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Immigration Court and Due Process—NITA’s Official Position

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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 In September 2017, the Administration rescinded Deferred Action for Childhood Arrivals (DACA), impacting the lives of 800,000 Dreamers and their families.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.

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[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.

[ii] National Association of Immigration Judges, https://www.naij-usa.org/about.

[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.

[v] EOIR FY 2017 Budget Request at a Glance, https://www.justice.gov/jmd/file/821961/download.

[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.

Kansas Public Service Advocacy Skills/NITA Program

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On October 26-28 NITA headed to Kansas in order to conduct a public service training which was funded by a grant from the Kansas Bar Foundation. This training has been conducted for many years and was once again led by NITA Program Director, Judge C. William Ossmann who worked alongside longtime NITA Faculty Mark Caldwell and Judge Robert McGahey from Colorado, as well Public Defender Jessica Glendening, Assistant United States Attorney Dustin Slinkard, and Criminal Defense Attorney Paul Oller. Together – this team trained a diverse group – 6 legal aid attorneys, 3 public defenders, 4 prosecutors, and 4 attorneys from the Attorney General’s office.

The faculty came from a variety of backgrounds which brought immense knowledge on trial skills to the training. Of the diverse faculty, one participant stated, “The faculty worked well together and I appreciated that their feedback and remarks had consistency.”

The trial skills training was held at the Sternberg Museum in Hays, Kanas. This three-day training included skills such as: direct and cross examination, analyzing exhibits, and opening and closing arguments – following the tried and true NITA Method.  One participant stated, “This course was fantastic and I was able to use the tips and tricks I learned that weekend as soon as I was back in the office on Monday. I already feel more confident going into court because I am following the steps NITA laid out for me.”

Furthermore, Program Director C. William Ossmann stated, “It was rewarding to see everyone using their time together to improve their trial skills to benefit their clients, no matter where they might be seated in the courtroom.”

The Kansas program shifts year to year from eastern Kansas to western Kansas and will return to Topeka in 2018.

Robert VanderLaan Scholarship Memorial – Saturday, November 11, 2017

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On Saturday, November 11th, many gathered to honor and celebrate the late Robert Vanderlaan who dedicated 35 years of his life as a NITA faculty member. NITA Program Director Dan Rabinovitz and faculty member Jon Barnard helped to create a NITA program scholarship in Bob’s name. Jon, Dan and faculty member Mike Kelly (pictured from left to right) were all integral in organizing the event which was held at Mike Ditka’s restaurant in Chicago, one of Bob’s favorite places.

“The evening was a smashing success. People came from across the country to honor Bob’s memory. Many stories were told – people laughed and cried. The evening concluded with live music being played that Bob always loved.”

Many attendees gave memorable toasts as well – sharing stories and memories of Bob. Pictured to the right is NITA Faculty Thomas Geraghty giving his toast.

The Robert Vanderlaan Memorial Scholarship is still receiving donations. For information please click here to read NITA’s full article on how to donate.

 

 

 

 

Deposition Advocacy NITA Public Service Program

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The National Institute for Trial Advocacy (NITA) joined forces with Keller Rohrback this year for a deposition advocacy program for public interest attorneys to be held at their Seattle office. The 21 attendees came from organizations such as ACLU of Washington, Columbia Legal Services, Northwest Immigration Rights, and more. The program took place October 13-15 and was led by Program Director, Rhonda Laumann, who is also co-program director for NITA’s Deposition Skills: Seattle program. Rhonda worked with Tana Lin, attorney at Keller Rohrback, to put together the NITA public service program which was met with great feedback by the attendees.

Attorney Tana Lin gives a lecture on defending depositions.

“It was fantastic. I appreciated the opportunity to learn from a diverse group of attorneys, as well as meet a lot of attorneys in the public interest field that I had not yet met. The focus on one main subject and the repetition was helpful in learning a completely new subject to me,” stated one attendee. Repetition has always been a key element of the NITA Method as our faculty work hard to give each attendee the opportunity to practice a skill, receive immediate feedback, and have multiple opportunities to practice.

The three-day training consisted of skills such as The Funnel Technique, beginning the deposition, information gathering, witness preparation, and more. During these three days, attendees were given the opportunity to practice and perfect these skills in a small group setting. Many of the attendees really enjoyed the format of the program as well as the guidance of the faculty.

Likewise, another attendee stated the training was, “Very comprehensive. Given the time, I felt a lot of topics were covered that are essential for taking depositions. I also thought the staff was great. A wide range of insight and valuable information.”

Not only did the attendees have positive remarks about the program, but Tana, who served as faculty while working hard to put the program in motion alongside Rhonda stated, “Many participants told me how the NITA training was sorely needed, how it gave them hope to be training together, and how it gave them the skills to be even better fighters for the vulnerable populations they serve that are being attacked more than ever these days.”

Winning on Appeal in the U.S. Supreme Court

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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.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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