I want to discuss today what is going on at immigration court.
The new performance metrics.
I want to discuss how they can link over to what is going on
with regular green card applications,
and citizenship applications, and all sorts of applications
at the administrative level with USCIS.
I want to discuss, briefly, first the metrics.
Then at the tail end,
I want to share how these issues
can connect with and impact the issues
when you file for a green card elsewhere
and why you need to be urgently careful
when you go forward seeking immigration benefits.
So let's talk about the performance metrics.
They actually started, the idea started late December last year
and early January of this year
when the Attorney General, Jeff Sessions,
announced the idea of performance metrics for judges.
Performance metrics???
That idea does not sit well with immigration judges.
For obvious reasons.
They are being compelled to live up to a certain standard
set by the Attorney General
when everyone knows what happens at court
is up in the air every day.
You never really can predict what is going to happen in individual cases.
But the Attorney General wants to change all that.
The Attorney General wants to dictate the outcome.
What he said is that all cases in detention or custody
are priorities for completion.
That is not a surprise.
That has long been supposedly the aim of immigration law enforcement.
He has also said, however, that 85% of all non-status,
non-detained removal cases should be completed within 365 days.
By that, he meant that all cases where there is not a pending application outside the immigration court,
such as an application for permanent residency through marriage to a U.S. Citizen,
should be completed in 365 days in immigration court.
What he is saying is that we are going to rush things, we are going to speed things up.
And as I will explain in just a couple of minutes, even this provision
does not give immigrants as much hope as one would think.
The third metric, he said, is that he only wanted judges to have 15% of cases
sent back to the immigration court.
Meaning that someone would appeal or file a motion
to re-open or reconsider.
And they would rule favorably
the decision would be favorably against the ruling of the immigration judge.
He does not want more than 15% coming back to haunt the immigration court.
Now that is really a high standard.
He is saying to the judges,
"You can't make mistakes, you've got to make it air tight when you deport individuals
because I do not want anything coming back and having to be repeated in immigration court."
Well, it does not work that way.
But those are the performance metrics that the Attorney General is trying to impose on immigration judges.
They are due to go into effect on October 1st.
So we are just about 30 days outside of these performance measurements
being imposed on immigration judges.
I call . . . In addition, the attorney general has issued some new memorandums in the last 60 days.
I call them the three C's.
And really, they're not so much memorandums, but he is taking it upon himself
to issue rulings that are supposed to guide immigration judges.
The three C's are regarding continuances, closures, and completed cases.
Continuances happen often at immigration court when a party is sick, an attorney is sick,
when there's some evidence that has not been able to have been obtained
in time for the judge to hear it,
or for a host of other reasons.
And yet, the Attorney General is saying,
"No, we're not going to allow continuances so easily."
Administrative closures are like the big brother, the big sister,
of continuances in the sense that the immigration judge says,
"We are going to take this off calendar.
We are going to take this off because the parties before me have a good chance
to obtain permanent resident status,
say, through a son or daughter that is now 21 years old and a citizen.
Let's see how that turns out before they come back to immigratIon court where I have to adjudicate
and look at their case as to whether or not they merit relief
for having been here without documentation for X amount of years.
That is, in a nutshell, how administrative closure works.
He is trying to tighten that up.
In fact, he wants to reverse it backwards
in the sense that under the Obama administration,
administrative closures were not frowned on.
In fact, they were seen as a favorable way
of giving immigrant families the chance to have the immigrant members obtain legal status
through USCIS, through affirmative filings prior to the immigration judge making a final decision
whether to remove or deport that individual.
He wants to bring, Sessions wants to bring those cases back.
And that could be a problem.
Completed cases. As I said, he wants X amount of cases completed.
In a sense, those are quotas.
He is imposing quotas, and in December and January, he said that he wanted every judge to complete
700 cases per year. 700 cases per year in a 50-week period.
Now if you count the cases that might go real quickly,
those individuals with a long record of criminal convictions,
those with obviously not the time requirement to be here,
those cases might move quickly.
But that does not mean that such individuals do not have a fight.
In many cases, the criminal grounds can be attacked in a technical way.
In many cases, some of those convictions might be long ago
and they might qualify for relief that predates the Trump, the Obama, and the Bush administrations.
And so even in those cases that one would think are quick and simple,
they may not be. They may be cases that require a lot more time.
In that sense, we can say thank goodness to the Supreme Court
for the recent ruling on Notices to Appear on notice given to individuals
to go to immigration court, which are called Notices to Appear,
which I discussed a few weeks ago.
Because prior to the Supreme Court decision,
ICE and DHS had gotten in the habit of issuing notices to individuals to appear in court,
but not saying the date and time.
Now the Supreme Court said, "Wait a minute, they need a date and time."
So think about this.
With the need to put a date and time in, if the courts are already cluttered with a lot of cases,
how are they going to get an immediate hearing?
And in fact, they are going to have to slow down before they can put someone in court.
Which means, again, that Sessions just is not going to have it his way.
It is going to be a lot rougher on him and his attorneys
to move things as quickly forward as he would like to.
Well, just last week, Sessions upped the ante to 750 cases that he wants completed per year.
Let's look at the math. The math is this.
That is 15 cases per week.
A judge works 50 weeks a year. Divide that by 50 weeks.
That is 15 cases per week. That is three cases per day that Sessions wants completed.
Now let us assume that those are merit hearings-type cases.
Cases where you have to put together a bunch of evidence.
Say, cancellation removal. Or you are trying to prove hardship.
Then you are going to put witnesses on the stand.
You are going to have hundreds of pages of supporting documents.
What is Sessions saying? I want three of those completed a day?
And if he wants three of those completed per day,
that means each case only gets two hours and 40 minutes.
That is no time at all to put on a strong case.
Is he going to be forcing, then, attorneys to just submit evidence,
a proffer of what someone will say and say that's the only way
we're going to accept declarations from individuals?
Well,
that is not going to work either. I mean, I'm hoping it doesn't work.
And I'm hoping that every immigration attorney in America
puts up a fight on anything that smells like that in the future.
Now even if, let's say, Sessions gets his way. 750 completed cases per year.
Three per day. Well, that leaves all these other cases that are not going to be able to be handled.
Because the backlog at court right now is 700,000.
Some of you might recall many, many years ago I did a video on the backlog at immigration court.
It is still a popular video with the exception that some of the statistics are off.
Back at that time, and I was just starting to film any videos and write blogs at the time,
the immigration court was backlogged 350,000 cases.
And boy, the immigration bar, we thought, "Whoa, that is such a huge backlog.
There is s no way the judges can handle that many cases."
Well now, the number is 700,000. At least as of May. And it might be increasing since that time.
Back when I filmed my video, we knew that 90% of the cases ended in immigration court.
Meaning that win, lose, or draw, no one was challenging at a higher court.
It was over. And since the vast majority of cases are denials, and defeats, and removals,
that meant a whole host of people were not challenging it by going up the ladder,
to the Board of Immigration Appeals or the Ninth Circuit in California and other Circuits elsewhere,
to challenge the decisions.
Now the statistics showing it's 91%. So that needle has not moved much.
When I had filmed a video years ago, the estimate was that 57% of cases at immigration
court go forward without an attorney representing the immigrant.
A recent study that I saw said the number was now 40%.
I do not know if that is true because the statistics came out of the mouth
of a Los Angeles immigration court judge.
That may well be true in Los Angeles, because Los Angeles has a lot of programs
servicing immigrants at immigration court. But that may not be the nationwide statistic.
I do not know how close we are or far away we are from the former number of 57%.
But even 40% is a huge number. Even 40% is a large number of individuals
to be going to court every year without an immigration attorney.
I have always thought that was a recipe for disaster. And I do not know why that happens.
And in places like Los Angeles, where there are a lot of services helping individuals
who do not have the economic means to defend themselves, there are services reaching out to individuals
to try to give them some modicum of assistance to defend themselves.
Now, when the backlog was 350,000 cases at immigration court,
there were about 250 immigration judges.
So the average amount of cases per judge that were assigned was a little over 1200. 1243.
Now with the backlog at 700,000, there are now 100 more judges.
About 350. But what that means is that the backlog now is
that the backlog now is set at 2000 cases per judge per year.
So, okay, now let's look at Sessions' statistics.
750 completed cases taking all the time of the judges during the 50 weeks.
Well, what about the other 1250 cases they have waiting for them when they return to their chambers?
Boy, Sessions is so far out. I do not know how he can imagine
that judges can deliver under this kind of pressure.
But let's look at it another way. Okay. 350 judges, 7000 cases equals 2000 cases per judge.
Okay, now, let's look at the amount of hours that a judge has to work.
50 weeks per year, 40 hours per week, five days per week, how many hours is that?
It's 2000 hours. So you have 2000 cases for each judge and each judge has 2000 hours.
So how is this rushing by Sessions going to work?
The net effect, I think will be that there is going to be a lot more appeals.
The net effect is that the backlog is going to get even bigger
because I'm assuming the majority of immigration attorneys
representing immigrants are not going to roll over.
They are going to fight, and they are going to hold their ground,
and that is going to force more motions to be dealt with at immigration court,
more motions to be dealt with at the Board of Immigration Appeals,
and more cases taken up to the Ninth Circuit. It is going to lead to an even bigger backlog.
And then let's now talk, let's think about the extra law enforcement push
by Sessions and the Justice Department.
We know that they want to end the Temporary Protective Status program.
And we know come January there are a lot of programs will just start folding up.
Potentially, there are 200,000 new cases of individuals that are going to be without documents
that could end up being referred to immigration court.
In fact, when TPS ends, are they going to get a notice from USCIS saying,
"You now have to report to immigration court," and they are going get a Notice to Appear,
hopefully with the time and date on it, and that is going to backlog the courts even worse.
What about DACA? If DACA dies? If DACA does not survive,
are they going to put 400, 500,000 more individuals in immigration court
that have once received DACA benefits?
And as I noted, what about all those individuals who had received administrative closure
under the Obama administration?
A conservative estimate is 200,000.
If you were to add those numbers, you're talking about
800,000 new cases being sent to immigration court.
So the Sessions idea of rushing cases is to take all of those
and give them five minutes in court and get them out.
No, that's not going to work.
He is not going to be able to work as . . .
like when he took . . .
Remember he sent those judges to the border
for three weeks so that they could do cattle call deportations,
line up 10, 15 people at a time and try to deport them all at once.
And therefore, get his numbers up. Get more people out.
And maybe help judges hit their quotas.
No, that is not going to work. That is not going to work.
And if anybody has a client in one of those cattle call situations,
I would say attack it with a passion.
I once had a case where I had an individual came to me
years later, years later, 12, 13 years later.
And when I pulled the immigration records from immigration court and I made a copy of the tapes,
I found out it was a cattle call. And this person did not speak English.
It was clear that they had a big problem with due process.
That case got reopened and the individual eventually won permanent residency status.
But that is easily what could happen.
Immigration lawyers have to fight anything resembling the cattle call.
Immigration lawyers have to fight all of these new provisions.
They have to stand up and fight. And if you are on your own,
you have to stand up and fight. And if you have a lawyer, you have to make sure they stand up
and fight. Do not let Sessions get through with this.
Okay, so now let's get to the effects which is what I really, really wanted to get to.
The effects are pretty obvious. Look, there is not going to be enough time
for a judge to weigh the full evidence of cases under the Sessions plan.
There is not. And that is where immigration attorneys have to step up their opposition.
There is not going to be enough time between hearings,
for individuals, if they are going to rush and try to complete cases within one year,
to do an adequate job on really difficult issues like
developing the supporting evidence for an asylum case,
developing the evidence for something like a hardship case where you have to prove certain family
members are suffering an exceptional and extremely unusual hardship.
It is not going to happen within the time work. Whether it is one hour or it is two hours and 40 minutes,
it is not enough time. And the Sessions plan, I'm going to keep saying it again and again,
it is not going to work.
And lawyers, and immigrants, and family members, they have to stand up and fight
this and force the slowdown of the Trump train.
It harms judicial integrity.
And along that line, I'm glad to see that the National Association of Immigration Judges
is taking a strong stand and challenging Sessions and saying,
, "Wait a minute. We are not a law enforcement court.
We are not a quota driven body.
We are here to do just justice within the constraints of immigration law."
Now, of course, immigration law is driven by politics slanted against immigrants.
But you do not want it slanted even more with the help of Sessions.
And I'm glad to see immigration judges
taking that stand and standing up. It is a violation of their duty to do fairness.
It is a violation of their duty to do justice. It is a violation of their duty to do due process, fundamental fairness.
One judge speaking before Congress noted that between the period of February 1st to August 31st of this year,
it looks like about 78% of all cases individuals were deported or voluntarily deported.
Wow, that is a lot. 78%.
That is over three quarters. And you figure a certain percentage are unrepresented. Say 40%.
Then if there is a 9% appeal rate . . .
because if 91% of the cases stop at immigration court,
9% go on. I assume most of those are appeal type cases.
That alone would be 6,000 cases going up to the BIA.
And the BIA cannot handle it either. They do not have the manpower to handle 6,000 new cases.
And that is just one court, albeit one of the largest courts.
And one of the other points that is really significant here
is that 15, only 15% of immigration court cases do not involve a translator.
You have all of these cultures coming in.You are telling people to rush. They do not even understand the rules.
You are not giving them enough time to get the evidence.
Then you are going to have translators trying to explain all this. It's a mess.
Immigration court is a mess and it is going to be a bigger mess.
And unfortunately, justice is demanding that we fight it, which might even
make it an even worse mess.
Anyway, okay, here is where I wanted to go. With those who are applying outside of court
which is called in the immigration court parlance "a collateral matter"
which is what, why, the judges do not want to give continuances, because "If you have a collateral matter,
you have a green card.
Well, I do not know when USCIS is going to get to your case so let's just let this end right now and right here."
That is a real issue. That is a real issue.
But even worse, I want to take it from the other side. You apply for a green card.
You are married to a U.S. citizen.
Maybe you have been grandfathered in. Maybe you actually entered legally
and you have a chance to win permanent residency.
Now they have these new USCIS rules that if you are missing something
and these are supposed to go into effect in September full force
and if you are missing something, could be something minor, they can deny you right away.
And they can send you a Notice to Appear at immigration court.
Oh, that is the connection.
You go to USCIS, you file for a green card.
You file for permanent residence. You file for citizenship. You make an error.
They are no longer going to give a Request for Evidence, a second chance.
They are no longer going to give you a Notice of Intent to Deny.
Instead, they are going to deny you outright. And they might issue you a Notice to Appear in immigration court.
That is if they do not call you in and serve you right there on the spot.
So now you have to go to immigration court.
And everything at immigration court is rushing like crazy
so that you get to immigration court
and the judge says, "I do not have time for collateral matters.
I do not have time to continue your case."
"We cannot administratively close it. You have to go forward now."
Oh, but you only got so much time to get your evidence ready. You only got so much time for your hearing.
"And I only have so much time to listen to your case."
That is the master plan. And you need to know it. And you need to fight it.
And you need to make sure everybody that is on your side
on this issue of the political fence and knows immigrants' rights are being trampled on.
You have to stand up, and you have to fight this, and you have to make sure that if
you hire an attorney, that they are fighting for this.
You got it?
It's going to be a battle. Let's do it.
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