PLUS, BONUS POLICY ALERTS: nearly 87,000 comments submitted in opposition to the proposed asylum regulations; advocacy organizations sue to block new restrictions on employment authorization for asylum seekers; 7th circuit rejects Castro-Tum; 3rd circuit case remains pending; delays in printing green cards and work permits-dysfunction or strategic; DHS/USCIS delays widespread announced furloughs as Congress considers additional funding; border restrictions extended to August 20; ban remains on most temporary work visas and many immigrant visas as litigation challenges continue; DHS defies Supreme Court and Maryland federal judge, ordering the rejection of new DACA applications and associated work cards; limits renewals to one year
As “of counsel” and on behalf of Solow, Isbell & Palladino, LLC (SIP), welcome to the next of an ongoing series of blogs exploring a wide array of issues concerning the nation’s Immigration Courts. In this blog, I will describe how the Philadelphia Immigration Court (like so many others) has staggered into reopening, with limited scheduling, significant telework, and a lack of transparency and adequate engagement with stakeholders about this unfolding process. I will also offer some reflections from the National Association of Immigration Judges (NAIJ) Town Hall meeting on July 22, 2020.
As you probably know, officially, Philadelphia’s non-detained Immigration Court resumed hearing individual cases on July 6, 2020; so let me paint a picture for you of the current scheduling protocols, at least through August as the court remains in its phase 1 status. Keep in mind that the precise definitions and contours of each of the three phases are mysteriously unknown as is the threshold criteria for progressing through the phases. While we are told that the U.S. Attorney’s office is somehow involved, presumably with some level of consultation with the White House, there is no active and ongoing engagement with stakeholders, let alone any input solicited along the way.
Currently, the Philadelphia Immigration Court has six sitting Immigration Judges (IJs), with a seventh IJ yet to be appointed or least disclosed along with a start date. Three of the IJs will work per week while the other IJs are on telework. While working, in theory, each IJ could hear a maximum of two cases per day.
While on telework, the IJs will work from home on government-provided laptops; but I understand that there are not yet quite enough laptops for everyone. So what exactly can the IJs do at home while not hearing cases? Well, they can work on pending motions and decisions, unless a judicial law clerk has been assigned to work on the initial draft of a decision. Of course, most motions-continuances, changes of venue, consolidation, advance calendar, telephonic hearings, telephonic witnesses, waiving appearance of minors, joint motions, and other often undisputed motions can be handled quite quickly. There are infrequent contested motions to suppress and some disputes over removability; but essentially, the telework weeks do not seem to require full workdays.
Additionally, if IJs have been granted “reasonable accommodations” because of age (over 65) and/or certain health conditions, as I understand it, they have additional options while a court remains in phase 1 status, to include not working or arranging for more limited schedules than otherwise. At least for August and perhaps beyond, if these protocols continue, it will be essential for attorneys to regularly reach out to the court in an effort to elicit the specific schedule for each IJ. Ideally, of course, EOIR, both locally and nationally, should be communicating with stakeholders proactively.
As for master calendars, over four months of such hearings have been adjourned and there are no currently disclosed plans for future scheduling. There have been rumors suggesting dates perhaps in the fall, maybe telephonic hearings only, or some type of hybrid model, scheduling merits hearings where there is an application in the record, and a struggle regarding what to do with pro se respondents. However, as of now, it’s all speculation as the more than one million plus case backlog keeps growing.
But like the television ads for products (most of which you really don’t need) exhort, for a limited time only (election results aside), the Trump administration is now worsening the Immigration Court case backlog. If asked, the president might state: “It’s so easy, and only I, your duly elected President, have figured out a way to add several hundred thousand more illegal alien cases to that fake court (they actually get judges?) backlog.”
Rambling on, the president might continue: “So how did I, your stable genius president, come up with such an idea? Well, it just appeared to me (you know, it was like the opposite of a virus disappearing) with just a little help from my great American advisor, Stephen Miller. All we have to do to delay immigration benefits for those few illegal aliens who might remain eligible despite my heroic efforts to disqualify virtually everyone and delay hearings for people who probably don’t qualify for anything anyway (denying their continued work permits along the way) is the following. On just a few sheets of paper, we order the fake court judge to postpone (‘recalendar’) all those Obama-era low priority cases and add them to the old calendar. You get the idea? It’s like that virus testing that I keep trying to explain to everyone. With so many more cases, we find more aliens, smoke them out, and thus, more success- I win, they lose, and America is great once again. If we keep this up, maybe we can have two million cases soon or more. Who knows? What have you got to lose?”
Here’s the sad fact about the above thought process (though satirical) that could possibly underly the motivation for filing what will be (if not already is) thousands of motions to recalendar administratively closed cases. Given the political season, an obsession with reversing Obama-era policies, the racist/nationalist views of the president and many of his supporters, the influence of Stephen Miller, and the cognitive challenges our president struggles to confront with every issue that contains even a modest amount of nuanced complexity, this misguided policy shift makes perfect sense.
The goal, of course, is to stoke the president’s narrow base consistent with his nationalist inspired agenda. Moreover, the hope of the long game (assuming the president’s reelection) is rooted in the newly appointed IJs (with very few coming from private practice) and an increasing proportion of cowered incumbent IJs, along with restrictive regulations, and continuing Attorney General certifications and rewrites of appellate precedent decisions. The restrictionist vision is shorter hearings and large numbers of pretermitted applications for relief. Thus, the nominally exploding docket will gradually melt away as will the America we once knew, and which offered so many of our ancestors refuge and opportunity.
Shifting gears, here are some reflections gleaned from the recent NAIJ Town Hall meeting on Zoom. The Honorable Ashley Tabaddor, NAIJ President, offered opening remarks (and moderated) followed by other officers. There were a large number in attendance including sitting IJs, retired NAIJ members (including myself), representatives from AILA, the Legal Aid Society, and DHS/ICE. No one from EOIR management was in attendance.
The tone of the meeting was serious and dignified as the problematic state of the Immigration Court during the COVID-19 pandemic was reviewed. There was general agreement that in the past several months, we have witnessed a lack of adequate and ongoing communication between EOIR and NAIJ across a wide range of issues. Moreover, representatives from the government and the private bar were likewise in agreement with respect to the inadequacy of their communications with EOIR and dissatisfaction with some of the substantive policy initiatives leading to the reopening the non-detained Immigration Courts.
It was surprising, at least to some, to hear EOIR’s claim that decisions regarding the reopening of Immigration Courts are made by the local U.S. Attorney as guided by the White House
(again, Stephen Miller?). However, I personally suspect that at least the top leadership of EOIR, including its politically connected Director, James McHenry, are not as divorced from the details associated with the decisions to reopen as claimed.
Everything about the decisions to reopen and the mechanics of implementing the process is shrouded in mystery. How are the three phases defined precisely and are the decisions consistent with locally mandated orders? Why is Twitter the vehicle for communication and reasonable requests for collaboration ignored?
NAIJ’s greatest concern is the lack of transparency and assurances regarding the formulation and implementation of adequate safety measures. Of particular concern is the need to ensure adequate circulation and the use of proper filters, especially in sealed buildings with windows that cannot open.
When asked about such safety measures, EOIR’s unsatisfactory response has been to indicate that they are the responsibility of other government agencies such as GSA.
Another issue in some jurisdictions, in light of master calendars being placed on hold, is the advancement of individual hearings without warning in order to fill those slots. Fortunately, in Philadelphia, at least so far, that has not occurred and the local IJs have maintained their autonomy to manage their respective dockets. As a consequence, those open master calendar days for each IJ in Philadelphia (at least during the weeks they are working), represent possible opportunities for motions to advance calendar with respect to very strong cases.
Both NAIJ and representatives of the other organizations lament the end of the emailing system 60 days following the reopening of each non-detained court. There was also consensus that EOIR desperately needs a modern e-filing system like that which has existed in the federal courts for many years. From personal experience, the more limited and cumbersome ECAS system being rolled out by EOIR (but on hold for now during the pandemic) is not a long-term solution in its present form. Moreover, there have been high-level EOIR managers who recognized this fact and expressed their concerns about a premature rollout of a system that needed more work, only to be confronted with obvious political pressures from the Director’s office and perhaps from above.
Perhaps the most positive outcome from the NAIJ Town Hall meeting was the recognition by the judges, government attorneys, and those from the private bar that the COVID-19 pandemic has presented a unique opportunity to find common ground and unanimity of purpose. Hopefully, such a reservoir of goodwill can endure beyond the pandemic and lead to future collaboration on issues of mutual concern.
BONUS POLICY ALERTS:
Among the thousands of comments to the proposed asylum regulations, urging their rescission, were those from the union representing asylum officers among others. The union’s position is that these regulations will flout decades of case law, dismantle our carefully crafted system of vetting asylum claims, undermining America’s position as a global leader in refugee protection, and will narrow the definition of persecution in a manner deliberately designed to deny asylum applicants the protections required by law. Others filing similar comments included a group of 70 Members of Congress, the American Immigration Council, the American Immigration Lawyers Association, the Roundtable of Former Immigration Judges (of which I am a member), many other non-profits, and private law firms. The theme running throughout these comments is that the proposed regulations are inconsistent with the Refugee Act, our various treaty obligations, the overall intent of Congress as expressed by the content of statutes and, moreover, would completely abrogate the decades-long body of case law that has been developed over the past 40 years.
On July 21, 2020, several immigrant advocacy organizations filed suit in Maryland ‘s federal district court to block a new Trump administration regulation that will further limit the ability of asylum seekers to receive permission to work while their applications are pending. Disqualified completely are those who do not enter the U.S. at designated ports of entry unless they can show “good cause,” while others must wait a full year before being able to apply. The organizations have argued that the regulations are unlawful in multiple ways, including violating the Administrative Procedure Act and in failing to consider the impact on asylum applicants as well as the humanitarian purposes of the Refugee Act.
On June 26, 2020, joining the 4th circuit, Judge Barrett of the 7th circuit in Meza-Morales v. Barr, authored an opinion rejecting the Attorney General’s decision in Castro-Tum. Particularly strong was Judge Barrett’s analysis with regard to an IJ’s authority to administratively close cases. This critical issue remains undecided in the 3rd circuit. The pending case on point is No. 19-2681, Ramos-Padilla v. Att’y Gen.
In a bizarre addition to the nationalist inspired agenda to harm immigrants, in mid-June, the USCIS contract ended with a company that had been printing green cards and work permits. At the time, this left unprinted about 50,000 green cards and 75,000 work permits. The agency initially said that it had planned to manage the production of these documents in-house, but that its ability to do so had been limited by budgetary constraints. Now, of course, the prospect of possible furloughs may cause additional delays. Is this problem merely a result of unintended dysfunction or, more likely, is it yet another component of the administration’s mean-spirited anti-immigrant agenda?
DHS/USCIS has delayed for several weeks scheduled furloughs of more than 13,000 employees as negotiations with Congress continue following an uptick in revenue. The agency had previously warned of a significant budget shortfall in the current fiscal year, but then Democratic members of the Senate learned that USCIS would end fiscal 2020 with a budget surplus. Such furloughs, if they were to occur, would affect the production of work permits, including those for qualified respondents in removal proceedings.
On July 22, 2020, Customs and Border Protection (CBP) published a notice in the Federal Register of the previously announced agreements among the U.S., Canada, and Mexico to keep their borders closed to nonessential land and ferry crossings to contain the COVID-19 virus. Originally effective on March 21, 2020, the latest notice extends the restrictions through August 20, 2020.
The business sector has joined the fight against Trump’s work visa ban. On July 21, 2020, the U.S. Chamber of Commerce and various associations of manufacturers and technology giants urged a California federal court to strike down the ban on work visas, joining other litigants challenging these sweeping and unprecedented restrictions imposed allegedly to protect U.S. workers during the pandemic. This lawsuit follows on the heels of others, including the AILA legal challenge in D.C. federal court, targeting both the suspension of green cards and work visas.
DHS, through a July 28, 2020 memo by Acting Secretary Chad Wolf, has announced that effectively it will continue to defy and will not comply with the Supreme Court’s DACA decision which most scholars read as once again permitting new applications to be filed. Thereafter, upon an immediate request by the same immigrants who challenged the Trump administration’s decision to eliminate DACA in 2017, the 2nd circuit quickly certified the Supreme Court’s decision, thus returning the case to the district court “for further proceedings consistent with the Supreme Court’s opinion.” This follows the 4th circuit’s certification in a related ruling, after which a Maryland federal judge directed the Trump administration to begin accepting new applications for relief. Also pending is a case in the D.C. district court which received a similar mandate from the D.C. circuit. Subject to further court action and more explicit orders, only DACA renewal and associated work card requests will be adjudicated, but just for one year. Additionally, DHS will reject all pending and future advance parole requests absent exceptional circumstances. It is the DHS position, which it concludes is consistent with the Supreme Court’s decision, that while it is giving careful consideration to whether the DACA policy should be maintained, rescinded, or modified, it has the authority to make some changes to the policy to limit its scope in the interim.
Thank you for taking the time to consider the important issues and information discussed in this submission.
Hon. Charles M. Honeyman (Retired) joined Solow, Isbell & Palladino, LLC as Of Counsel in March 2020, after more than 24 years of service as an Immigration Judge. Following his retirement, Judge Honeyman has remained active in the field of immigration law through writing, speaking, teaching at CLEs, and offering strategic litigation counsel, and advising academic scholars conducting research on immigration-related topics. Judge Honeyman is a retired member of the National Association of Immigration Judges (NAIJ), a member of the prestigious Roundtable of Former Immigration Judges, and has rejoined AILA. Judge Honeyman is a member of the Maryland (active) and Pennsylvania bars and was formerly a member of the New Jersey bar.
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