Immigration judge talks about how to fix courts

Dana Leigh Marks has been an immigration judge in San Francisco since 1987, and is president emerita of the National Association of Immigration Judges. In the Washington Post, Judge Marks writes about what it’s going to take to fix the overwhelmed immigration legal system:

The volume of work can be overwhelming. Some of our judges carry caseloads of 5,000 cases or more, usually with limited support staff. Because we work for the Justice Department, we are directed how to arrange our dockets and micromanaged about how much time we spend on cases. Beginning in October of last year, judges were ordered to complete 700 cases each year or risk a less-than-satisfactory performance evaluation, which can cost a judge his or her job. This is not how a court should be run. Attorney General William P. Barr told Congress this week that he is hoping to boost the number of judges in our courtrooms from around 425 to 535 over the next few years and for a commensurate boost in lawyers and clerks. We desperately need the help.

Find out more about what it’s going to take to reform the immigration legal process at the Washington Post. 

Will Trump close the Mexico border?

Mexico mapRepublicans from border states and the U.S. Chamber of Commerce are criticizing President Trump’s threat to close the border with Mexico over his belief that Mexico isn’t doing enough to stem the tide of migrants from Central America. USA Today reports that the administration could start shutting down ports of entry this week. Critics point out that Mexico was America’s third-largest trading partner last year and they’re concerned about the effect closing the border would have on the economy. The Philadelphia Inquirer says House Democrats are talking about holding a vote on the border closing later this month to force border state Republicans to take a stand on the administration’s controversial proposal. Politico says Trump plans to visit the border on Friday while GOP members try to guess which move the president will make. 

Lawsuit Demands Government to Disclose Information About Unjust Deportations

ICE agents immigrationThe Trump administration’s immigration enforcement policies have increased immigrants’ vulnerability to swift deportation, making the ability to access safeguard more important than ever. The Board of Immigration Appeals, the highest administrative body for interpreting and applying immigration laws, has refused to disclose critical information about how it implements life-saving mechanisms that would allow these individuals to seek reopening or reconsidering of their immigration cases, and prevent the irreparable harms that can result from deportation.

In response, the American Immigration Council and the Kathryn O. Greenberg Immigration Justice Clinic at Benjamin N. Cardozo School of Law filed a lawsuit yesterday in federal court to compel the Executive Office for Immigration Review and the Department of Justice to release policies, practices, and data that disclose how the BIA interprets mechanisms to reopen or reconsider immigration cases, and legal actions to temporarily prevent deportation of vulnerable individuals.

The lawsuit, filed in the Southern District of New York, challenges the BIA’s failure to disclose information—in response to two Freedom of Information Act requests submitted in July and November 2018— about its policies and practices regarding requests to halt removal while an individual seeks review of an unlawful deportation order. The suit asks the court to produce documents that will provide the public with information on requests to prevent unlawful or unjust deportations, including statistical information on these decisions and guidance on the standards for deciding such requests.

“The BIA’s failure to properly implement these crucial mechanisms for reopening cases and protecting against harm places asylum seekers at risk of serious bodily harm and death,” said Yael Ben Tov, law student intern at the Kathryn O. Greenberg Immigration Justice Clinic at Benjamin N. Cardozo School of Law. “In order to prevent more erroneous deportations, it is critical that the BIA produce these documents so that noncitizens may access their statutory and regulatory rights.”

“The motion to reopen and stay processes exist to protect individuals from irreparable harm as a result of erroneous deportations. Yet by operating in secrecy and opacity, the BIA undermines Congress’ intention and allows this exact population along with many others who have valid claims for relief to be deported, without so much as a glance at the merits of their case,” said Claudia Valenzuela, FOIA staff attorney at the American Immigration Council. “We cannot allow the BIA to continue to shield its practices from public scrutiny.”

“Individuals seeking to avail themselves of their statutory rights, especially those that are pro se, need clear guidance from the BIA on how these mechanisms work,” said Geroline Castillo, law student intern at the Kathryn O. Greenberg Immigration Justice Clinic at Benjamin N. Cardozo School of Law. “Without it, they risk losing their families and communities, even if they have valid claims and can lawfully remain in the United States.”

Since the Trump administration took office in 2017, U.S. Immigration and Customs Enforcement has stepped up arrests, detention, and quick deportation of people residing in vulnerable immigrant communities. Many targeted individuals have lived in the United States for years with the federal government’s permission.

In many cases, these individuals are now afraid to return to their country of origin because of changed circumstances there and hope to reopen their immigration cases to seek protection from persecution. In other cases, individuals can now show that their underlying deportation order was invalid or that they merit some other form of relief. While immigration law provides mechanisms for reopening and reconsidering cases and preventing the irreparable harms that can result from deportation, current EOIR practices often render these protections ineffective and result in unjust deportation of individuals before their cases are even considered by the immigration courts. Many of these deported noncitizens are forced to live in hiding in fear of their lives and often lose touch with their friends, family, and advocates in the United States.

Video: stars support 21 Savage after ICE arrest

ICE agents immigrationStars and social media groups are showing their support for rapper 21 Savage, who was arrested by ICE agents on Sunday. Savage is British, and he overstayed his visa as a youth, USA Today reports. Even feuding rappers Nicki Minaj and Cardi B have united in supporting Savage. Both women came to his defense after conservative activist Tomi Lahren taunted Savage about his arrest.

 CNN has more on Savage’s arrest and the backlash.

Contracted immigration detention centers ignoring serious offenses

immigrant child in custodyContractors running immigrant detention centers aren’t reporting some serious violations such as sexual assaults, and federal immigration officials aren’t watching what they do closely enough, according to an inspector general’s report released by the Department of Homeland Security. HuffPost reports that contractors are failing to reporting serious incidents, including sexual assaults and employee misconduct. The report also says in many cases, Immigration and Customs Enforcement is issuing waivers to contracted detention centers that allow them to skirt the rules. ICE has approved 65 waivers that allow contractors to ignore the requirements included in their contracts with the government, according to the IG report.

Appeals court to decide if immigrant children get court-appointed attorneys

immigrant child in custodyEleven federal appeals court judges have heard testimony in a lawsuit over whether undocumented children have the right to a government-paid lawyer. Lawyers for an immigrant minor who was unrepresented in immigration hearings argue that the Fifth Amendment guarantees the minor the right to an attorney, according to KPIX. 

“We want a ruling that children facing deportation are entitled to legal representation,” said C.J.’s lawyer Ahilan Arulanantham, told reporters after the hearing. Arulanantham, who is Senior Counsel at the ACLU of Southern California, argued the case before the judges.

Cost is an issue. If each of the 102,000 migrant juveniles apprehended near the US-Mexico border were provided an attorney, it would cost more than $276 million, KPIX reports. Meanwhile, the minor plaintiff in the lawsuit is attending high school in Los Angeles while he awaits the panel’s decision, which is expected in 2019.

Asylum claims jump nearly 70% in 2018

migrant familiesDespite the Trump administration’s tougher immigration policies, the Department of Homeland Security says the number of migrants seeking asylum in the US along the border with Mexico went up nearly 70% from 2017 to 2018, according to CNN. You may recall that President Trump signed a proclamation in November preventing migrants who enter the country illegally from seeking asylum. Customs and Border Protection Commissioner Kevin McAleenan says the dramatic increase in asylum-seekers is “straining border security.” He also says Congress needs to “Address these vulnerabilities in our immigration system which continue to negatively impact border security efforts.”

Acting AG Matthew G. Whitaker Lacks Authority to Decide Immigration Case, Say Immigration Groups

The American Immigration Council and other immigrant rights organizations have filed a legal brief that explains why President Donald Trump’s designation of Matthew G. Whitaker as acting attorney general is unlawful. As a result, the brief asserts, Whitaker lacks the authority to decide a critical immigration case.

In November 2018, President Trump appointed Whitaker in an acting position to replace former Attorney General Jeff Sessions as head of the Department of Justice. The amicus (friend of the court) brief argues that Whitaker’s designation is unconstitutional, and therefore, he lacks authority to exercise the powers of the head of the Justice Department. These powers include referring already-decided immigration cases to himself in order to revisit their holdings.

The brief was filed in Matter of Negusie, a case in which Sessions referred to himself the question of whether asylum seekers found to be persecutors may continue to qualify for asylum by showing they acted under coercion or duress. Sessions invoked a federal regulation that allows the attorney general to reconsider cases already decided by the Board of Immigration Appeals—the body that hears appeals from immigration courts nationwide—but he resigned from office before deciding the case.

The brief argues that Whitaker’s designation as acting attorney general violates the Appointments Clause of the Constitution and a specific federal statute governing succession to the Office of the Attorney General. Also outlined in the brief are the critical flaws in the Department of Justice’s Office of Legal Counsel’s opinion that was issued to defend Whitaker’s designation.

“Implicit in the authority granted to the attorney general over immigration cases is the legality of his or her appointment,” said Trina Realmuto, directing attorney at the American Immigration Council. “The improper appointment of the acting attorney general not only is unlawful, but undermines the rule of law that the head of the Justice Department is obligated to uphold.”

“We can add the Appointments Clause to the long and growing list of constitutional protections this president has overrun. The result here is that Mr. Negusie’s fate could be decided by an illegitimate attorney general. It would be a travesty if the U.S. Justice Department, the agency responsible for law enforcement, followed such a lawless path,” said Robert N. Weiner, partner at the law firm of Arnold & Porter.

The amicus brief was authored by the Council and the law firm of Arnold & Porter Kaye Scholer LLP. ASISTA Immigration Assistance, Harvard Immigration and Refugee Clinical Program, Her Justice, Immigrant Defense Project, Northwest Immigrant Rights Project, and Southern Poverty Law Center are signatories to the brief.

You can view the full brief online here.

Appeals court upholds DACA

A federal appeals court has upheld an earlier ruling preventing President Trump from ending Deferred Action for Childhood Arrivals (DACA) program implemented by President Obama. DACA protects young undocumented immigrants born in the United States from being deported. The ruling by the 9th Circuit Court of Appeals means the DACA program can stay in place for now. The Trump administration has already asked the Supreme Court to review the injunction, according to CNN. 

You can read the 9th Circuit’s ruling here. 

Video: The 14th Amendment

ICE agents immigrationPresident Trump’s statement that he can take away the citizenship birthrights guaranteed in the 14th Amendment with an executive order are simply stirring up fear, according to his wife’s immigration attorney. Michael Wildes talked to CNN‘s Jake Tapper about Trump’s threats to deny citizenship to people born in the US.

The 14th Amendment states, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”