Expediting a Case in Immigration Court

by Jason Dzubow

For the last few years, the “hot topic” in asylum has been the backlog–the very long delays caused by too many applicants and too few adjudicators. I recently wrote about the backlog at the Asylum Office and what can be done to expedite a case. One commenter suggested that I write a post about expediting cases in Immigration Court, and since I aim to please, here it is.

Courts are still wrapping up the last of Justice Marshall’s immigration cases.

The first thing to note is that the backlog in Immigration Court is huge. According to recent data, there are over 542,000 cases pending in court (not all of these cases are asylum). The average wait time for a case in Immigration Court is 677 days. The slowest court is Colorado, where wait times average 994 days. That’s a long time, especially if you are separated from family members while your case is pending. For what it’s worth, I have previously written about some ideas for reducing the wait time in Immigration Court (you will be shocked to learn that EOIR has not yet contacted me to implement these ideas!).

Second, advancing a case is not easy. The Immigration Court Practice Manual, page 101, specifically notes that, “Motions to advance are disfavored.” The motion should “completely articulate the reasons for the request and the adverse consequences if the hearing date is not advanced.” Health problems or separation from family may good reasons to advance. I discuss these and other possible reasons here (the post relates to affirmative asylum cases, but the same logic applies).

Third, expediting a case in Immigration Court is not as straightforward as expediting a case at the Asylum Office. There are different approaches that you can take, depending on the posture of your case. For advancing a case (and for the case itself), it is very helpful to have the assistance of an attorney. Indeed, according to TRAC Immigration, 91% of unrepresented asylum applicants in Immigration Court have their cases denied (whether they get other relief, like Withholding of Removal, I do not know). If you can afford a lawyer (or find one for free), it will be to your benefit in expediting and winning your asylum case in court.

OK, before we get to the various approaches for advancing a court case, let’s start with a bit of background. A case commences in Immigration Court when the Notice to Appear–or NTA–is filed with the court. The NTA lists the reasons why the U.S. government believes it can deport (or, in the more bowdlerized parlance of our time, “remove”) someone from the United States. After the court receives the NTA, it schedules the alien for an initial hearing, called a Master Calendar Hearing (“MCH”). At the MCH, the alien–hopefully with the help of an attorney–tells the Immigration Judge (“IJ”) whether the allegations in the NTA are admitted or denied, and whether the alien agrees that he can be deported. In most asylum cases, the alien admits that he is deportable, and then informs the Judge that his defense to deportation is his claim for asylum. The IJ then schedules the alien for a Merits Hearing (also called an Individual Hearing), where the alien can present his application for asylum, and either receive asylum (or some other relief) or be ordered deported from the United States. Depending where in this process your case is, the procedures to expedite vary.

If you have the NTA, but the MCH is not yet scheduled: In some cases, the alien receives an NTA, but then waits many months before the MCH is scheduled. In this case, the delay usually lies with DHS (Department of Homeland Security), which issues the NTAs and files them with the Court, rather than with the Court itself. The Immigration Court has an automated number that you can call to check whether your case is scheduled for a hearing date. The phone number is 1-800-898-7180. Follow the prompts and enter your nine-digit Alien number (also called an “A number”). The system will tell you whether your case is scheduled and the date of the next hearing.

If the system indicates that your “A-number was not found,” this probably means that the NTA has not yet been submitted to the Court. Contact the local DHS/ICE Office of the Chief Counsel and talk to the attorney on duty. Perhaps that person can help get the NTA filed with the Court, so the case can begin.

If your A-number is in the system, but there is no MCH scheduled, contact the Immigration Court directly to ask the clerk for an update. If the Court has the case, it may be possible to file a motion (a formal request) to schedule the case. However, if an IJ is not yet assigned to the case, such a request may disappear into the void once it is filed. Most lawyers (including me) would generally not file a motion until a Judge is assigned, as it is probably a waste of time, but maybe it is possible to try this, if your lawyer is willing.

While you are waiting for the Court to docket your case (i.e., give you a court date), you can gather evidence and complete your affidavit. That way, once the case is on the schedule, you will be ready to file your documents and ask to expedite.

If the MCH is scheduled: Sometimes, MCHs are scheduled months–or even years–in the future. If your case is assigned to an IJ and you have a MCH date, there are a couple options for expediting.

First, you can file a motion to advance the date of the MCH. If the MCH is sooner, the final (Merits) hearing will be sooner as well. Whether the IJ will grant the motion and give you an earlier appointment is anyone’s guess. Some IJs (and their clerks) are good about this; others, not so much.

Second, you can request to do the MCH in writing (in lieu of attending the hearing in-person). Check the Immigration Court Practice Manual, pages 70 to 72, for information about filing written pleadings. If the Judge allows this, you can avoid attending the MCH and go directly to the Merits Hearing. Just be sure that your affidavit and all supporting documents are submitted, so you are ready to go if and when the IJ schedules you for a final hearing.

Many attorney, including me, do not like filing motions to advance the MCH or motions for a written MCH. The reason is because they often do not work, and so what happens is this: You prepare and file the motion, call the Court several times, and ultimately have to attend the MCH anyway. When lawyers spend time doing extra work, it is fair for them to charge the client additional money. So don’t be surprised if your lawyer tells you that filing a motion will cost extra.

At the MCH: Typically, when you go to the MCH, the IJ gives you the first date available on her calendar for a Merits Hearing. But there are a few things you can do to try to get the earliest possible date.

One thing is to complete the entire case (the affidavit and all supporting documents) and give them to the IJ at the MCH. That way, if there happens to be an early opening, you can take the date (and sometimes, IJs do have early dates–for example, if another case has been cancelled). Many lawyers (again, including me) don’t love this because it requires us to do all the work in advance, and it often does not help. Don’t be surprised if the lawyer wants to charge extra for getting the work done early (many lawyers–and other humans–prefer to put off until tomorrow what we do not need to do today).

Second, you (or your lawyer) can try to talk to the DHS attorney prior to the MCH to see whether any issues in the case can be narrowed (usually, it is not possible to talk to DHS about the substance of the case prior to the MCH, as they have not yet reviewed the file). If that happens, maybe you will need less time to present the case, and you can tell the IJ that you expect a relatively short Merits Hearing. It may be easier for the IJ to find a one-hour opening on his calendar than a three hour opening (normally IJs reserve a three-hour time slot for asylum cases), and so you may end up with an earlier date. Even if you cannot talk with the DHS attorney, you can tell the IJ that you expect to complete the case in an hour and try to convince him to give you an earlier date, if he has one.

Third, if you have a compelling reason for seeking an earlier Merits Hearing, tell the IJ. If you have evidence demonstrating the need for an earlier date, give it to the IJ. Maybe the Judge will not have an earlier date available immediately, but at least he can keep the situation in mind and accommodate you if an earlier date opens up.

Finally, if you simply arrive early at the MCH and get in line, you may end up with an earlier Merits Hearing date than if you show up late to the MCH since IJs usually give out their earlier dates first.

After the MCH, but before the Merits Hearing: Waiting times between the MCH and the Merits Hearing are very variable, depending on the Immigration Judge’s schedule. Assuming that the IJ has given you the first available Merits Hearing date (which is normal – see the previous section), there is not much point in requesting an earlier date immediately after the MCH. Maybe if you wait a few months and if luck is on your side, a spot will open up and your request will be granted. Or–if the Judge has an effective clerk–you can file a motion to advance, and the clerk will save it until a spot opens up for you.

Another possibility is to talk to the DHS attorney to see whether issues can be narrowed, which might make it more likely that the case can be advance (see the previous section).

Some words of caution: Keep in mind that the Immigration Court system is a mess. Judges come and go. Priorities shift, which sometimes causes cases to be moved. It is quite common for court dates to change. Even if you do nothing, a far-off date may be rescheduled to an earlier day, or an upcoming hearing might be delayed. If you successfully advance your court date, it is possible that the Court will later rescheduled your case to a more distant date (this happened to us once). It is difficult to remain patient (and sane) through it all, but maybe being aware of this reality will somehow help.

Also, remember to make sure that your biometrics (fingerprints) are up to date. If not, you may arrive at the Merits Hearing only to have it delayed because the background checks were not complete.

Finally, do not give up. Immigration Judges are human. If they see a compelling reason to expedite a case, most of them will try to help. Explain your situation to the Judge, or let your lawyer explain, and maybe you will end up with an earlier date.

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A New Type of EAD Denial

by Jason Dzubow

This article is by Ruth Dickey, a brilliant and dashing associate at Dzubow & Picher, PLLC.

During the latter part of the Obama Administration, it became common for DHS/ICE attorneys (the prosecutors) in Immigration Court to offer “prosecutorial discretion” or PD. If the applicant accepted PD and the Immigration Judge agreed, the case would be administratively closed. Basically, it would be taken off the court’s calendar and placed into a permanently pending status. Applicants with weak cases might take PD rather than risk losing their cases with the Judge and getting ordered deported.

Perhaps USCIS has a case of the Gremlins. First, they sabotaged B-17’s and P-52’s; now, they’re messing with I-765’s.

Under President Obama, PD was typically offered to people who were not enforcement priorities for ICE – that is, the person had positive factors, like long-term ties to the United States and did not have any disqualifying criminal issues. During the Obama Administration, ICE published a list of factors that prosecutors would consider when a person asked for PD. According to recent data, since 2013, almost 67,000 court cases have been administratively closed based on PD. This represents about 10% of all case closings in Immigration Court.

If your asylum case was administratively closed by an Immigration Judge, and if you had your employment authorization document (“EAD”) based on a pending asylum case, you remain eligible to renew the EAD for as long as the case is in administrative closure (theoretically, forever). This is because the case is technically still pending, and thus still “alive” for purposes of renewing the EAD.

Since Donald Trump came into office, DHS has largely done away with PD, and so we can expect to see far fewer cases administratively closed in the future. However, our office has several asylum clients whose cases were already administratively closed. They have ongoing needs, such as the need for an EAD.

One of my clients in this situation is an Unaccompanied Alien Child or UAC. UACs are people who crossed the border as minors without a parent or guardian. Such people are given additional procedural protections. For example, UACs have the right to present their asylum claims to an Asylum Office, which is a less intimidating environment than an Immigration Court. In my case, an Immigration Judge administratively closed my client’s case so she could file her case with the Asylum Office. Before the case was closed, I “lodged” her asylum application with the Court to start her “asylum clock,” which then allows her to file for an EAD (after a 150-day waiting period).

When the time came, our office prepared the EAD application (form I-765) and mailed it. Last week, we received a response denying the EAD. In its denial, USCIS referred to the applicable regulation, 8 CFR 208.7(a)(1), claiming that it said:

An applicant whose asylum application has been denied or closed by an asylum officer or by an immigration judge within the 150-day [clock] period shall not be eligible to apply for employment authorization.

But this is not what the regulation says. USCIS inserted the phrase “or closed” into the language of the actual regulation. The full sentence in the regulation actually reads:

An applicant whose asylum application has been denied by an asylum officer or by an immigration judge within the 150-day period shall not be eligible to apply for employment authorization.

Someone at USCIS added the words “or closed” to their quotation of the regulation, and then denied our client’s case because it had been administratively closed. The actual language of the regulation states that only denied–not closed–cases are ineligible for an EAD. The idea that USCIS would add language to the regulation in order to improperly deny someone–a UAC no less–their work permit is shocking and distressing.

I have already escalated the issue to the USCIS Ombudsman, an office that can assist with delayed or difficult USCIS cases, because the denial is so problematic. I am waiting to hear back from them, but the Ombudsman’s review process can drag out for months, and my client will not have a work permit in the meantime. This is extremely frustrating for her, especially because she is young and vulnerable (she has that UAC designation for a reason).

If your case has been administratively closed and your EAD application has been denied, please let us know. If there are others experiencing this problem, we can present the issue to USCIS and hopefully seek a resolution of this unfair and harmful practice.

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When Lawyers Lie

by Jason Dzubow

The case of Detroit-area immigration lawyer David Wenger has been in the news lately. Mr. Wenger was recently sentenced to 18 months in prison for counseling his client to lie to the Immigration Court.

Mr. Wenger’s client is a 45-year-old Albanian citizen who has lived in the U.S. since he was six months old. The client’s family, including his daughter, live in the United States as well. Apparently, the client landed in removal proceedings due to a 2013 controlled-substance conviction, but the source of Mr. Wenger’s troubles stem from the client’s decades-old conviction for criminal sexual misconduct.

It seems that Mr. Wenger feared that if the Immigration Judge became aware of the sexual misconduct conviction, the client would have been deported. Having witnessed the tragedy of deportation many times, and particularly the pain it causes to the children of the deported, Mr. Wenger took matters into his own hands and tried to cover up the old conviction. It didn’t work.

Now, Mr. Wenger is going to jail and the client–while still in the United States–faces an uncertain future.

Mr. Wenger’s tale has caused some buzz among my fellow immigration lawyers. Mostly, it is described as “sad,” and certainly there is an undercurrent of sympathy for a man whose advocacy crossed a line that we, as lawyers, are trained to approach. I’ve known criminal defense lawyers, for example, who say that if you don’t go to jail for contempt once in a while, you’re not doing your job. And certainly there is an element of truth to this: When you are advocating for an individual against The Man, you have to use all the tools at your disposal and push the limits of the law to protect your client. That is our job–and our duty–as lawyers. But such zealous advocacy has inherent risks, as Mr. Wenger’s story reminds us.

So I suppose I understand Mr. Wenger’s motivation to lie. But I do not understand how he thought he might get away with it in this particular case. The U.S. government keeps records of criminal convictions, and the DHS attorney in the case would likely have known about the old conviction. So even if you are not morally opposed to lying, I don’t see the point of lying about something that the government knows already.

The temptations faced by Mr. Wenger are amplified in my practice area–asylum–where the U.S. government rarely has independent evidence about the problems faced by asylum seekers overseas, and significant portions of most such cases depend on the client’s own testimony. I’ve encountered this myself a few times when clients have asked me to help them lie (“Would my case be stronger if I said X?”). How to handle such a request?

The easy answer, I suppose, is to tell the client to take a hike. That is not my approach. I am sympathetic to people fleeing persecution who do not understand the asylum system, and who think that lying is the only way to find safety (and who often come from places where lying to the government is necessary for survival). In many cases, such people need to be educated about the U.S. asylum system. When a client asks me to lie, I explain that as an attorney, I cannot misrepresent the truth. I also explain why lying will likely not help achieve the client’s goal, and how we can present the actual case in a way that will succeed. Hopefully this is enough to convince the client to tell the truth.

For individual clients, of course, this type of honesty sometimes has its drawbacks: Cases may be lost, people may be deported–possibly to their deaths, and families will be separated. Some lawyers find this price too high. If you believe your client will be deported to his death and you can save him by lying, perhaps the lie is justified. Mr. Wegner, no doubt, felt that he was doing the right thing for his Albanian client (though a review of Mr. Wegner’s disciplinary record reveals that he has not always served the best interests of his clients). And there are certainly attorneys who believe that the ends justify the means. But I am not one of them.

When all is said and done, I will not lie for a client. I don’t think it is effective, and even if we get away with it in one case, I fear that it would hurt my credibility as a lawyer–and thus my ability to be an effective advocate–in all my other cases. I also feel that it damages the system, which hurts honest applicants.

In the final analysis, even if we ignore his other disciplinary issues, it is difficult for me to feel too sorry for Mr. Wegner. While a lawyer’s zealous representation of his client is admirable, the willingness to cheat corrodes our immigration system and ultimately harms the very people that lawyers like Mr. Wegner purport to help. For me, even the argument that lying is a necessary form of civil disobedience in an unjust system falls flat. Civil disobedience is about sitting at the lunch counter; not stealing the food.

Despite all the imperfections of the immigration system, our primary job as lawyers is to work within that system to assist our clients. We also have a role to play in criticizing and improving the system. But when lawyers lie, we fail as both advocates and as reformers.

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I Hate Withholding of Removal. Here’s Why.

by Jason Dzubow

I was in court recently for an asylum case where the DHS attorney offered my clients Withholding of Removal as a “courtesy” in lieu of asylum. DHS did not believe that my clients were legally eligible for asylum, but made the offer in order to settle the case. I negotiated as best I could for asylum, and I think the DHS attorney listened carefully, but ultimately, he was unmoved. When the Immigration Judge (“IJ”) learned that DHS would agree to Withholding, he remarked that the offer was “generous,” which I took as a sign that he wanted us to accept it. In the end, my clients did not agree to Withholding of Removal, and so the IJ reserved decision. We shall see what happens.

So what is Withholding of Removal? Why did the IJ view an offer of Withholding as generous? And why did my clients refuse this offer?

Stop complaining - You're lucky we give you anything to eat at all.
Stop complaining – You’re lucky we give you anything to eat at all.

Withholding of Removal under INA § 241(b)(3) is a lesser form of relief than asylum. If a person has asylum, he can remain permanently in the U.S., obtain a travel document, petition to bring immediate relatives here, and become a lawful permanent resident and then a U.S. citizen.

A person with Withholding of Removal, on the other hand, has technically been ordered deported, but the deportation is “withheld” vis-à-vis the country of feared persecution. This means that the person cannot be deported to that country, but she could (theoretically) be deported to a third country. A person with Withholding of Removal is eligible for an employment authorization document (“EAD”), which must be renewed each year. However, unlike with asylum, she cannot leave the U.S. and return, she is not eligible to become a resident or citizen, and she cannot petition for family members. In addition, on occasion, ICE (Immigration and Customs Enforcement) attempts to deport the person to a third country. Normally, this consists of ICE ordering the person to apply to various countries for residency. This is essentially a futile exercise, and it usually involves hours of wasted time preparing applications and sitting around the ICE office. Maybe it is designed to intimidate the person into leaving, but at a minimum, it is another stressful hassle that the Withholding-of-Removal recipient must endure.

The bottom line for Withholding of Removal is that those who have it are never truly settled here. They risk losing their jobs and drivers’ licenses if their EAD renewal is delayed (which it often is). They cannot qualify for certain jobs or certain government benefits. They usually cannot get in-state tuition for school. They can never travel outside the U.S. to visit relatives or friends, even those who are gravely ill. They are here, but not really here.

For me, Withholding of Removal is more appropriate for some recipients than others: One reason a person gets Withholding instead of asylum is that he has criminal convictions that make him ineligible for asylum. In the case of a convicted criminal, it is easier to justify denying the benefit of asylum, even if we do not want to send the person back to a country where he could be persecuted.

In other cases, it is more difficult to justify Withholding. If a person fails to file for asylum within one year of his arrival in the United States, he generally becomes ineligible for asylum. He remains eligible for Withholding, but downgrading his status from asylum to Withholding because he failed to file on time seems a harsh consequence for a relatively minor infraction. Other people—like my clients mentioned above—might be ineligible for asylum because the government believes they were resettled in a third country before they came to the U.S. “Firm resettlement” is a legal construct and it does not necessarily mean that the person can live in the third country now (my clients cannot).

Despite the limitations of Withholding of Removal, many IJs (and DHS attorneys) seem to view it as a generous benefit, and they encourage asylum applicants to accept Withholding as a way to settle removal cases. They also tend to take a dim view of applicants who refuse an offer of Withholding: If the person is so afraid of persecution in the home country, why won’t she accept Withholding and avoid deportation to the place of feared persecution? I understand their perspective, but I think it fails to account for the very basic desire of people like my clients to make the U.S. their home. They don’t want to live forever unsettled and uncertain. Having escaped danger, they want to live somewhere where they can make a life for themselves and—more importantly—for their children. Withholding does not give them that.

Frankly, I think that most IJs and DHS attorneys underestimate the difficulty of living in the U.S. with Withholding of Removal. And these difficulties are not limited to practical problems related to jobs and driver’s licenses, attending and paying for school, and the indefinite separation from family members. For my clients at least, Withholding of Removal does not alleviate the stress of their situation. They have fled uncertainty only to find more uncertainty. Will they be deported to a third country? Will they lose their job if the EAD renewal is delayed? If their driver’s license expires and they must drive anyway, will they be arrested? Can their children afford college? If they buy property and invest in life here, will they ultimately lose it all? Such uncertainty would be bad enough for the average person, but we are talking here about people who have already had to flee their homelands. Asylum is a balm to this wound; Withholding of Removal, in many cases, is an aggravating factor.

Perhaps if IJs and DHS attorneys knew more about the consequences of Withholding of Removal, they would be more understanding of asylum applicants who are reluctant to accept that form of relief, and they would be more generous about interpreting the law to allow for a grant of asylum whenever possible.

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Interview with an Immigration Judge: John F. Gossart, Jr.

by Jason Dzubow

In 2014, Immigration Judge John F. Gossart, Jr. retired after more than 30 years on the bench. Judge Gossart sat in Baltimore, where he was well-known and well-liked by attorneys on both side of the aisle (I myself had many cases with him), and his absence is still felt in his Court. Aside from his judicial work, Judge Gossart was (and is) an adjunct professor of law and a legal educator in the wider community. The Asylumist caught up with Judge Gossart to ask about his career, some memorable moments, and his opinions on the issues of the day in Immigration Court:

A photo of the official photo of Judge John F. Gossart, Jr. (it's the best we could do!).
A photo of the official photo of Judge John F. Gossart, Jr. (it’s the best we could do!).

Asylumist: How did you get to be an IJ? And why was this position interesting for you?

John F. Gossart: I came to immigration law totally by accident. I wanted to work for the Department of Justice, in public sector law, and I applied for a position there. While I was waiting, I hung my own shingle and practiced law out of my house. When DOJ hired me to work at INS (the Immigration and Naturalization Service), I couldn’t even spell immigration.

My first position there was as a Naturalization Attorney. At the time, applicants for naturalization had to file their petitions in U.S. District Court and present two character witnesses. I would interview the petitioner and the witnesses, and make recommendations about whether the applicant should be permitted to naturalize. I remember one Judge in the Eastern District of Virginia—“Roarin” Orin Lewis—who roared at all the attorneys. In those days, homosexuals were ineligible to naturalize because they were considered “sexual deviants.” I argued for a grant of naturalization for an admitted homosexual because he abstained from sexual activities. The petition was denied by Judge Lewis. In another case involving two Russian “swingers” who had admitted to adultery, Judge Lewis called me into his chambers and read me the riot act. The two were consenting adults, but that didn’t matter to Judge Lewis. He denied the case. At the time, the statute held that persons who committed adultery lacked good moral character.

Then, after a stint as Deputy Commissioner of Naturalization, I became a trial attorney for INS. Eight years later, I had the opportunity to become an Immigration Judge. On October 30, 1982, I was appointed an IJ by Attorney General William French Smith.

As an IJ, I rode circuit and heard cases in many locations: Baltimore, DC, Philadelphia, Pittsburg, Buffalo, Hartford. I loved the job. I enjoyed the challenge and I loved dealing with people. One concern for me was that the private bar might view me as a prosecutor in a judge’s robe. On the other hand, sometimes when I ruled in favor of the respondent, people at INS complained that I had “crossed over.” In fact, I don’t think I played favorites; I just tried to follow the law. My mantra was to be “Fair, Firm, Decisive.”

Asylumist: Are there any cases that you worked on that were particularly memorable?

JFG: I was the IJ in two Nazi war criminal cases. In the case of George Theodorovich, the trial lasted 3½ weeks. He was a Ukrainian police officer who came to the U.S. under an executive order. He denied all charges and claimed that the case against him was a Russian plot. I went to the Russian embassy to review documents, and at trial, several Survivors testified. I entered a 154-page decision (my longest decision) where he was found deportable. He appealed to the BIA. While the case was on appeal, Theodorovich fled the U.S. and went to Paraguay.

Asylumist: As an IJ, what are some common problems that you see when lawyers present cases?

JFG: Dr. Stanley Sinkford, a renowned doctor and professor at Howard Medical School, always told his medical students, “Proper Preparation Prevents Poor Performance,” meaning it is usually a lack of preparation that leads to problems. Some lawyers become too comfortable with their role; they think they can come into court and wing it. Also, proper vetting of clients and—more importantly—witnesses is very important. You cannot meet the witnesses 30 minutes before the hearing and hope everything goes well. I’ve also seen instances where the lawyer did not know the applicable law. This was a particular problem among lawyers who dabble in immigration law. A number of attorneys came before me who thought that the IJ has equity powers. They would ask the court to allow the respondent to stay in the U.S. even where there was no basis to allow him to stay. I fear that such lawyers portray this idea to their client—that the IJ can let you stay, even without a legal basis for relief.

Asylumist: How do you handle cases where you feel that the applicant may have relief, but lawyer errors and/or ineffective assistance of counsel might cause the alien to lose?

JFG: As an IJ, you almost never want to admonish an attorney in public; it is better not to be on the record or in the presence of the client. I have talked to lawyers in chambers, however. I’ve told them, “If you are not familiar with law, you need to become familiar. You have a duty to do your best for your client.” Also, if I am aware that the client appears eligible for another form of relief, I will ask why the attorney is not pursuing it. Attorneys appreciate that a Judge is willing to talk to them in private.

Asylumist: Have you had cases where your gut tells you to rule one way, but the evidence requires that you rule the opposite way? How do you deal with that?

JFG: That is when a judge feels stressed, alone, and badly about the decision he must render. Such decisions are difficult; I suppose that’s why we’re paid the big bucks. But we are judicial officers, and we are required to follow the law. It’s been said by the Supreme Court in Knauf v Shaughnessy, “Judicially we must tolerate what personally we regard as a legislative mistake,” but that is our role as an administrative judge. Your gut may tell you one thing, and you may have sympathy for the person in front of you, but unless that person satisfies the requirements for relief under the law, you cannot get to discretion, and you cannot provide equitable relief. As a Judge, we have to make these kinds of difficult decisions. It is what the law requires. Ultimately, to do justice, you have to read, know, and follow the law.

Asylumist: Over the past couple years, we’ve heard reports about the problem of IJ burnout. Was that a factor for you? How did you protect yourself?

JFG: I was constantly assessing myself, and I remained on-guard for burnout. Whenever necessary, I took a recess from court, or I took a day off. My colleagues were very supportive in this regard; it was helpful to have someone to vent to.

EOIR recently held a conference in Washington, DC—the first live conference in five years. Such events are very important. Judges are able to bond with colleagues. They brought a psychologist to discuss stress.

Asylumist: What do you think EOIR could do differently to better support IJs and make the system more efficient?

JFG: First, we need more judges and this should be done promptly. Preferably, we need candidates with a strong immigration or judicial background. More than 50% of the IJ bench is currently eligible for retirement. So we need regulations for phased retirement and we need to implement the Moving Ahead for Progress Act. This Act would permit IJs to work part time, which is something many IJs are interested in.

Also, we should institute senior status for IJs, so retired IJs could return to the bench to help with the workload. I had proposed this idea several years ago, but personnel felt it would be difficult to do. However, in the last year, EOIR has instituted a recall program, which allows Department of Justice attorneys with sufficient experience to fill temporary judgeships. This program seemingly targets BIA staff attorneys and OIL attorneys; it has not been extended to retired IJs. The Immigration Judges’ Association has been advocating for senior status as well, so retired IJs could return to help address the backlog or cover for a Judge who is absent. Imagine how efficient it would be for someone like me to step in and work for a week or a month while another IJ was on detail or leave. We have a number of IJs who are retired. They have decades of experience and are willing and able to do this.

In addition, we need to provide courts with adequate support staff, and IJs need more administrative time to keep up with motions, read case law, and stay on top of the profession. Judges also need more training—one live conference in five years is not adequate.

I would also like to see implementation of the sanction recommendation that was part of the 1996 statutes. This would give IJs more authority to sanction attorneys for misconduct. They could impose fines. Some lawyers need this type of lesson as a wakeup call. If we are to implement a sanction process, it should apply equally to private attorneys and government counsel. DHS had wanted sanctions only against the private bar, but IJs generally oppose that idea—you have to treat both sides the same.

Asylumist: The definition of a particular social group (“PSG”) has expanded pretty significantly in the last 20 years, mostly through litigation. What is your opinion of this? How do “flood gate” arguments influence IJ thinking regarding PSGs?

JFG: Since the 1980 Act came into effect, it has been litigated and litigated. I think this is healthy. PSG is the most difficult provision of the statute; other protected categories are more self-explanatory.

As to the flood gate argument, as an IJ, we cannot have that as a factor for consideration.

One area I struggled with was PSG cases involving domestic violence. We are still waiting for the government to issue regulations to help guide us. Maybe domestic violence cases would be better addressed through legislation instead of trying to fit them into a PSG, especially when we have such little guidance. Such cases are difficult because they are often very sympathetic. Perhaps it might be better to pass legislation to benefit the abused, rather than to try to figure out how to craft this group of abused individuals into a particular social group.

Asylumist: It seems fairly common for cases referred from the Asylum Office to the Court to be granted by IJs. Do you think this is a systematic problem? Might there be some sort of “fix” that could take place between EOIR and the Asylum Offices?

JFG: To do that, you would have to change the administrative asylum process, and this is a question of resources. When an asylum case is presented to the Asylum Office, there are no witnesses, there are time constraints, the applicants must bring their own interpreters (who may be good—or not). It is an imperfect system.

When the case is referred to Court, many applicants get a lawyer—and that makes a big difference. Attorneys know what evidence to include, they present witnesses, they can get a psychological evaluation. This evidence is often not presented at the Asylum Office. The system we have in Court is a more perfect system. But of course, we like the Asylum Office. Every case they grant is one less case on the Court’s docket.

If you don’t want applicants to get two bites at the apple, you can require asylum applicants who are out of status to go directly to Court.

Asylumist: Do you have any thoughts on how to reduce the backlog?

JFG: DHS could better prioritize which cases are prosecuted. We could have more pre-trial hearings. Why have a lengthy hearing if DHS won’t oppose the case in the end? There could also be more stipulations and more administrative closures. Of course, there is always the issue of Monday-morning quarterbacking. What if a person whose case is admin closed commits a crime? The government does not have the resources to prosecute all cases, but how do we know which cases to pursue? I do think if DHS had more time for stipulations, it would ultimately save time for everyone.

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Postcard from the Apocalypse: November 29, 2019

by Jason Dzubow

 

BEGIN TRANSMISSION: 

If you’re reading this, maybe there’s still hope. Today is November 30, 2019. Dawn. Yesterday, the world came to an end. 

This is how the Immigration Court backlog ends.
This is how the Immigration Court backlog ends.

I am one of the few survivors. The very few. And I am sending this transmission back in time by Tachyon beam in a desperate attempt to avert the apocalypse and to save humanity. By my calculation, this message should be received in July 2015. Back then, in your present, it was not too late. Things could have—could still—turn out differently. 

What happened? Nuclear war? Environmental degradation? Rapture? No. Such disasters, we could have dealt with. It was something at once more horrifying and more mundane. More innocent, yet more insidious. Small, yet massive. You get the idea.

“What was it, then?!” you plead. Listen well, my friend, and I will tell you the tale of November 29, 2019. On that day, the U.S. Immigration Court system collapsed upon itself, creating a singularity–a black hole, if you will–that absorbed everything in its path: First it took foreigners. No one seemed to mind. Then it took hippies, Libertarians, bachelorettes, and then people who enjoy listening to the Redirect immigration podcast (seriously, though, you should be listening to that). Finally, it took everyone and everything else. Now, all that’s left is me and a few others. We don’t have much time. 

It all began innocently enough: Immigration Courts started scheduling a dozen or so aliens for hearings at the same time and place. Didn’t they know that this violates a basic law of physics and, as it turns out, a basic law of Immigration Court—No two aliens can occupy the same hearing space at the same time! Read your Archimedes, people! Isaac Newton! Anybody?

Oh, the powers-that-be at EOIR (the Executive Office for Immigration Review) didn’t think it was a big deal. They were violating the alien’s due process rights, but only a little. And it was for a good cause—efficiency, so what did it matter? But then they got arrogant. Master Calendar Hearings with 40, 50, 60 or more people. Half a dozen respondents on the same transcript, answering charges and conceding removability en masse. Due process protections eroding. But so slowly that no one noticed. The lawyers, the aliens, all of us became complacent. We let it happen. 

And then things got worse. In 2014, Immigration Judges started scheduling scores, then hundreds, then thousands of aliens to appear on a single day—November 29, 2019. They claimed this was some sort of “holding” date; that the cases would be rescheduled. Lies! Instead of making the hard journey up Mt. Sinai to seek justice, they worshipped below at the idols of efficiency and budget cuts. Who sows the wind shall reap the whirlwind! 

Before anyone really understood what was happening, tens of thousands of immigrants were scheduled to appear in Immigration Court on that fateful day, November 29, 2019 (may it be obliterated from memory). Throughout November, they gathered. They came by themselves or with their families. Small children without parents. Old people. People who had lived in the U.S. for years and people who were fresh off the hovercraft (hovercrafts were very popular in 2019). They filled the Immigration Court waiting rooms and spilled into the hallways. Masses of people, huddled together. Waiting. Soon, the court buildings were full, but still they came. 

EOIR saw what was happening. They could have stopped the madness. They could have rescheduled the cases. But they didn’t. Why? Was it a conspiracy that reached to the highest levels of government? Or had some scheduling clerk gone rogue? I suppose we’ll never know, and anyway, it doesn’t much matter. 

The more the foreigners gathered, the more they came. It was exponential, logarithmic, seismic. Soon, it wasn’t only people facing deportation. People with TPS started showing up. They were followed by conditional residents who were still married (miracle of miracles). Then there were people with valid visas, still in lawful status: B’s, TN’s, and L’s, Q’s and R’s, H1-B’s and E’s, all varieties of A’s and J’s, and even the odd I or C visa holder. I knew we were in trouble by the time the lawful permanent residents began showing up. And when U.S. citizens started arriving, it was clear that something terrible would happen.

And then it did. The collective gravity of all those people began feeding on itself, swallowing everything and everyone in its path–a black hole. But like I say, if you’re reading this, there’s still hope. There is a simple solution to the Immigration Court backlog. It’s so obvious, that it’s a wonder no one noticed it before. All you have to do is…

ERROR ERROR ERROR END TRANSMISSION 

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Immigration Court: The Other Backlog and What to Do About It

by Jason Dzubow

I’ve written quite a bit in these pages about the backlog at the Asylum Offices, but today I want to focus on another backlog–in the Immigration Courts–and what can be done to improve the situation. The Court backlog has been a bit off my radar; I suppose because the Immigration Courts have always been slow, and so delay in that realm was the norm. But the fact is, the delays in Court have gotten worse. My furthest case is currently set for March 2019. I expect to travel to the Court in my hovercraft.

Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.
Maybe aliens can hire Doc Brown to get them to their Individual Hearings more quickly.

The basic problem for the Courts, and across the government, is money. Resources are limited and now, with a Congressional leadership hostile to immigration, it seems less likely that the budget for EOIR–the Executive Office for Immigration Review; the agency that oversees the Courts–will be expanded (though a new, anti-immigration bill pending in the House would create 50 new Immigration Judge positions). However, there are some reforms that could be implemented that would not require additional money from the government.

Below are a few suggestions. Some might require Congressional action; others would not. Given the current situation, something needs to be done. Perhaps some of these ideas would help alleviate the Court backlog:

– Impose Costs: Criminal and civil courts routinely impose costs and fines on people in the system, so why shouldn’t Immigration Courts do the same? There generally is only one reason that a person would have a case before an Immigration Judge–he violated the immigration law. Maybe the violation wasn’t his fault (think referred asylum seekers), and so a fine or payment of costs is not warranted, but the IJ can make this determination. The Immigration Court system is expensive, and it seems fair that people who are in the system because they violated the law should help pay for it. And of course, this money could be used to help improve the system.

– Premium Processing: Certain application before USCIS allow for premium processing. The applicant pays additional money and receives a faster decision (though not necessarily a better decision). Maybe the Immigration Courts could create some type of premium processing so that an alien could pay additional money to speed up her case. I have written about this idea in the context of the Asylum Office. The people who pay the premium processing fee would benefit the most from this plan, but the infusion of money into the system should benefit everyone.

With regard to the imposition of costs and premium processing, it seems a reasonable question to ask: Is this fair to people who cannot afford to pay? I suppose it is not, but America is not really a fair place. We are a liaise faire capitalist democracy. Every man for himself, and all that. We routinely fine the poor for being poor, and while I don’t like imposing costs in the immigration context, it is a way to improve the system for everyone–even those who cannot pay.

One last point here. Maybe one way to ease the burden would be to spread out the cost. If an alien is fined or forced to pay costs (to pay for the court, DHS, his own detention, etc.), those costs could be paid over time. Instead of receiving a green card, for example, the alien could receive a conditional green card that must be renewed every two years. As long as he continues to pay his debt, the card will be renewed.

– Empower DHS: DHS attorneys are overworked and lack the resources necessary to properly do their jobs. Adding additional staff to the various Trial Attorneys offices would allow DHS to review cases in advance. This would allow attorneys like me to file applications for relief in advance. DHS could then review the applications and–where appropriate–agree to the relief. Of course, DHS would not agree to relief in all cases, but in many cases, relief is not contested. If we could agree on relief in advance, we could remove the case from the Court’s docket, thus freeing space for other cases. Indeed, perhaps this could be combined with premium processing, so that the alien can pay a fee to DHS to review her case (and DHS could use this money to hire more staff). Maybe DHS could even meet with the alien to further explore whether relief is appropriate. If, after examining the case, DHS determines that relief is appropriate, it could inform the Court, which would then grant the relief without a hearing.

There has been some (tepid) movement in this direction, with prosecutorial discretion, but that does not go far enough. Aliens who are eligible for substantive relief do not want prosecutorial discretion; they want their cases granted. If DHS had the resources to review and decide cases in advance, it would help alleviate the backlog before the Immigration Courts.  

– Pre-Master Calendar Hearings: Let’s face it, Master Calendar Hearings (“MCH”) are a huge waste of time. Why not require any alien who enters the system to attend a pre-MCH with a member of the Court staff (not an IJ). The pre-MCHs could be arranged by language group, so that everyone attending speaks the same language and the Court staff member could be fluent in that language (or have an appropriate interpreter). At the pre-MCH, the aliens would watch a video–in their own language–explaining the system and their rights (basically what the IJ repeats to pro se aliens 31 times each MCH). The staff member could answer basic questions and encourage the pro se aliens to find lawyers (basically what the IJ does 31 times each MCH). Aliens who will not use a lawyer can be scheduled for an in-person MCH, like what we have now. Aliens who say they will hire a lawyer will be given a deadline for the lawyer to enter her appearance (see the next suggestion for more on lawyers and MCHs). If the deadline passes, the alien will need to attend an in-person MCH.

– e-Master Calendar Hearings: EOIR now requires all attorneys to register and obtain an EOIR ID Number. As far as I can tell, EOIR does nothing with these ID numbers. However, it (supposedly) is a first step towards electronic filing. Federal courts across the United States require electronic filing, and I see no reason that the Immigration Courts should not do the same. Once an attorney enters her appearance, she should be able to go on-line and plead to the allegations and charges in the Notice to Appear (the charging document in Immigration Court). She should also indicate the relief sought. If there is some reason that the lawyer needs to see the IJ, she can request to appear at a regular MCH. But for the large majority of cases, all the pleadings and requests for relief could be done on-line. How, you ask, would this be an improvement over the current system, where lawyers can file written pleadings? At least in my experience, written pleadings are a huge pain in the tuchus. IJs often ignore them until the last minute, and we have to repeatedly call the Court to see whether the IJ will rule on them. So they really are not worth the trouble. If there was an easy electronic system that actually worked, and we could avoid MCHs, attorneys would be much inclined to use that system. It would save Court and DHS time, and it would also save attorney time and perhaps reduce costs for the alien.  

OK, I suppose that is more than enough for now. If anyone at EOIR wants to hire me to implement these changes, you know where to reach me…

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Sixteen Years and 20 Minutes to “Other Serious Harm” Asylum

by Jason Dzubow

Our guest blogger today is Jonathan Bialosky, an attorney at the George Washington University Law School Immigration Clinic. He recently had an important win in an “other serious harm” asylum case. It also happens that he was a student in Todd Pilcher and my Asylum Law class at GW last semester. Congratulations on the win (and on passing our class – which you could have taught). Enjoy– 

On September 3rd, 16 years after filing his application, and two years after first approaching the GW Immigration Clinic, my client was granted asylum. Sixteen years is a long time, even in the glacially slow world of EOIR, but more significant is that the Immigration Judge granted my client “humanitarian asylum” on a basis that seems to be greatly under-utilized.

Jonathan Bialosky, who claims that taking Todd and my class constitutes "other serious harm."
Jonathan Bialosky, who claims that taking Todd and my class constitutes “other serious harm.”

There are two types of humanitarian asylum. The first is for individuals whose past persecution was so severe that they cannot be expected to return to their home country, even if—typically because of changed country conditions—they no longer have a well-founded fear of return on account of a protected ground. The BIA first addressed this type of humanitarian asylum in 1989 in the precedent decision Matter of Chen, and this type of humanitarian asylum was codified as a regulation in 1990. 

Matter of Chen seems pretty well-known, but a second type of humanitarian asylum is apparently much less common. Pursuant to a regulation that became effective in 2001, under a different type of humanitarian asylum, applicants who suffered past persecution on account of a protected ground but who no longer have a well-founded fear of persecution on account of a protected ground remain eligible for asylum if there is a reasonable possibility that they would suffer “other serious harm” upon removal. The BIA, in the 2012 precedent decision, Matter of L-S-, explained that the “other serious harm” need not be related to the past persecution or even have a nexus to a protected ground.

My client qualified for “other serious harm” asylum because he previously suffered past persecution on account of his imputed political opinion and now, due to serious medical conditions, he would die if he were removed to his home country, where the medical care he needs to survive is not available. My client is from Sierra Leone and he served in a regimental band in the country’s army. In 1998, during the civil war, he was falsely accused of involvement with anti-government rebels. He was detained at a military barracks for two weeks, beaten with sticks and weapons, and burned with cigarettes. He escaped and made his way to the U.S. Sadly, beginning in 2000, when he was diagnosed with HIV, my client suffered a series of medical problems. His kidneys failed, he went into a coma, and then, after finally receiving a kidney transplant, his body rejected the new organ. All the while, his asylum application (first filed in 1998 within six months of his arrival in the U.S.) remained administratively closed by USCIS—for 13 years—hence the long wait for a decision.

Through dialysis and participation in a clinical trial of anti-retroviral drugs with the NIH, my client’s medical condition is more or less stable, but he leads a pretty grim life: He has many dietary restrictions, he’s on dialysis three days a week for four hours at a time, and he’s constantly tired. In addition, he has chronic nightmares about what happened in Sierra Leone. All these problems, combined with the generally poor quality of medical care and the recent Ebola outbreak in Sierra Leone, made it pretty clear that, even though the civil war has ended, my client would suffer “other serious harm” upon removal. Dialysis is not widely available and is prohibitively expensive in Sierra Leone, and kidney transplants are even more rare. One doctor wrote a letter stating that sending my client to Sierra Leone was a “death sentence,” and that he wouldn’t last more than a few weeks there.

The ICE trial attorney and, more importantly, the Immigration Judge, agreed. After 16 years, my client’s asylum merits hearing lasted just 20 minutes. ICE and the IJ were satisfied with the evidence we submitted before the hearing that my client was deserving of humanitarian asylum.

It wasn’t me who identified the legal theory that ultimately won my client’s asylum. Others far sharper than me identified the legal basis that essentially made my client’s case a shoo-in. I had no idea about humanitarian asylum. When I told an immigration attorney friend that I was working on a humanitarian asylum case, she was only familiar with the Matter of Chen type claim. I was also surprised to see very few judicial opinions discussing “other serious harm asylum” (though admittedly, this made the legal research for my brief much easier).

“Other serious harm” asylum has the potential to help many people, even those who have been in the U.S. for more than one year and never applied for asylum. Actually, “other serious harm” humanitarian asylum may render the one-year filing deadline meaningless for some. Consider those that suffered past persecution on account of a protected ground and now cannot return to their home country for some other reason. As my client’s case demonstrates, the reason could be that the individual has a medical condition that cannot be effectively treated in the home country. In addition, Matter of L-S- states that “civil strife, extreme economic deprivation and new physical or psychological harm” could be the causes of other serious harm. The inquiry is prospective, so changed circumstances matter. A recently diagnosed medical condition or outbreak of violence in the home country could constitute changed circumstances that serve both as an excuse for the late filing of the asylum application and as the basis of “other serious harm.” To my knowledge, this has not been tested, but for individuals who did not comply with the one-year filing deadline, “other serious harm” humanitarian asylum may present a viable option for relief where there otherwise would be none.

My client’s experience seems almost tailored-made for “other serious harm” humanitarian asylum, but maybe there are others out there who could benefit from this basis for asylum. With a little publicity for this relatively obscure regulation, maybe some of them can win asylum too. With any luck, they might even be able to do so in fewer than 16 years.

Jonathan Bialosky, Esq., supervises Immigration Clinic law students and provides legal representation to asylum seekers and respondents facing deportation in Immigration Court.  He previously served as director of the Maxwell Street Legal Clinic in Lexington, Kentucky from January 2011 until July 2013, serving as the sole attorney at a nonprofit immigration law practice. Jonathan is a May 2010 honors graduate of the George Washington University School of Law.

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In (Attempted) Defense of Banning Iranian-American Immigration Judges

by Jason Dzubow

If you follow the news from the Executive Office for Immigration Review or EOIR–the office that oversees the Immigration Courts–you are aware of the recent lawsuit filed by Judge Afsaneh Ashley Tabaddor. Judge Tabaddor is an IJ in Los Angeles. She was appointed in 2005 and has been serving ever since. Judge Tabaddor also happens to be Iranian-American.

Judge Tabaddor has been mistreated by the executive branch. We hope she doesn't leave, and we are root-ing for her.
Judge Tabaddor has been mistreated by the executive Branch. We hope she doesn’t Leave. We are Root-ing for her.

According to Judge Tabaddor’s complaint against EOIR, trouble began for her in the summer of 2012 when the White House–considered by some a radical Muslim organization–invited her to attend a “Round Table with Iranian-American Community Leaders.” After some hemming and hawing over the nature of the event, EOIR granted the Judge leave to attend. But afterward, EOIR banned Judge Tabaddor from adjudicating cases involving nationals from Iran. So in other words, an Iranian American Judge who is active in her community is not permitted to hear cases where the alien is from Iran.

On it’s face, EOIR’s decision seems completely ridiculous and indefensible. It would be like forcing members of the National Association of Women Judges to recuse themselves in cases involving women, or stopping members of a Jewish judges association from hearing cases involving Jews, etc., etc. But can EOIR’s decision somehow be justified? Does it make sense to ban an Iranian-American who is involved in her community from hearing cases form Iran? Permit me to try to make that argument (as an asylum lawyer, tilting at windmills is my specialty).

Perhaps EOIR is concerned about the Judge because Iran is considered our enemy (or–on a good day–our rival). Allowing Judge Tabaddor to hear Iranian cases would be like allowing an American originally from the Eastern Block to serve in the White House during the Cold War (Zbigniew Brzezinski) or like allowing a German-American to lead the fight against Germany in WWI (John J. “Black Jack” Pershing) or against the Nazis in WWII (Major General Carl Spaatz). Hmm, maybe that argument doesn’t work so well after all. Let me put it another way. If you are at war with Japan, you’d better imprison all Japanese-Americans. Wait. Maybe that is not such a good argument either. Let’s try this a little differently. 

It could be that EOIR is worried about the appearance of bias. Appearance is very important for judges. If an IJ is perceived as biased, it reduces our confidence in her decisions. It would be as if five Republican-appointed judges voted to end an election recount, giving the victory to the Republican presidential candidate. Oy. Let me give you a better example. Maybe it would be like allowing a Russian figure skating judge who is married to the director of the Russian Figure Skating Association to serve as a judge at the Sochi Olympics. And then the Russian skater miraculously wins. Harrumph. I guess that one doesn’t work too well either. Maybe we should look at the problem another way.

What if we assume that Judge Tabaddor is, in fact, biased in favor (or against) Iranian respondents. If that is the case, why should the recusal order be limited to cases from Iran? Iran and Iraq fought a war recently, so probably the IJ is biased against Iraq and should not hear cases from that country either. Iran also fought a war with Greece back in the day, and if I were Iranian, I’d still be bitter about the Battle of Thermopylae. So the Judge should also be banned from hearing cases involving Greeks, or at least Spartans. Iran has endured invasions by Mongols and Arabs, so Judge Tabaddor obviously should not hear Mongolian or Arab cases, and since Mongolians were mixed in pretty good with the Chinese, we’d better also ban her from Chinese cases–just to be safe. And of course, Iran doesn’t much like Christians, Baha’is or Jews, so the Judge should probably be kept away from cases involving those faiths. In addition, Iran has disputes with Russia, Azerbaijan, Turkmenistan, and Saudi Arabia. The Judge would have to be banned from hearing cases involving those nationals as well. And don’t even get me started about cases involving Israelis. So basically, if Judge Tabaddor is biased, as EOIR seems to assume, the only cases she should decide involve people from Guyana or New Zealand. And maybe São Tomé, but I’m not even sure that’s a country.

In the end, I really don’t know whether Judge Tabaddor’s lawsuit will succeed. IJs exist to implement the authority of the Attorney General. If the AG chooses to prevent certain IJs from reviewing cases from certain countries, that may be within his discretion. While the law may not be clear (at least to me), I have no doubt about which side is right. If an IJ behaves in an inappropriately biased manner, she should be removed from her job. But where–as here–there seems to be no question as to the Judge’s integrity, her docket should not be restricted in this insulting and discriminatory way.

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Top 10 Reasons the EOIR Computer System is Down

by Jason Dzubow

If you are an attorney or an immigrant with a case before the Immigration Court, you’ve probably noticed that the computer system has been down for almost two weeks. The phone system for checking case status is not working, and there are all sorts of problems at the courts and the BIA. Apparently, the cause of these difficulties is that some servers in Fairfax, Virginia are broken and cannot easily be repaired. No one seems to know why this happened, and EOIR (the Executive Office for Immigration Review) is not telling us much. The EOIR website says only that they are experiencing a “hardware failure.”

EOIR computer techs are working day and night to solve the problem.
EOIR computer techs are working day and night to solve the problem.

As a public service, I have decided to step in and fill this information gap with unfounded speculation. I figure that if I take the time to write something down, people might as well believe it. So to all those waiting for the system to start up again, take comfort. I present to you the top 10 reasons that the EOIR computers are not working:

10. Juan Osuna forgot to pay the electric bill.

9. The Y2K bug finally kicked in. 

8. The computer shut itself down after it played 35 million games of tic-tac-toe and learned that it is impossible to “win” a removal case. 

7. It is getting more and more difficult to find new vacuum tubes and punch cards.

6. Once the computer calculated that the average time to the next hearing exceeds the life expectancy of the average respondent, it decided there was no point and turned itself off.

5. Everyone who signed up for Obamacare has accidentally been deported.

4. Someone asked the computer to figure out how the Asylum Clock works, and it blew up.

3. Joe Arpaio arrested the computer for helping “illegals” remain in the U.S.

2. If you build a 500 gigabyte computer, someone will file a 501 gigabyte case.

1. Everyone who knows how to fix a computer has already been deported.

There you have it. Some of these explanations may even prove to bear a relationship to reality. If so, remember that you heard it here first.

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Immigration Judge Apocalypse 2014

by Jason Dzubow

Nearly half of the nation’s Immigration Judges are eligible to retire this year.

Last week, I attended the retirement luncheon for one of them: Judge Wayne Iskra. For the past 10 years, I practiced before Judge Iskra at the Arlington, Virginia Immigration Court. I also clerked for him back in 1998-99. He is a wonderful person who was a great inspiration to me and many others. He was also a great judge–he was devoted to ensuring that justice was done, and he had little patience for attorneys (private attorneys or DHS attorneys) who failed to fulfill their duties.

Immigration Judges today...
Immigration Judges today…

The MC at the lunch, Judge Thomas Snow, noted that before his retirement, the Chief Judge repeatedly described Judge Iskra as “irreplaceable.” Finally, Judge Snow realized that when the Chief said that Judge Iskra was irreplaceable, it meant that he would not be replaced.

So the Arlington Immigration Court, which is already very busy and where cases are currently being scheduled into late 2016, will now go from five judges to four. The same thing happened in Baltimore last summer, when another excellent and long-serving IJ, Judge John Gossart, retired.

Although I have not heard news of any mass retirement, the Associated Press reports that almost 50% of the nation’s Immigration Judges are eligible for retirement this year. While I suppose this is good news for people selling condos in Ft. Lauderdale, it is bad news for the Immigration Court system.

...and in 2015.
…and in 2015.

And yes, as the immigration restrictionists love to remind us, certain immigrants prefer delay, so they can buy more time in the United States. But at least in my experience, this is a minority. Granted, my cases may not be typical. Most of my clients have good cases, and so the sooner they get to the merits hearing, the better. Also, many of my asylum clients have family members who they hope to bring to the U.S. if their cases are granted. The longer the delay, the longer they are separated from (and worried about) their family members. So for me, the increased delays are definitely a bad thing.

Also, I am quite certain that the remaining IJs won’t be happy about their depleted ranks. Immigration Judges are already overworked and overburdened. The title of a 2010 Mother Jones article sums it up well–Judges on the Verge of a Nervous Breakdown. From the article:

Caught in the middle [of the Obama Administration’s efforts to increase deportations] are the judges, for whom mind-numbing bureaucracy collides with thorny moral issues. Most of the time, they work without even basic staff like bailiffs and stenographers. Increased immigration enforcement means that their workload is the highest it has ever been—three to four times larger than caseloads in other federal courts.

And of course, mistakes can have dire consequences. As one IJ noted, “It makes me feel ill to grant asylum to someone who I believe is probably lying, but it also makes me sick to think that I have denied protection to someone who really needs it.”

The obvious solution is to hire more (lots more) judges and court staff. But given EOIR’s budget (or lack thereof), this seems unlikely. So here are a few other thoughts:

– Create an easy, secure on-line system to allow EOIR-registered attorneys to do their Master Calendar Hearings by email. Attorneys could enter their appearances, admit or deny allegations, plead to charges, and set dates for Merits Hearings. For complicated cases (and pro se cases), IJs would still require Master Calendar Hearings, but an on-line system would be a great time saver for everyone.

– Hire more DHS attorneys and staff, and encourage them to communicate with attorneys for immigrants. Many issues can be resolved before trial, which saves time. However, because DHS is also short staffed, they do not have the resources to review cases prior to trial and speak with opposing counsel. If they did, it would shorten hearings and make life easier for the IJs.

– Stop deporting so many people. It seems that President Obama is intent on setting deportation records year after year. As a result, hundreds of thousands of people are being placed into removal proceedings. If ICE were more selective about who it tried to deport, DHS attorneys and IJs could focus more on those cases. We don’t ticket everyone who drives over the speed limit. We don’t prosecute everyone who is caught with a joint. We don’t arrest everyone who illegally downloads music. Why? Because we don’t have the resources to do those things, and to do so would require intolerable levels of intrusion into our lives. In the same way, it seems to me, we could relax a bit concerning deportations. Resources–including judges’ time–is limited. We should use that limited resource more efficiently.

– Don’t allow any more IJs to retire. OK, maybe it is not technically legal to force IJs to keep working, but an immigration lawyer can dare to dream. Besides, I want Judges Iskra and Gossart back.

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Book Review: Bench Pressed by Immigration Judge Susan L. Yarbrough

by Jason Dzubow

It’s rare to hear from judges about how their jobs affect them. In an engaging new memoir, Bench Pressed, former Immigration Judge Susan L. Yarbrough discusses the human side of adjudicating asylum cases.

Is it hubris or chutzpah (or both) to judge a Judge on the Day of Judgment?
Is it hubris or chutzpah (or both) to judge a Judge on the Day of Judgment?

The book covers five cases decided by Judge Yarbrough–one for each of the five protected grounds (race, religion, nationality, political opinion, and particular social group). Reflecting the time period (1990’s) and the location of her court (Texas), most of the cases involve Latin American applicants. The one exception is a Palestinian man who was used as a human shield by the Israeli army. The IJ gives some background on the country situation and then describes each person’s case. Finally, she talks about how each case affected her.

This book was a quick read, and–as a person who practices asylum law on a daily basis–I really enjoyed it. That said, it seems to me that the book is targeted more for people who are not so familiar with the asylum system. For someone like me, the stories of the applicants are probably the least interesting part of the book. I am more interested in the Judge’s observations of “the system” and of her own reactions to the cases. The stories of the applicants are similar to what I hear from my clients all the time. But for people who do not live this stuff, I imagine that the stories may be the most interesting part of the book (and the stories are interesting).

One surprise in the book was how strongly Judge Yarbrough was affected by these cases. She often described crying after a case, and it was obvious that the job was emotionally trying for her. In some ways, I think she is lucky to “feel” the cases so strongly, though of course it takes a toll. I clerked for an immigration court during the same time that Judge Yarbrough was active, and so I observed IJs in Atlanta, Philadelphia, and (mostly) Arlington, Virginia. I never got the sense that they were as emotionally affected as Judge Yarbrough, and so I think her reactions may be somewhat atypical. Nonetheless, her observations shed important light on the emotional damage these cases can do to the adjudicators (and others in the system).

If there is a weakness to the book, it is that the Judge does not discuss any cases that she denied. I would have been curious to see how a judge reconciles her duty to the law with what she views as the morally correct outcome where those two concepts are in conflict. I recall a federal appeal I worked on where the applicant sought asylum based on fear of persecution by gang members in El Salvador. During the trial, the IJ agreed that he faced persecution and she told him, “I think you are in a terrible situation and I could not have more sympathy for you.” Nevertheless, she denied his case because a protected ground was not “one central reason” for his persecution (I litigated the case in the Fourth Circuit where we lost). I was (and am) curious about how an IJ can square her feelings of sympathy towards an applicant–and her belief that she may be sending the applicant back to his death–with what she views as her duty to enforce the law.

Overall, I thought Judge Yarbrough’s book was a very worthwhile read. If you practice asylum law, you will enjoy reading about the system from the IJ’s point of view. Also, if you are like me, you will find some schadenfreudian (if that is a word) pleasure from reading the Judge’s descriptions of certain government and private attorneys (though she is too polite to name names). If you are not familiar with the asylum system, the book will provide an interesting and entertaining introduction to the people who come to our country for refuge and those who decide their cases.

You can see more reviews of Bench Pressed and buy the book here.

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One Hell of a Monday

by Jason Dzubow

Last Monday was a busy day for my family and me. Originally, I planned to attend an asylum hearing for a Burmese client in Virginia and to send another attorney (Ruth Dickey) to cover an Eritrean asylum case in Baltimore. At the same time, my wife and I were expecting our second child on Tuesday. Since our first born arrived late, and since the doctor seemed to think Number Two would follow a similar pattern, I hoped to complete both cases and then focus on the family.  Of course, nature takes its own course, and things did not work out as I planned.

When a new baby arrives, hijinks are sure to ensue.
When a new baby arrives, hijinks are sure to ensue.

Early Monday, my wife’s water broke, and we were off to the hospital. I figured the Eritrean client was in good hands, and I left a message at 2:00 AM for the court clerk in the Burmese case stating that I would not be able to attend the hearing that day. I figured the Immigration Judge would understand, and I already gave the client a letter to present to the IJ in case the baby arrived early.

Labor progressed through the morning, and at some point I learned that the Eritrean client received asylum. The DHS attorney was fairly satisfied with the case we presented, and only asked to hear about the client’s journey to the U.S. So after a short direct and cross, focusing basically on the client’s travel, DHS agreed to a grant (and so did the IJ). (Congratulations to Ruth on a job well done).

More surprising news came later. I managed to reach my Burmese client, and I told her that I would not make it to court after all. I assumed that we would receive a new court date, and I would try the case at that time. I must admit that I wasn’t thrilled with this option. Country conditions in Burma have been improving, which is great for Burma, but not so great for Burmese asylum cases. A delay might result in a weaker case. Also, delays can be very long, and this client had already been waiting for almost two years for her day in court. But clients, like new babies, have minds of their own. My client did not want to wait for another court date, and so (unbeknownst to me) she told the IJ that she wanted to proceed with her case without me. Like the Eritrean case, the Burmese case was fairly strong, and DHS was mostly convinced that asylum should be granted. So the DHS attorney cross examined the client about her case, and in the end, agreed to a grant.

I suppose the lesson is that most asylum cases are won or lost prior to court. If the DHS Trial Attorney is presented with a strong case and is convinced that the respondent qualifies for relief, odds are good that they will agree to a grant of asylum. And when DHS agrees, the IJ will almost certainly follow suit.

So, the final results for Monday: Two asylum grants and one new baby girl (who is hanging out with me as I type this). Not a bad day’s work, if I may say so myself (and yes, I suppose some credit goes to my wife for the baby and to Ruth for litigating the case in Baltimore).

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The Seven Habits of Highly Annoying Immigration Judges

by Jason Dzubow

Well, I’ve dissed immigration lawyers, asylum-seeker clients, and the BIA, so I might as well offer my criticism of Immigration Judges. Of course, this comes with the usual disclaimer: None of the IJs that I appear before have any of these annoying habits. But I have heard speak of such problems from other lawyers (terrible, terrible people), so please blame them for this list. If you need names and addresses, email me offline. With the shifting-of-the-blame thing out of the way, here is the list:

7 – Changing Court Dates: I suspect that most immigration attorneys have a schedule best explained by Chaos Theory – Make a small change to the delicate balance in our calendars and things fall apart. Obviously, IJs sometimes need to postpone (or advance) hearings. The problem comes when hearing dates are changed without checking with the attorney first. This potentially creates scheduling conflicts for the lawyer, who must then file a motion to change the court date. This can be stressful and time consuming (and it might add to the client’s expenses). The better approach is for the clerk to contact the attorney prior to changing the court date. In my experience, when this happens (rarely), it is done by phone. Perhaps it would be easier for the clerk to contact the attorney using a new technology called email. This would be more efficient for all involved, as attorneys could avoid motions to re-schedule and IJs would not have to deal with such motions. 

Mocking litigants is generally considered an annoying habit (even if they deserve it).
Mocking litigants is generally considered an annoying habit (even if they deserve it).

6 – Double Booking: This issue is less of a problem these days, at least in my home courts. But there was a time when my Individual Hearings were commonly double booked. This meant that we prepared for the hearing, went to court, waited (sometimes for hours), and were then told to go home. Given client stress and attorney time wasted, I am glad that double bookings have become more rare.

5 – Denying Cases: OK, I really shouldn’t complain about this, as it is part of an IJ’s job. But it is kind of annoying.

4 – Failing to Rule on Motions: I understand that IJs are busy people. But if IJs could rule on motions in a timely manner, it might increase overall efficiency. Pleadings can be done by motion, thus reducing crowds at Master Calendar Hearings. Issues for trial can be narrowed, making trials less time consuming. Some cases can be resolved completely by motion. You get the idea. The problem, however, is that since IJs cannot be relied upon to rule on motions in advance of the hearing, it is not really worth the attorney’s time to write the motion (and then spend more time repeatedly calling the court to ask whether the motion has been granted). If IJs consistently responded to motions in a more timely way, lawyers would file more motions, and cases might be resolved in a more efficient manner.

3 – Stopping the Asylum Clock: As I have written previously, the rules governing the Asylum Clock are–to put it diplomatically–ridiculous. Different IJs interpret the rules differently. Some IJs interpret the rules restrictively and some even appear to make an effort to prevent the respondent from obtaining a work permit. Given the long waiting periods for these cases, aliens suffer great hardship when they do not receive a work permit. Unless the alien is engaged in egregious and purposeful delay, IJs should err on the side of keeping the Clock moving and of allowing asylum seekers to obtain their work permits.

2 – “Egalitarian” Master Calendar Hearings: Most IJs give priority to aliens who appear with an attorney at the Master Calendar Hearing. Of course, I am an attorney, and a somewhat impatient one at that, and so I do not like waiting around during a MCH. But there are more legitimate reasons for prioritizing represented respondents. First, respondents who are represented usually take less time during the MCH than unrepresented respondents. So more people will get done more quickly if represented aliens go first. Second, while most immigration lawyers do not charge by the hour, some do. Therefore, it is more expensive for some respondents to have their attorneys wait around for their turn at the MCH. Third, even those lawyers (like me) who do not charge by the hour might charge an extra fee for MCHs before IJs who are known to be slow (I have not done this, but I have considered it). If lawyers are more expensive, it is more difficult for aliens to retain us. Thus, when IJs do not have efficient MCHs, it potentially creates an access to justice issue for aliens.

1 – Showing the Proper Level of Respect: Notice, I did not say, “Showing Respect.” Sometimes IJs are not respectful enough to immigration lawyers; other times, they are too respectful to us lawyers. While I certainly believe that IJs should err on the side of being respectful to everyone in the courtroom, they do sometimes allow lawyers to get away with a bit too much. Oft times, alien respondents are not aware that their lawyers are unprepared or incompetent. When such behavior is egregious, IJs should point out the problem to the alien (and potentially to the bar association). Further, unprepared attorneys waste time at Master Calendar Hearings and cause delay for everyone else. There is no need for IJs to respect such behavior. On the other hand, some IJs run their courtrooms by bullying and demeaning attorneys (DHS attorneys and respondents’ attorneys). Obviously, this is inappropriate and, for the most part, ineffective. Good attorneys are sometimes unprepared, and sometimes make mistakes. It is harder for lawyers to do our best work when we face disrespectful comments at the slightest misstep. That said, while disrespectful IJ behavior can be a problem, it seems to me that such behavior is (fortunately) pretty rare.

Well, there you have it. While some IJs have bad habits (or so those nasty lawyers tell me), most IJs that I have encountered are hardworking, diligent, and fair. As we (hopefully) prepare for a major immigration reform, it is important to appreciate the positives about our immigration system and the legal protections we offer non-citizens. It is also important to appreciate the Judges and others who make that system work.

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There Is No Such Thing as a Tough Immigration Judge

by Jason Dzubow

A recent article in the Sun Sentinel (Broward County, Florida) got me thinking about what it means to be a “tough” Immigration Judge.

Judge Ford, pictured here at his Senior Prom.
Judge Ford, pictured here at his Senior Prom.

The article discusses Judge Rex. J. Ford, who will be celebrating (if that is the right word) 20 years on the bench this April. According to the Sun Sentinel, “In 96 percent of the 2,057 proceedings Ford completed in fiscal 2011, he ordered the person removed from the country.” Judge Ford told the paper: “I follow the book and I don’t get reversed.” The article also notes that Judge Ford is a registered Republican who “garnered attention in 2008 with the release of a U.S. Justice Department report that named him as playing a role in recommending the appointment of immigration judges based on their political leanings.” Judge Ford denied that he considered party affiliation in advocating for specific job candidates.

First, I suppose the Sun Sentinel mentions that Judge Ford is a Republican because Republicans are considered “tougher” on immigration than Democrats (this, despite the fact that President Obama has deported record numbers of illegal immigrants during each year of his Administration). I can’t help but think that this is an unfortunate stereotype–at least to some extent. Maybe I will write a post about that subject in the future, but for now, I will just note that Judge Ford was appointed during the Clinton Administration. In this post, I am more interested in how we decide which IJs are “tough.”

The most objective measure of an IJ’s “toughness” is his asylum denial rate, which can be found at TRAC Immigration, a website affiliated with Syracuse University. The toughest Judges are the ones with the highest denial rates. By this measure, Judge Ford is pretty tough. Of the 256 IJs examined by TRAC, only three deported people at a higher rate than Judge Ford. Does this mean that he is tough? Or does it mean that he doesn’t know what he is doing? Or something else?

Whenever a judge’s denial rate deviates significantly from the mean, it raises a red flag. In Judge Ford’s case, his denial rate of 93.3% is much higher than the national average of 53.2%. But I think it is more important to compare his denial rate with the local average. Why? Because local factors significantly impact denial rates. In Judge Ford’s case, the aliens he sees are all detained. Denial rates for detained asylum seekers are much higher than rates for non-detained aliens. In part because such aliens are less likely to be represented by attorneys and have a more difficult time gathering evidence, but mostly (I think) because such aliens often have no valid defense to removal, and so they tend to file weak (or frivolous) asylum claims as a last-ditch attempt to remain in the United States. Also, many detained aliens are ineligible for asylum due to criminal convictions or the one-year asylum bar. Comparing Judge Ford to his local colleagues, his denial rate does not seem particularly unusual. The denial rate for other IJs at Miami’s Krome Detention Facility (where Judge Ford is listed on the TRAC website) is 89.8%. So while Judge Ford is probably not an “easy” judge, if he were relocated to a different court, with a non-detained docket, I bet that he would grant a lot more cases.

Speaking more generally, where an IJ with a non-detained docket denies asylum cases at a significantly higher level than his local colleagues, I don’t see that as a sign of “toughness.” I see it as a failure to properly apply the law. The INA, the CFR, and various precedent decision from the BIA and the federal courts provide guidance to IJs about how to make decisions. They set forth how to determine if an alien is credible (consistent testimony and submission of reasonably available evidence). They define “persecution,” nexus, and the different protected grounds. In reaching a decision, an IJ is obliged to follow these laws; he is not permitted to “go with his gut.” In my experience, most IJs do their best to follow the law. Therefore, if one IJ stands out in terms of her denial rate (whether it is too high or too low), something is wrong.

In deciding an asylum case, it is not the IJ’s job to be tough or easy; it is her job to analyze the facts in the context of the law. Where an IJ’s denial rate differs significantly from the local average, it may be a sign that the IJ is not following the law. In such a case, the IJ’s supervisors should determine what is happening and whether additional training or some other corrective action is necessary.

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