NITA would like to give a special shout out to 15 of our faculty members who volunteered over 100 hours this year teaching at our programs. Thank you for your contribution to NITA!
Jayme Cassidy directs the Veterans Law Clinic and Legal Incubator at Nova Southeastern University Shepard Broad College of Law. Cassidy began teaching with NITA in 2004 and in 2017 she served as faculty on 8 NITA programs throughout the year.
Solomon Chang is an experienced trial attorney for the San Diego Office of the Public Defender. Chang has been teaching for NITA for two years and most recently was a faculty member at Building Trial Skills: Philadelphia.
Michael Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law in Fort Lauderdale since 1985. He has taught at over 100 NITA programs and this year, served as program director on 6 programs.
Stephanie Ledesma is the Assistant Professor and Director of Experiential Learning Programs at Texas Southern University Thurgood Marshall School of Law. Ledesma began teaching with NITA in 2010 and this year alone taught at 8 programs – serving as faculty, program director, and team leader.
Judge Bob McGahey has been a Denver District Court Judge since January of 2000 and has been an active member of NITA’s faculty ever since. In 2017 he taught at 8 NITA programs, most recently, Deposition Skills: Rocky Mountain.
Michelle Mendez is the Training and Legal Support Senior Attorney and manager of the Defending Vulnerable Populations Project at Catholic Legal Immigration Network, Inc. (CLINIC) Mendez began teaching with NITA in 2016 and has continued providing her skills on many public service programs in the immigration field.
Allison Rocker is the Senior Deputy District Attorney – Domestic Violence Prosecution Specialist at Rose Andom Center in Denver, Colorado. Rocker has been teaching with NITA since 2016 and most recently was a faculty member at Building Trial Skills: San Diego.
Judge Debra Seaton Chinaka was appointed to the bench on May 18, 2017 by the Illinois Supreme Court. Judge Seaton Chinaka has been been teaching with NITA since 2001 and most recently, volunteered her time to teach a public service program with the Office of the Public Defender in Lagos, Nigeria.
Tom Swett is a trial attorney in Louisville, Colorado and has volunteered his time teaching with NITA on over 85 programs since 2006. In 2017 alone, Swett taught at 10 NITA programs – serving as either a faculty member or program director.
Whitney Untiedt is a partner at Akerman LLP and the firm’s first Director of Pro Bono Initiatives. Untiedt began teaching with NITA in 2008 and has since taught at over 50 programs. Most recently, she volunteered her time teaching at the Deposition Advocacy Public Service Program.
Judge Michael Washington tried nearly 80 cases to verdict as a deputy public defender for 21 years before being appointed to the bench. Judge Washington has taught with NITA for the past 20 years and has volunteered his time at over 100 programs. Most recently, Washington served as faculty in a public service program with the Office of the Public Defender in Lagos, Nigeria.
Richard Werstein is at attorney at Werstein & Associates in Lewisville, Texas. Werstein began teaching with NITA in 2015 and has continued serving as faculty on many public programs. Most recently, he volunteered his time as a faculty member of Building Trial Skills: Dallas.
Judge Christoper Whitten is a general jurisdiction trial court judge on the Superior Court of Arizona. Judge Whitten has been teaching with NITA since 2005 and has taught over 70 programs throughout the years. Most recently he served as co-Program Director for Building Trial Skills: San Diego.
Judge Ann Williams is a judge at the United States Court of Appeals for the Seventh Circuit. Judge Williams has been a faculty with NITA since 1979, a NITA Trustee since 1996, and served as the NITA Secretary from 2005-2007. She has taught at over 100 NITA programs and most recently was the Program Director in Nigeria for a public service program with the Office of the Public Defender in Lagos.
Joleen Youngers is a civil litigator with Almanzar & Youngers, P.A. in Las Cruces, New Mexico. Youngers has served as faculty for a variety of NITA programs including: public, custom, and public service. Most recently, she served as faculty at a custom program, Hogan Lovells Expert Witness Deposition.
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.
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.
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.
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.
“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.”
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: