort Worth. “When you see a lot more enforcement, it means the immigration court will see a lot more people coming through.”

Lawyers and law school professors say the faster pace of deportation proceedings by the U.S. Immigration and Customs Enforcement spells more trouble ahead. Immigration courts don’t have electronic filing processes for most of the system. Many judges must share the same clerk.

For decades, the nation’s immigration courts have served as a lynchpin in a complex system now under intense scrutiny. Immigration has become a signature issue for the Trump administration.

Five years ago, the backlog was about 344,000 cases — about half today’s amount. It grew, in part, with a rise in Central Americans coming across the border in the past few years. Most were given the opportunity to argue before an immigration judge about why they should stay in the U.S.

This isn’t the first time the judges have faced an administration that wants them to change priorities. President Barack Obama ordered that the cases of Central American unaccompanied children to be moved to the top of docket.

“Our dockets have been used as a political tool regardless of which administration is in power and this constant docket reshuffling, constant reprioritization of cases has only increased the backlog,” Tabaddor said.

The quota edict was followed by a memo to federal prosecutors in the criminal courts with jurisdiction over border areas to issue more misdemeanor charges against immigrants entering the country unlawfully. Sessions’ memo instructs prosecutors “to the extent practicable” to issue the misdemeanor charges for improper entry. On Wednesday, Sessions is scheduled to be in Las Cruces, New Mexico, to speak on immigration enforcement at a border sheriffs’ meeting.

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Judge Ashley Tabaddor, President of the National Association of Immigration Judges (“NAIJ” — for the record, I’m a retired member of the NAIJ) hits the nail on the head. This is about denying immigrants their statutory and Constitutional rights while the Administration engages in “Aimless Docket Reshuffling” (“ADR”) an egregious political abuse that I have been railing against ever since I retired in 2016.

Judge Tabaddor’s words are worth repeating:

“Our dockets have been used as a political tool regardless of which administration is in power and this constant docket reshuffling, constant reprioritization of cases has only increased the backlog,” Tabaddor said.

In plain terms this is fraud, waste, and abuse that Sessions and the DOJ are attempting to “cover up” by dishonestly attempting to “shift the blame” to immigrants, attorneys, and Immigration Judges who in fact are the victims of Session’s unethical behavior. If judges “pedaling faster” were the solution to the backlog (which it isn’t) that would mean that the current backlog was caused by Immigration Judges not working very hard, combined with attorneys and immigrants manipulating the system. Sessions has made various versions of this totally bogus claim to cover up his own “malicious incompetence.”

Indeed, by stripping Immigration Judges of authority effectively to manage their dockets; encouraging mindless enforcement by DHS; terminating DACA without any real basis; insulting and making life more difficult for attorneys trying to do their jobs of representing respondents; attacking legal assistance programs for unrepresented migrants; opening more “kangaroo courts” in locations where immigrants are abused in detention to get them to abandon their claims for relief; threatening established forms of protection (which in fact could be used to grant more cases at the Asylum Office and by stipulation — a much more sane and legal way of reducing dockets); canceling “ready to hear” cases that then are then “orbited” to the end of the docket to send Immigration Judges to detention courts where the judges sometimes did not have enough to do and the cases often weren’t ready for fair hearings; denying Immigration Judges the out of court time necessary to properly prepare cases and write decisions; and failing to emphasize the importance of quality and due process in appellate decision-making at the BIA, Sessions is contributing to and accelerating the breakdown of justice and due process in the U.S. Immigration Courts.

PWS

04-11-18

GONZO’S WORLD: LATEST DUE PROCESS OUTRAGE: ATTACK ON LEGAL RIGHTS PROGRAM IN IMMIGRATION COURT — Dumping On The Most Vulnerable & Those Trying To Help Them Is A Gonzo Specialty! — “This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, one of the organizations that offers the legal services with Vera.

https://www.washingtonpost.com/local/immigration/justice-dept-to-halt-legal-advice-program-for-immigrants-in-detention/2018/04/10/40b668aa-3cfc-11e8-974f-aacd97698cef_story.html?utm_term=.c604b3ff4532

Maria Sacchetti reports for the Washington Post:

The U.S. immigration courts will temporarily halt a program that offers legal assistance to detained foreign nationals facing deportation while it audits the program’s cost-effectiveness, a federal official said Tuesday.

Officials informed the Vera Institute of Justice that starting this month it will pause the nonprofit’s Legal Orientation Program, which last year held information sessions for 53,000 immigrants in more than a dozen states, including California and Texas.

The federal government will also evaluate Vera’s “help desk,” which offers tips to non-detained immigrants facing deportation proceedings in the Chicago, Miami, New York, Los Angeles and San Antonio courts.

The Executive Office for Immigration Review, which runs the Justice Department’s immigration courts, said the government wants to “conduct efficiency reviews which have not taken place in six years.” An immigration court official, who spoke on the condition of anonymity because the audit has not been formally announced, said the review will examine the cost-effectiveness of the federally funded programs and whether they duplicate efforts within the court system. He noted, for example, that immigration judges are already required to inform immigrants of their rights before a hearing, including their right to find a lawyer at their own expense.

But advocates said the programs administered by Vera and a network of 18 other nonprofits are a legal lifeline for undocumented immigrants.

“This is a blatant attempt by the administration to strip detained immigrants of even the pretense of due-process rights,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, one of the organizations that offers the legal services with Vera.

In a statement, the Vera Institute said a 2012 study by the Justice Department concluded that the program was “a cost-effective and efficient way to promote due process” that saved the government nearly $18 million over one year.

The Trump administration has also clashed with the Vera Institute over whether its subcontractors were informing undocumented immigrant girls in Department of Health and Human Services custody about their right to an abortion. The issue was later resolved.

The Justice Department is ramping up efforts to cut an immigration court backlog of 650,000 cases in half by 2020. Attorney General Jeff Sessions last week imposed production quotas on immigration judges to spur them to clear cases more quickly.

Immigration courts are separate from U.S. criminal courts, where defendants are entitled to a government-appointed lawyer if they cannot pay for their own legal counsel.

The Vera Institute said approximately 8 in 10 detainees in immigration court face a government prosecutor without a lawyer.

The Executive Office for Immigration Review says on its website that it launched the legal-aid program in 2003, during the administration of George W. Bush, to orient immigrants so that court proceedings would move more quickly.

In Vera’s Legal Orientation Program, lawyers and others hold hour-long group information sessions with detainees to explain their rights, how the court process works and their possible defenses to deportation in federal law, such as seeking asylum if they are in fear for their lives. They also meet with detainees individually and refer detainees to free or low-cost lawyers, but do not represent them in court.

“Experience has shown that the LOP has had positive effects on the immigration court process: detained individuals make wiser, more informed, decisions and are more likely to obtain representation; non-profit organizations reach a wider audience of people with minimal resources; and, cases are more likely to be completed faster, resulting in fewer court hearings and less time spent in detention,” the agency’s website says.

The help desk answers questions and provides similar information to immigrants who are not detained but are facing deportation.

Maria Sacchetti covers immigration for The Washington Post. She previously reported for the Boston Globe.

Follow @mariasacchetti

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The idea expressed by an “anonymous” DOJ official that the brief, often rote “in court” warnings given by Immigration Judges in open court can take the place of a “Know Your Rights” session being conducted in advance, out of court by Vera is preposterous. The “average” initial hearing or “Master Calendar” takes fewer than 10 minutes. My former Arlington Immigration Court colleague Judge Lawrence O. Burman was once “clocked” by a reporter at seven minutes per case, and he is probably more thorough than most Immigration Judges. Moreover, with Immigration Judges being pressured to churn out more final orders of removal faster, required warnings are just one of the aspects of Due Process that are likely to be truncated as Sessions’s “haste makes waste” initiative continues to destroy even the appearance of justice in our U.S. Immigration Courts.

In other words this totally bogus “audit” couldn’t come at a worse time for the beleaguered Immigration Judges of the U.S. Immigration Courts and particularly the often defenseless immigrants who come before them seeking (but far too often not finding) the justice supposedly “guaranteed” to them by our Constitution.

In my long experience, “Know Your Rights” presentations, which often allowed individuals to assess their cases and retain lawyers before their first Immigration Court appearance were one of the best “bang for the buck” programs ever undertaken by EOIR. Immigration Judges relied heavily on them to “keep the line moving” without denying due process.

Sessions methodically is stripping U.S. Immigration Judges of the tools that allow them to do their jobs fairly and efficiently: administrative closing, continuances, ability to control their own court schedules, time and resources to do research and write opinions, and now the assistance of the “Know Your Rights” Programs.

Harm to the most vulnerable among us is harm to all. Jeff “Gonzo Apocalypto” Sessions is a coward who consistently uses bogus narratives and specious reasons to pick on the most vulnerable in our legal system. Join the New Due Process Army and stand up to Gonzo and his anti-American, anti-Constitutional, anti-human agenda! Today, Gonzo is eliminating immigrants’ rights. Tomorrow it will be YOUR RIGHTS. Who will stand up for YOU if you remain silent while the weak and dispossessed are attacked by Gonzo and his ilk!

PWS

04-11-18

DON’T BELIEVE ANY OF THE “CROCODILE TEARS” BEING SHED BY TRUMP & HIS ADMINISTRATION ABOUT THE LATEST ASSAD ATROCITY IN SYRIA – THE ADMINISTRATION’S INHUMANE POLICIES HELP KILL SYRIAN REFUGEES IN AND OUT OF CAMPS ON A REGULAR BASIS – Bombs & Bluster Will Never Replace Humanitarian Assistance & Robust Refugee Resettlement

https://www.motherjones.com/politics/2018/01/there-are-more-than-5-million-syrian-refugees-the-trump-administration-has-admitted-2-of-them/

There Are More Than 5 Million Syrian Refugees. The Trump Administration Has Admitted 2 of Them.

State Department data shows that many nations’ refugees are still effectively banned.

NOAH LANARDJAN. 29, 2018 2:21 PM

Women from Syria walk with their children in a refugee camp in Cyprus in September.Petros Karadjias/AP

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The United Nations estimates that there are 5.5 million Syrian refugees. In the past three months, the United States has allowed two of them to enter the country—down from about 3,600 in the last three months of the Obama administration.

After kicking off his presidency by temporarily banning refugees, Donald Trump lifted the ban in late October. But at the same time, he increased scrutiny of refugees from 11 countries, requiring that they be admitted only if doing so fulfills “critical foreign policy interests.” Refugee advocates said that the language would effectively ban refugees from a group of mostly Muslim-majority nations. Data from the State Department’s Refugee Processing Center reviewed by Mother Jones confirms their prediction.

The United States has taken in 44 refugees from the targeted countries since Trump issued his executive order, compared to about 12,000 during the same period last year. The countries are Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen.

The heightened vetting of people from those countries has driven down the total number of Muslim refugees coming to the United States. About 550 Muslim refugees have been admitted to the United States since the executive order. More than 11,000 arrived during the same period last year. The share of admitted refugees who are Muslim has dropped from 48 percent at the end of the Obama administration to 11 percent in recent months.

Under Trump’s October executive order, the Department of Homeland Security (DHS) would conduct a 90-day “in-depth threat assessment of each [targeted] country.” During that period, DHS said in a memo to Trump, it would only take refugees from the 11 countries “whose admission is deemed to be in the national interest and poses no threat to the security or welfare of the United States.”

The 90-day mark passed last week. But Sean Piazza, a spokesman for the International Rescue Committee (IRC), a refugee resettlement agency, says the organization has not received any updates about the status of the temporary review now that the 90-day period has passed. It is unclear if it is still in effect, and DHS did not respond to a request for comment. DHS’ October memo stated that refugee admissions from the targeted countries are likely to “occur at a slower pace” beyond the 90-day deadline.

The Trump administration has tried to undermine support for accepting refugees by casting them as an economic burden. In September, the New York Times reported that White House officials had killed a draft report from the Department of Health and Human Services that found that refugees have increased government revenue by $63 billion over the past decade. The report that was ultimately published had a different calculus, documenting how much it costs to provide services to refugees but not how much they pay in taxes.

Overall, the United States in on track to resettle about 21,000 refugees this year, according to the IRC. That would be fewer than in any year since at least 1980—including 2002, when refugee admissions plummeted in the wake of 9/11. It is also less than half of the annual 45,000-refugee cap that the Trump administration set in September, which was the lowest cap ever. Historically, the United States has been considered a world leader in resettling refugees.

Before Trump assumed the presidency, it already took up to two years for refugees to be vetted and resettled, not including the time people spent fleeing their country for refugee camps. Henrike Dessaules, the communications director at the International Refugee Assistance Project, says the group has had clients who “were ready to travel, that had their medical checks, security checks, and interviews done.” Instead, “they have been completely stalled in the process,” she says.*

In 2016, the Obama administration placed its refugee limit at 85,000 people and used all but five of those slots. This year’s drop comes even though there were about 22.5 million refugees across the world in 2016, more than at any time since the United Nations’ refugee agency was founded in 1950.

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https://www.cnn.com/2018/02/06/middleeast/syria-refugees-lebanon-winter-intl/index.html

Syrian refugees escape the war, but die from the cold

Refugees freeze to death in Lebanon 02:48

Editor’s Note: This story contains extremely graphic images of dead and wounded people.

Bekaa Valley, Lebanon (CNN) — The rocky, plowed hillside is scattered with clues of what happened that January night. A woman’s scarf. A diaper. Empty cans of tuna fish. A plastic bag of sugar. An empty box of Turkish chocolate biscuits. A single cheap Syrian-made woman’s shoe. Several white, mud-spattered rubber gloves.

It was here, last month, that 17 Syrians froze to death in a night-time snowstorm while trying to cross the mountains into Lebanon.

Three-year-old Sarah is one of the few who survived. She now lies in a bed in the Bekaa Hospital in nearby Zahleh, two intravenous tubes taped to her small right arm. Frostbite left a large dark scab on her forehead. A thick bandage covers her right cheek. Another bandage is wound around her head to cover her frostbitten right ear.

Sarah doesn’t speak. She doesn’t make a sound. Her brown eyes dart around the room — curious, perhaps confused. Her father, Mishaan al Abed, sits by her bed, trying to distract her with his cell phone.

Sarah, 3, suffers from frostbite after smugglers abandoned her and her family as they were crossing into Lebanon.

No one has told Sarah that her mother Manal, her five-year-old sister Hiba, her grandmother, her aunt and two cousins died on the mountain.

“Sometimes she says, ‘I want to eat.’ That’s all,” Abed says. Sarah hasn’t mentioned anything about her ordeal, and he is hesitant to ask her.

An unfortunate reunion

Until now, Sarah hadn’t seen her father for two and a half years. He left Syria for Lebanon and found work as a house painter, leaving his family behind.

Mishaan al Abed sent money back to his wife and kids, who stayed outside the town of Abu Kamal, on the Syrian-Iraqi border.

ISIS controlled Abu Kamal from the summer of 2014 until last November, when it was retaken by Syrian government forces. Fighting still rages in the countryside around it, where Al Abed’s family lived.

Lebanese officials: 14 Syrian refugees found frozen near border

After their house was damaged, Abed’s brother and his family, along with Abed’s wife and two children, fled to Damascus. There they paid $4,000 — a fortune for a poor family — to a Syrian lawyer who they were told had the right connections with the army, intelligence and smugglers.

The plan was for them to be driven to the border in private cars on military-only roads. From there, says Abed, they were to walk with the smugglers for half an hour into Lebanon, where they would be met by other cars.

The plan started to fall apart when snow began to fall. The smugglers abandoned the group. The family lost their way and became separated. In the dark and the cold, most of them died. It’s not clear how Sarah and a few others survived.

The only thing that is clear, says hospital director Dr. Antoine Cortas, is that “it is a miracle Sarah is still alive.”

Hidden by the darkness and the snow was a house just a few hundred steps down the mountain.

In January, a group of Syrians froze to death trying to cross into Lebanon during a snowstorm.

Abed was expecting his family to cross over, but became concerned when he didn’t hear from them. “I was told the army had arrested people trying to cross into Lebanon. I thought it must be them. Then the intelligence services sent me a picture. I identified her as my wife.”

He opens the picture on his cell phone. It shows a lifeless woman curled up on the snow amidst thorn bushes, a red woolen cap on her head.

A struggle to cross over, a struggle to remain

More than a million Syrians have taken refuge in Lebanon, straining the resources of a country with a population of around six million. The Lebanese authorities have, to some extent, turned a blind eye to those entering the country illegally. But they have refused to allow relief groups to establish proper refugee camps, unlike Jordan and Turkey, for fear they will become permanent.

What pass for camps — officially called “informal tented settlements” — are ramshackle affairs. Syrians typically pay $100 to a landowner to build drafty, uninsulated breezeblock shelters with flimsy plastic tarpaulins as roofs.

Abu Farhan, a man in his sixties from Hama, in central Syria, lives in one of those shelters in a muddy camp outside the town of Rait, just a few kilometers from the Syrian border. His wife Fatima is ill. She is huddled next to a kerosene stove under a pile of blankets. Between coughing fits, she moans loudly. Farhan has had to borrow more than two million Lebanese pounds — around $1,300 — for her medical treatment.

Denied proper refugee camps, many Syrian refugees live in informal tented settlements.

Illness is just one of the perils here. Vermin, he says, is another. “There’s everything here,” he chuckles bitterly, “even things I’ve never seen before. Rats. Mice. Everything!”

The dilemma that Syrians in Lebanon face is glaringly clear. They’re not welcome here, and it’s difficult to scrape by. According to a recent report by the Norwegian Refugee Council, 71% of Syrian refugees in Lebanon live in poverty.

Point of no return

Some Syrians have returned home, but many, like Abu Musa, a man in his forties who lives in the same settlement as Farhan, insist that returning would be nothing short of suicidal. He comes from Maarat al-Numan, in Idlib province, where Syrian forces, backed by Russian warplanes, are waging an offensive against government opponents.

“Of course, I’d like to go back to Syria!” Musa exclaims, gesturing around his damp, cold hut as if that were reason enough to return home. “But Syria isn’t safe. They’re fighting in my town. My house has been destroyed.”

And thus, Syrians continue to try to make their way to Lebanon, despite the very real risks.

Over 70% of Lebanon’s 1 million Syrian refugees live in poverty

“The people who are walking across the mountains, and taking days to cross the mountains in the middle of winter, are a testament to the fact that Syria is not safe,” said Mike Bruce of the Norwegian Refugee Council.

“Until Syria is safe, until there is a lasting peace, people should not be going back to Syria.”

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With the election of the staunchly anti-American, White Nationalist, xenophobic, religiously bigoted Trump Administration, the United States forfeited any claim to moral leadership and humanitarianism on the world stage. Our anti-refugee policies also harm our allies in the region by forcing them to bear the entire responsibility for sheltering refugees.

Only the electoral removal of this truly un-American Administration and its GOP fellow travelers from power will allow us to begin the healing process. Selfishness and inhumanity are not policies — they are diseases that will consume us all if we don’t exercise our Constitutional and political rights by voting to remove the toxic leaders spreading them!

PWS

04-10-18

GONZO’S WORLD: There’s Plenty Of Compelling Evidence That Increasing Prosecutions Of Routine Illegal Entry Offenses, Is Inhumane, Inconsistent With Our Protection Laws, Wasteful, And Fails To Act As A Deterrent – So Why Is Gonzo Declaring A “Zero Tolerance” Policy That Is A Proven Failure?

2018-Report-Punishing-Refugees-Migrants

Here’s what a recent study by Human Rights First has to say about increasing criminal prosecutions for illegal entry:

Additionally, there are security and public safety disadvantages associated with prosecuting illegal entry and reentry, as it diverts scarce judicial and prosecutorial resources from addressing more serious crimes. According to Alex Nowrasteh, an immigration expert at the Cato Institute, “every dollar spent on prosecuting an illegal immigrant for illegal reentry is a dollar that could have been spent on prosecuting or investigating a real crime.” Mr. Nowrasteh further explained that resources could be better allocated to violent crimes and property crimes.118

Criminally prosecuting individuals for illegal entry and illegal reentry also appears to be ineffective as a deterrence mechanism—its stated objective.119 In its 2015 report, the OIG concluded that CBP did not have an adequate system in place to measure whether or not Operation Streamline—or related criminal prosecutions— have succeeded in deterring individuals from

migrating to the United States without authorization.120 Similarly, a 2017 U.S. Government Accountability Office (GAO) report found that the way in which border patrol calculates recidivism rates (i.e. effectiveness) for those prosecuted for illegal entry and reentry is inaccurate, as their calculations do not assess an immigrant’s apprehension history beyond one fiscal year.121 According to Retired Brownsville Judge Felix Recio, “prosecutions have no deterrent effect whatsoever. People will just continue crossing.”122

Today, southern border crossers are increasingly coming to the U.S. to seek protection from human rights violations, violence, and other forms of persecution. With many facing life or death

choices, increased enforcement measures such as prosecution, are even less effective in deterrence. Asylum seekers, unaccompanied children, and others seeking protection, make up a group the Institute for Defense Analyses (IDA)— a DHS contractor—calls a “non-impactable population,” and a group which increased from less than two percent of border apprehension in 2003-2009 to over 33 percent in 2016.123According to IDA, these individuals “make no attempt to evade detection, and all […] surrender to the first USBP agent they encounter,” noting that traditional enforcement mechanisms are not effective in deterring this population.

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So here’s what Jeff “Gonzo Apocalypto” Sessions did in response:

Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry

Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General’s zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018—the largest month-to-month increase since 2011.

“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest—that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” said Attorney General Jeff Sessions. “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws—and as a result, our nation—are respected.”

On April 11, 2017, Attorney General Jeff Sessions announced a renewed commitment to criminal immigration enforcement. As part of that announcement, the Attorney General issued a memorandum to all federal prosecutors and directed them to prioritize the prosecution of certain criminal immigration offenses.

Today’s zero-tolerance policy further directs each U.S. Attorney’s Office along the Southwest Border (i.e., Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and the Southern District of Texas) to adopt a policy to prosecute all Department of Homeland Security referrals of section 1325(a) violations, to the extent

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Poor Gonzo! Nobody has worked harder and with more dedication to earn the title of “Worst Government Executive of the 21st Century.” After all, promoting policies of:

Racism
Homophobia
Xenophobia
Denial of statutory and Constitutional rights
Destruction of the US Immigration Court system
Creation of a “New American Gulag”
Abuses of prosecutorial discretion
Providing misinformation to Congress
Suppression of voting rights
Religious intolerance
Interference with state and local law enforcement
Use of false and misleading statistics
Gross waste and mis-deployment of scarce law enforcement resources
Smearing asylum applicants, DACA young people, and immigration lawyers
Targeting the rights of women, children, an other vulnerable groups
Promoting false connections between immigrants and crime
Trying to shift the blame for “Aimless Docket Reshuffling” in the Immigration Courts by the DOJ to the victims of the DOJ’s misconduct — respondents, lawyers, and judges

should earn Gonzo the title hands down. He’d certainly be my first choice!

Yet, because he lives in the Age of Trump, Scott Pruitt, and other flashier more visibly corrupt violators of the law, ethics, and human decency, Gonzo’s truly reprehensible actions as Attorney General sometimes get buried on the “back pages.”

Not to worry, though, Gonzo! Undoubtedly when scholars and political scientists have a chance to reflect on your truly horrible record as Attorney General and combine it with decades on the public payroll without many obvious positive or constructive contributions to speak of, I’m sure that your place in history as one of the worst and most prejudiced public officials of 21st Century America will be assured!

PWS

04-10-18

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PWS

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