Part of the mission of the National Institute for Trial Advocacy (NITA) is to promote justice through effective and ethical advocacy as a means of improving the adversarial justice system. We believe in due process, adequate representation, and access to justice for everyone, including immigrants who wish to remain in the U.S. NITA supports the immigration position of the American Bar Association:
The ABA supports measures to improve the immigration court system and to increase due process safeguards, including access to counsel, for those in removal proceedings. The ABA opposes mandatory detention of those in removal proceedings, supports alternatives to detention, and supports strengthening the ICE National Detention Standards and promulgating them into enforceable regulations. The ABA supports comprehensive immigration reform that promotes legal immigration based on family reunification and employment skills and that provides for new legal channels for future workers, a path to legal status for much of the undocumented population currently residing in the United States, and enhanced border security.
In response to an article that recently appeared in The Washington Post, The Legal Advocate asked Losmin Jimenez, Project Director and Senior Attorney for the Immigrant Justice Project at Advancement Project, to explain the impact on due process and access to justice on persons appearing before such a tribunal, should the DOJ proposal go into effect.
Shortly on the heels of the presidential inauguration in January, the Trump Administration issued Executive Orders 13767, 13768, and 13769 delivering on its promise of ramped-up enforcement on immigration matters. Some of the Administration’s enforcement measures include limiting the number of refugees and other foreign nationals from Muslim-majority countries. In September 2017, the Administration rescinded Deferred Action for Childhood Arrivals (DACA), impacting the lives of 800,000 Dreamers and their families. DACA was originally instituted in a memorandum from the Department of Homeland Security titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” in 2012 under President Obama.
The current immigration system is experiencing a seismic shift. One such development is a Department of Justice (DOJ) proposal to use “numeric performance standards”[i] and “establish performance metrics for immigration judges.” It is in this vein that this blog post provides a brief discussion on the current status of immigration court and outlines the likely impact these proposed measures would have on 1) due process and access to justice for immigrants seeking protection in the U.S. and 2) those fighting deportation to remain with their families in the U.S.
The Immigration Court system is referred to as the Executive Office for Immigration Review (EOIR), an agency within DOJ. Immigration judges are appointed by the U.S. Attorney General; thus, immigration judges are DOJ employees. Immigration judges are administrative law judges who do not have the same protections, such as life tenure, as members of the federal judiciary. However, the National Association of Immigration Judges (NAIJ), a voluntary organization, is designated as the recognized representative for collective bargaining for all immigration judges.[ii]
At the end of September 2017, the Immigration Court backlog had grown to 629,051 cases.[iii] This number may prompt one to ask, “How is this possible?” Over the last decade, the immigration courts have been severely underfunded in comparison to the exponential increases Congress has provided for immigration enforcement. Case in point: the budgets of the U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection exceed $20 billion.[iv] In contrast, the budget for EOIR is estimated at $420 million. [v] To provide scale of the disparity in funding, consider the Baltimore Immigration Court, the immigration court for all respondents in immigration proceedings residing in Maryland. This court has five immigration judges tending to, at present, 23,074 pending cases.[vi]
Meanwhile, armed conflicts, natural disasters, gender-based violence, and other root causes for migration have resulted in 66.5 million forcibly displaced people worldwide, and of these 22.5 million are refugees.[vii] Consequently, thousands of people, especially women and children, have sought asylum in the United States in recent years.
Adding to this underfunded and overwhelmed court system is the fact that respondents in immigration court have a right to be represented by an attorney in immigration court, at no expense to the government;[viii] there is no right to appointed counsel in immigration proceedings, even if the Respondent is a child. Approximately 37 percent of immigrants nationally and 14 percent of immigrants in detention have counsel.[ix]
As every judge and trial lawyer knows, pro se litigants slow things down for the court—yet, pro se litigants have a right to procedural due process and must be afforded some opportunity to present their case. At a master calendar hearing, which is a respondent’s first hearing in immigration court, respondents often appear without an attorney and, if English is not the language they know best, participate in the hearing with the aid of a court-provided interpreter. Respondents almost always request a continuance to secure pro bono counsel or a private attorney. For those respondents who managed to secure counsel prior to the first hearing, counsel will often ask for a continuance while they wait for documents from the respondent’s home country to arrive, begin to evaluate case strategy, and await documents from the client’s Alien File in the custody of the government.
Challenges for due process in immigration court are even more complex for detained immigrants. Detention centers are sometimes in remote locations, far from respondents’ families, removed from immigration lawyers and pro bono counsel, and provide prohibitive telephone costs just to communicate with a loved one or a lawyer. The law library at a detention center may be comprised of several immigration law books in English.[x]
In my experience representing immigrants, I recall a time in 2011 that an immigration judge in a detention center told an unrepresented Honduran woman seeking asylum that she needed to complete the asylum application in English and that she needed to have some documents translated from Spanish to English by a competent translator, as required by the Immigration Court Practice Manual.[xi] This unrepresented woman did the best she could and found a fellow detainee who spoke her native Spanish and a Spanish-speaking detainee translated the documents for the pro se Respondent.
Was the translation accurate? Did the unrepresented woman have a choice? What if she spoke Amharic, Mam, or Nepali—would she have been able to find a fellow detainee to translate documents from her home country? What about issues of confidentiality? Where do unrepresented, detained immigrants find counsel and translators?
It would be unfair to initiate deportation proceedings against an immigrant, detain him, not provide him an attorney, not allow him time to try to secure pro bono counsel or a private attorney, and not allow him sufficient time to gather evidence for his case. What about when a three-year-old facing deportation shows up to Immigration Court without a lawyer? Granting a continuance is the only sensible and human thing to do. An immigration judge would, and should, grant a continuance to a person whose life is at stake and where she may be returned home to face religious persecution, torture, or death.
If the DOJ proposal to establish performance metrics for immigration judges is approved, immigration judges will be forced to grant fewer continuances, rush through an already crushing docket, and decide cases in which respondents are more likely to be pro se and without all of the evidence necessary to present their case. This will result in more respondents being deported from the United States without, in contravention of existing human rights obligations, first having a meaningful opportunity to be heard.
It is easy to see how the immigration court backlog has come into existence. It naturally follows that establishing performance metrics for immigration judges is not a solution. Immigration judges should be focused on the facts of the case and be provided with sufficient time and resources to afford due process to those who appear before them. They should not be under the threat of metrics and numeric performance standards to evaluate their performance. The legal profession must push back against this proposal by the Trump administration.
Losmin Jimenez is currently the Project Director and Senior Attorney for the Immigrant Justice Project at Advancement Project, a next-generation, multi-racial, social justice organization. In this role, Losmin works to advance immigrant justice as a part of the broader struggle for racial justice. Previously, she was a Litigation Attorney at Americans for Immigrant Justice (AI Justice) in Miami, working on impact litigation, appeals, policy, and advocacy defending the basic human rights of immigrants. This summer, Losmin wrote about immigration relief for unaccompanied minors for The Legal Advocate. Her free studio71 webcast, Introduction to Immigration Advocacy—Overview of Humanitarian Relief, is available on demand.
[i] Maria Sachetti, Washington Post, “Immigration judges say proposed quotas from Justice Dept. threaten independence,” Oct. 12, 2017, https://www.washingtonpost.com/local/immigration/immigration-judges-say-proposed-quotas-from-justice-dept-threaten-independence/2017/10/12/3ed86992-aee1-11e7-be94-fabb0f1e9ffb_story.html?utm_term=.c10b81209fe7.
[iii] See Backlog of Pending Cases in Immigration Courts as of September 2017, Transactional Records Access Clearinghouse (TRAC) at Syracuse University, http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php.
[iv] Department of Homeland Security Budget in Brief, Fiscal Year 2017, https://www.dhs.gov/sites/default/files/publications/FY2017BIB.pdf.
[vi] See Individuals in Immigration Court by their Address, Transactional Records Access Clearinghouse (TRAC) at Syracuse University, http://trac.syr.edu/phptools/immigration/addressrep/.
[vii] United Nations High Commissioner for Refugees (UNHCR), Figures at a Glance, http://www.unhcr.org/en-us/figures-at-a-glance.html.
[viii] Immigration and Nationality Act, 8 U.S.C. § 240(b)(4)(A).
[ix] Ingrid Ealy and Stephen Shafer, American Immigration Council, Access to Counsel in Immigration Court (2016), https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.
[x] Author’s personal knowledge from visits to an immigration detention center as an attorney.
[xi] EOIR, Immigration Court Practice Manual, Filings with the Immigration Court, § 3.3 (a), https://www.justice.gov/eoir/office-chief-immigration-judge-0.
This month, “Asked and Answered” went straight to the top to put someone in the hot seat: NITA’s own Executive Director, Karen Lockwood—and not a moment too soon, either. After a successful, gratifying career as a D.C. trial lawyer and five years guiding the tiller at NITA, Karen will be retiring at the end of this month. With her interests wide-ranging and her to-do list extensive, Karen is a veritable Renaissance woman who’s saved the best years for last. If she’s anything like the other adventuresome sorts we’ve all known throughout our lives, she will be even busier in her retirement than she was during her years hard at work. We hope you’ll join us in thanking Karen for her service and great “NITA-Love,” and wish her an abundance of joy, rest, play, and good health in the coming years. (And Karen, don’t be a stranger, ok? NITA loves its volunteers!)
What accomplishment during your five years as Executive Director made you happiest?
Do I have to decide? We did many things in those five years, focusing on NITA’s strength. So it gets hard to isolate the “most happy.” But here is my answer. I chose three principles for the theme of my first annual meeting of NITA’s Program Directors: Quality, Content, Engagement. They were right for that time—happy enough. Even more happily, they have remained central to who NITA is today, why we excel through change, and how we will excel into the future. But most happily, it turns out that I can continue to be happy about them: the staff embedded those as the Core Drivers in NITA’s 2017 Operating Plan. They live on in the 2018 Operating Plan as well. An Executive Director strives to focus on our truest needs and strongest imperatives, and it is gratifying that these imperatives continue to inspire.
Can you talk a bit about the trial work you did in D.C.?
My commercial trial practice included trials, federal appeals, and SCOTUS briefs. I love this practice! If you think about a giant hotel burning on New Year’s Eve, with deaths and rooftop evacuations (arson, Puerto Rico), IBMs designing and building its first semiconductor plant (fast-track design, Burlington Vermont), the value of the eastern railroad properties that the U.S. carved up to create Conrail and Amtrak (trial before a remote, one-time federal court), and trial-testing a merger of the four largest drug wholesalers into two, then you have an idea of some of my most visible cases. Think of an amicus brief on handicap accommodations on cruise ships (for winning side, SCOTUS), Medicaid for persons with disabilities (Texas, Fifth Circuit), and child support/divorce repping an indigent mother (D.C.), you have an idea of my pro bono work. Starting with posing the questions in two-week expert depos in my first year, moving to my first jury trial for four weeks as lead, it has been learning-by-doing. Learning early—but not too early—from NITA built a strong base for courtroom instincts and conference room foresight. That was the right way to do it!
How did it lead you to meet “The NITA Tribe”?
You know that I talk about us as the most inclusive tribe in the U.S. And yes, that is exactly how I met NITA. A colleague who started practice with me at Hogan—he after his clerkship and I after my JD—waltzed into my office that first year and asked, “When are you taking your NITA program?” (It was 1978.) “What is NITA?” I responded. There began my anticipation. I got ready, with some deposition and trial work already accomplished. It was up to me and timing was perfect.
The Tribe took it from there. Progressively, a suggestion that I teach, an invitation to fill in as faculty at a custom program, a formal invitation to join the deposition faculty, then onto the faculty roster and eventually program director of the D.C. Trial Program. It was like a drumbeat of learning/teaching/loving NITA. No matter how busy, my vacation plans always started with the NITA commitment. When the Executive Director position came along, it continued to be NITA-Love.
That is still how you join in. It starts with taking a program. Meeting us. Joining us.
What do you think you’ll do on your first morning of retirement?
Run and lift weights, for as long as I wish instead of as long as I have! Follow with a hot protein breakfast. If weather holds, fill the gas tank, pick up a friend, and explore parts of the Front Range I have not seen yet. Ahhh . . . sounds good to us all, I’m sure!
Looking farther down the road, what opportunities are you most looking forward to in your retirement?
I thrive on making change, for communities and professions. Retirement is often described to be when one can “volunteer.” But I see it differently. It is that period when the 99 things you would like to have done along the way are open for you to pick up and do. Some 14 of those 99 things are still on my mind. So I’m looking forward to making a difference in the lives, politics, and hope of people. That may touch diversity training; women professionals striving for success; non-profits and small businesses; democracy and the courts and the vote; students from high school on who may love NITA someday; and avocations like singing, fiber arts, cooking, and fun with family. (That is 9 of 14!). I have no idea how they fit together. But I will take them on as a retired person bringing new ideas to the table. It starts with three months to gaze without decision or plan at how they intersect, what is possible, and how to start. Sound like fun? Keep in touch: Lockwood.Karen@gmail.com.
You’ve got a fiber arts workshop set up in your garage at home. What exactly is that, and what do you do? (I know: “Objection, compound question.” #sorrynotsorry)
Yeah, you know those three months? I will set up and dwell in that creative studio. The loom still bears a tartan plaid I warped onto it a number (ahem) of years ago. Fabrics for costumes and more sit in the attic back at my Shenandoah Valley farm. The skill of tatting is in notes written to my grandmother’s description. (Ok, I probably will never “tat.”) Get to work, Karen! What better way to let the brain settle and ambitions meld for three months?
What was your dream job as a kid?
Looking back, every dream revolved around changing things for the better, writing, and connecting with smart people. Thanks to distant relatives’ stories about China, there was the early embodiment of “I want to be a missionary,” but I figured out that was a child’s vocabulary. (May I go beyond the “kid” in your question?) In high school, it was journalism, thanks to many 2 a.m. nights as the high school newspaper editor, getting to decide how bold The Tunlaw could be in 1967–68 (so much material at hand!!). The odds of making a living seemed better with medical school, since I entered college with a jump on science and math. Finally, Urban Studies off-campus, plus Kent State (near my Ohio college), cemented my focus on law.
We lawyers make change. We write. We connect with smart people. Voilà! What luck for me.
During what moments in life do you feel most at ease and in your element?
Laughing with fun and daring people, sharing stories, and challenging each other!
What is one activity you do every day without fail?
Eat. At least one square meal. (Awaiting your question about a certain drink.)
People are surprised that you . . .
Sing in a choir, play classical piano, and cry at symphonies.
How would you spend a million dollars?
Start an awesome non-profit that educates communities to engage with each other in teaching why democracy works. Education. Freedom of speech. Talking with those “unlike” us.
If you could have any superpower, what would it be?
Omnipresence! (Wow, that feels sacrilegious.) (Web 3.0?)
What could men learn from women?
Wisdom. That is, self-restraint of the type that observes, encourages others to contribute, balances, and thus leads with the future in mind. (P.S., I am a woman.)
What could women learn from men?
Aggression. That is, “using power,” which really amounts to what can feel like aggression of the sort that might halt progress. We can figure this out, but it takes a few good women to lean in together. (P.S., I am a woman.)
For all of us—me, too—I would say we need to learn about the “other,” no matter the gender.
iPhone or Android?
iPhone. It made no difference that one of my law partners in the mid-’90s preached constantly about his “user-friendly” Mac. He demonstrated. He extolled. He bragged. We had to start meeting in my office to shorten the meetings. But when the second-gen iPhone promised entry into a connected system of computers and devices, I converted business and to the Apple platform. Still there. Still great. Still simple.
Coffee or tea?
Coffee. COFFEE!! Why do I have so many teas at home? Perhaps my friends are living by example, hoping to teach me better ways.
Early bird or night owl?
Both. Sometimes in seriatim, sleep being what it is.
Winter or summer?
. . . (thinking . . ) . . . Summer, I guess. The possibilities—fly-fishing, hiking, river trips, colorful vistas for photography, farm gatherings under a large maple tree with horseshoes nearby, laconic laughter into the night, movies shown on the wide white garage door . . . . (I can hear “Someone make her stop!!” among your readers!) But winter . . . . people willing to gather indoors to exchange their best selves. That, too.
Eat in or dine out?
Out! No matter how much we love to cook and bake, what’s better than dinner with friends and new menus?
Asking questions or answering questions?
Asking, for sure. First, to know what occupies someone’s attention in the moment. Second, to talk about something interesting to that person. It’s easy to think that one’s own thoughts are fascinating when we are (a) old (seasoned), (b) lawyers (hard-charging), or (c) well-traveled (with important friends). Truth is, our society is quite transactional—we connect with people who can get us something. If I want to make a difference in the moment, I try to start with questions immediately after “hello.” I constantly try to be better at this . . . .
Finally, what’s your motto?
If you build it, they will come.
This morning in Washington, D.C., NITA author and Fifth Circuit Judge Leslie H. Southwick met with United States Supreme Court Associate Justice Samuel A. Alito, Jr. to hand-deliver a signed copy of Winning on Appeal: Better Briefs and Oral Argument, updated this summer by Judge Southwick and Professor Tessa L. Dysart of the University of Arizona James E. Rogers College of Law.
Justice Alito shares a connection to Winning on Appeal not only for having written the Foreword to the new Third Edition, but also for his relationship with its original author, the late Judge Ruggero J. Aldisert of the Third Circuit. As a young lawyer, Justice Alito presented many a case before Judge Aldisert.
“Arguing before Judge Aldisert was the best (and therefore the most demanding) Socratic experience imaginable. Woe to the lawyer who was unprepared or, worse yet, tried to pull something on the court!” Justice Alito notes in his Foreword to the book. The two later became colleagues on the Third Circuit, sharing a collegial relationship on the bench that spanned fifteen years.
NITA is honored to have received Justice Alito’s valuable contribution to Winning on Appeal, and we thank Judge Southwick for arranging our introduction to the Justice.
Speaking of Judge Southwick, he also ran into Associate Justice Elena Kagan this morning. She, too, has received a signed copy of Winning on Appeal (not pictured) from Judge Southwick and Professor Dysart.
If you’re beginning to think you’re missing out by not having your own copy of Winning on Appeal, you can remedy that situation right now. We can’t promise that you’ll receive it signed and hand-delivered by one of the authors—but we do guarantee you’ll learn the “nuts and bolts” of how to prepare an effective brief and pick up on the nuanced art of delivering a persuasive appeal to the court. Judge Southwick and Professor Dysart’s update is replete with dozens of interviews with leading appeals judges and practitioners, treasured guidance from a bona fide who’s who of appellate advocacy in America. We think you’ll agree it’s the perfect blueprint for any lawyer who wants to win on appeal.
Philadelphia appellate lawyer Howard J. Bashman recently reviewed Winning on Appeal: Better Briefs and Oral Argument, a longtime NITA classic whose third edition was released just in time for the new school year this fall.
In his article for The Legal Intelligencer, Mr. Bashman discusses his personal history with Winning on Appeal and why, twenty-five years after its initial release, the book remains one of the leading practical guides to effective appellate practice:
Because a party’s appellate brief(s) ordinarily play the most significant role in the outcome of any appeal, approximately two-thirds of the book is devoted to planning and executing a well-written and persuasive brief. The remainder of the book focuses on preparing for and delivering the oral argument of an appeal. If you think that you are someone who already knows all there is to know about these subjects, then you are probably most in need of what this book has to offer. And it almost goes without saying that if you realize your skills as an appellate advocate are still capable of improvement, which is certainly something that is true for all of us, then this book unquestionably can provide helpful guidance and assistance.
In addition to furnishing advice and suggestions from numerous federal and state appellate judges, including Pennsylvania’s own Chief Justice Thomas G. Saylor, the book also contains advice from numerous, highly regarded appellate attorneys. I can’t think of any other appellate practice guide where one would find advice from attorneys Paul D. Clement, Seth P. Waxman, Miguel A. Estrada, Kyle Duncan (recently nominated to the Fifth Circuit), Peter Keisler and Scott Keller, to name just a few.
The original Winning on Appeal was written in 1992 by the late Third Circuit Judge Ruggero Aldisert. This new edition was meticulously updated by Tessa L. Dysart, Assistant Director of Legal Writing and Associate Clinical Professor at Law at the University of Arizona James E. Rogers College of Law, and Judge Leslie H. Southwick of the U.S. Court of Appeals for the Fifth Circuit. It brings readers flush into the modern, twenty-first century courtroom, where technology is melded with appellate advocacy, and is replete with dozens of interviews with leading appeals judges and practitioners about the nuts and bolts of winning on appeal. NITA’s veritable who’s who of appellate advocacy in America features a Foreword penned by U.S. Supreme Court Associate Justice Samuel A. Alito, Jr.
Mr. Bashman is a nationally known appellate lawyer who represents clients before the Third Circuit and Pennsylvania appellate courts. How Appealing, his wrapup of appellate news from around the nation, appears daily on Above the Law.
Note: Mr. Bashman was an advance reviewer of Winning on Appeal, and his praise appears in the book. The authors and NITA are grateful for his interest in and support of Winning on Appeal.
The NITA Foundation would like to recognize the generosity of a longtime supporter, the Kansas Bar Foundation. The organization recently awarded a $10,226 grant to the NITA Foundation to fund next year’s eighth annual Kansas Public Service Advocacy Skills Program. Under the grant, twenty-four attendees—comprised of Kansas prosecutors, public defenders, legal services lawyers, and other advocates for justice—will attend a three-day, NITA trial skills training at no cost to their respective agency.
The NITA Foundation and the Kansas Bar Foundation since 2011 have shared a great camaraderie as they worked toward their common goal of supporting legal service lawyers in Kansas through this program, which is held each year in October. Later this month, Judge William Ossmann will reprise his role as program director for the program, which will be held October 26–28 at the Steinberg Museum in Hays, Kansas. This program is funded by a Kansas Bar Foundation grant awarded last fall.
The Kansas Bar Foundation supports programs that provide access to the legal system for low-income Kansans, advocacy for children in need of care and victims of domestic violence. Funding also provides scholarships, educational materials and teacher training for public and private schools about the role of law and lawyers in society. Founded in 1957, the foundation is a 501(c)(3) charitable organization and is supported by contributions from individuals, corporations, and IOLTA. Click here to learn more about the Kansas Bar Foundation.