With Liberty and Justice For All

With Liberty and Justice For All

An Immigrants Path – The Hidden Truths of a Broken System

Andrew Robinson

We are inundated daily with tweets, media stories and facebook posts about refugee caravans, the alleged crisis at the southern border, illegal immigration and President Trumps border wall. It seems that everyone has an opinion, but how accurate is the information we are presented? 

Immigration has become a more and more visual political football in recent years, moving both sides of the aisle to more extreme positions in a flagrant game of oneupmanship. It seems that everyone has an iron clad opinion about what should be done about the immigration crisis/lack of crisis/humanitarian disaster at the border. The sad truth is that thanks to inaccurate and slanted news reporting, the ocean of troll farm generated fake news on social media and an apathetic and intellectually disengaged electorate the average citizen lacks even a fundamental grasp of what the US immigration court system is, let alone how it operates. This barely recognized and completely misunderstood anachronism is the beating heart of the system where all legal, illegal and asylum immigration is truly disposed of. 
Paul Schmidt, a former judge with the Executive Office of Immigration Review (EOIR), the organizational name for the immigration court system said in an interview that “…I think most people would be incredulous about what really happens in immigration court and what sometimes passes for due process…”. Dana Leigh Marks of the National Association of Immigration Judges goes a step further, describing a system in which “…in essence we are doing death penalty cases in a traffic court setting”
The goal of this article is to debunk a few common myths surrounding the immigration court system, explain the process and resources available and hopefully open the eyes of the reader to the painful and often tragic realities that immigrants trapped in this system experience every day.

What is the EOIR?

The primary mission of the Executive Office for Immigration Review (EOIR) is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings.”
                                                                                       US Department of Justice Website
The Executive Office of Immigration Review or EOIR, contrary to popular belief is not a part of the judicial branch of government. It is in fact a subordinate body of the Department of Justice under the direct authority of the Attorney General of the United States. 
The constitution grants the President of the United States the power to appoint all federal judges, with the ‘advice and consent’ of the Senate. That is, the President makes his nominations and an often grueling and intense vetting process is undertaken by the Senate Judiciary Committee after their credentials are verified by the Department of Justice. They can take up the bench only when that process is complete and the senate at large has voted to confirm their appointment. Not so the case when it comes to immigration judges. Immigration judges are selected, vetted and approved by the Attorney General alone. There is no benchmark for qualifications, no official criteria by which the AG must abide in his selection, it is simply a personal whim which even the President of the United States cannot override. Judicial review power also rests solely with the Attorney General. At no point in the immigration court process is a single official elected by the people in a position to stand in judgement over an immigration case. 
There are currently 61 federal immigration courts located around the country with 394 judges appointed to the bench. These 394 judges heard 184,000 cases in 2018. In 2008 there was a backlog in the EOIR of 186,108 cases. By the end of 2018 that number had grown to 714,067. At the end of the recent government shutdown, that backlog now stands at over 800,000 active cases.
Pending caseload by year according to the TRAC

Why All The Fuss?

“The only durable solution is to get the court away from the Justice Department. Let it be a real court, let it be real judges, so that we can do what we’re supposed to do,”
Ashley Tabaddor, president of the National Association of Immigration Judges
Perhaps one of the most common reactions to my explaining to someone my immigration status is surprise, and an almost automatic “you aren’t a citizen? But you’re married to one!” It seems a prevailing myth that marriage to an American citizen automatically grants citizenship. People are unaware of the complexity and depth of the immigration system. The same goes for the frequent social media roars from alt-right keyboard warriors “why don’t they just do it legally?!” as though the process is as simple and inexpensive as ordering a big mac meal at McDonald’s. For many immigrants, legal and otherwise, citizenship, while the ultimate goal is often next to impossible to achieve. Those here under the Deferred Action for Childhood Arrival program (DACA), known colloquially as dreamers have no legal path to citizenship. Similarly those who fell under one of previous administrations amnesty programs are often caught in a wide and poorly defined grey area with no true ‘legal’ path to citizenship. There is no mechanism, no form they can file, no fee they can pay, no process through which they can be granted the rights of citizenship.
For those of us here legally, the legal permanent residents who paid the fees, were subjected to multiple interviews, filing after filing, vaccination appointments, medical and psychological assessments and married to an American citizen, in theory we can apply to citizenship after a residence period of five years. Those granted asylum can make that claim four years after receiving their ‘green card’. 
Immigration paperwork all too often reaches into the thousands of pages
Easy right? File a form, take a test and you’re in! No… Most green card holders arrive using either a fiancé or consulate marriage visa and marry an American citizen. What you are then granted is a two year conditional residency (a temporary green card). The condition, essentially, is that you must remain married to that person and reside with them for that two year period. Long distance relationships aren’t easy and, based upon my experiences it is often the stress of the immigration process itself that breaks relationships. Therein lies the most cruel myth of all, that people who come in under these processes are just marrying for a green card. I can honestly say that of the thousands of immigrants I have met, corresponded with and spoken to in person, not one is ‘only in it for a green card’. Every one of us though has had the accusation leveled against us in one way or another.
Through reality television, America has learned that the fiancé visa process granting a 90 day period in which two people must get married gives precious little time to actually understand what it is like to live with each other. Anyone who has ever been in a long term relationship understands that being able to live together as a couple presents the biggest hurdle to that relationships success. For most, if not all holders of conditional residency, while they have been in a long term relationship, it has been at a distance. The nature of the immigration process has not afforded the opportunity to actually livetogether. 
When the marriage succeeds at the second year, the process beyond is relatively simple. Pay the $785 fee, file the form, attend an interview and receive a second, unconditional green card valid for ten years. Unless you misfile a form. Unless you miss a filing deadline. Unless you misspell a name. Unless you cannot provide sufficient and vaguely defined ‘evidence’ of the relationship. For those people their applications are rejected summarily. I wonder how many of my readers if they really thought about it could provide ‘sufficient evidence’ of the depth of their relationship after two years? How many have rental agreements, mortgage papers, insurance policies, car titles, utilities and bank accounts all in joint names? How many can provide evidence of vacations taken together, meals eaten together, events attended together? How many stockpile such evidence to be produced upon request?
An immigrant mother desperate to keep her family together
For those whose relationships do not survive that two year period, a waiver must be granted to make the application singly. That waiver is rarely granted and the evidentiary burden even higher. Evidence of private and professional counselling? Notarized statements and depositions from friends, colleagues, family members, counsellors, doctors, lawyers? Can you provide objective evidence that you made ‘sufficient efforts’ to reconcile? How many of my readers can look back at failed relationships and gather enough vaguely defined written evidence that they tried to save the relationship?
“Send them back!” yell the nationalists and the isolationists. “They don’t belong here!” yell the keyboard warriors and their alt-right parrots in congress and the media. What they fail to understand is that those who made that transition, who have come here to start a new life with the person they love have given up everything in their home countries. Jobs, houses, pensions, cars, bonds have been broken and bridges burned, all to begin their life anew. For me and those like me, there is nothing left for us in a nation to which we have surrendered our entire lives.

The Guillotine Awaits!… In about eight years…

“…when I retired, I was setting cases on the last day – I was on the bench June 30 of 2016. I think I was setting them for the end of 2021 or the beginning of 2022. I’ve heard they have more judges now, so maybe they’ve brought some of that in. But I think it’s probably still 2020, 2021.”
  Retired Immigration Judge Paul Wickham Schmidt
A Notice to Appear, the opening shot of the immigration court

For those of us not blessed with that magical, legendary ten year unconditional green card, we each eventually receive an innocuous envelope in the mail containing a single sheet of paper titled “Notification Of Removal Proceedings” termed a Notice To Appear (NTA). With that, we enter the chaotic and glacially slow world of the Executive Office for Immigration Review. Because of a case extension at our local county courthouse that pushed my divorce hearing beyond my assigned filing deadline, I entered that world in November of 2012. 
I think that all of those within the sphere of the EOIR would tell you that the worst part of the process isn’t the time spent waiting in antechambers, the travel, the cost, the time lost at work or the paperwork involved. They would tell you it’s the waiting. Each of the 61 immigration courts in the nation has its own particular average wait time. The shortest currently stands at 22 days at the Cibola County Correctional Facility in Minnesota dealing with detained immigrants (including children separated from their families under the Trump administrations zero tolerance policy). The longest is at the Chicago court where the current average wait time stands at 1,820 days. The average wait time nationwide is 670 days. Cases that were due to be heard during the recent government shutdown were all removed from the docket for rescheduling to avoid impacting later cases. It’s estimated that these cases will now be moved to dates in 2022 and 2023. Some of those people, who were marked during the Obama administration as low priority have been waiting for four and five years already and are now expected to wait a further 2-4 years. During such long waits, evidence is lost and witnesses disappear or become unavailable.
The Chicago immigration court building downtown

Due to my residence in Southern Illinois, I am governed by the Chicago immigration court six and a half hours north of me. I have now been waiting for over six years and I am not the exception. In those six years, I have received three automated continuances by mail and three involving actually visiting the court. My last deferment was a combination of the US Customs and Immigration Service delaying a freedom of information request and the Department of Homeland Security losing my file. Yes, that’s right, Homeland Security lost my file. This, I was to find out is not as rare as one would think and common sense would hope.

The first stage in removal proceedings is what they call the Master Calendar Hearing. This is a hearing to determine the date of your actual hearing. I attended the first one in 2013 and, under Obama administration guidelines of Attorney General Eric Holder I received three automated continuances as a low priority case. Under the Trump administration Attorney General Jeff Sessions, cases like mine were specifically moved to the front of the docket and I received a 30 day notification of new hearing date. I attended that hearing and was asked if I had retained counsel. What you need to understand about that question is fundamental to the very concept of immigration law. All immigration law is civil law. Despite being a subordinate body of the DOJ, immigration is not classified as a criminal matter. Because of this, immigrants whose cases fall into the EOIR are not afforded a number of very key constitutional protections:
  •   Immigrants have no right to be provided counsel by the court. If immigrants cannot afford an attorney (EOIR data tells us that only 37% of cases heard involve represented migrants) they must represent themselves.
  •  Immigrants have no presumption of innocence. The burden of proof falls upon them and not the state.
  •  Immigrants have no right to a timely trial. There are cases in the system which have proceeded for decades, with continuance after continuance. Legally, all persons in the US have a right to due process regardless of citizenship, but civil law lays no burden for a timely trial.
Unlike criminal courts, where there is a very clearly defined understanding of what constitutes acceptable evidence, in immigration courts hearsay, second hand accounts and unverified documents of unknown provenance are all considered acceptable evidence from the government. 
ICE agents on mission

Throughout this entire process, illegal immigrants, asylum seekers and legal permanent residents can
still be detained and deported by Immigration and Customs Enforcement (ICE) with no explanation or consideration for pending cases. Recently videos have surfaced of immigrants who have won their EOIR cases but have not yet been issued their permanent green card being detained for deportation by ICE. This is sadly not considered a violation of due process and with expedited deportation rules the immigrant in question is not in a position to appeal this action because that must be done from within the United States. 

The speed round?

Jeff Sessions, Former Attorney General under President Trump

With a backlog of over 800,000 cases and few new hire judges the system looks set to continue to buckle under the intolerable strain of an impossible workload. In a further twist, in april of 2018 Attorney General Jeff Sessions instated a quota requirement for all immigration judges. Each judge is required to settle 700 cases per year with fewer than 15% of decisions overturned on appeal.

National Association of Immigration Judges representative Dana Marks had this to say “Micro-managing our dockets from afar does not help us to do our job more efficiently and effectively,” while advocate, lawyer and former immigration court judge Jeffrey Chase told BuzzFeed the increased caseload could force judges to speed through hearings that might otherwise require deeper analysis, potentially impacting an immigrants’ ability to call witnesses, provide evidence, and make their case for remaining in the country.
Juan Carlos Coronilla-Guerrero in county jail.

In august of 2018, it was reported that immigration judges were issued further instructions to speed up hearings. Traditionally, a four hour window was blocked for individual hearings. Because they are considered standard federal employees, immigration judges work a standard eight hour day. The first four hours of each day are given over to Master Calendar Hearings, which are conducted in batches, a
judge briefly questioning each immigrant before issuing blanket rulings for dates. An hour for lunch and a further hour for case review leaves a final two hour period for individual hearings. In order to maintain the 700 case quota, judges must hear three to four cases a day. With roughly five minutes to transition between defendants this provides an immigrant 25 minutes to present their case as to why they should be permitted to remain in the United States. Just 25 minutes for decisions which can literally be a matter of life or death as Juan Carlos Coronilla-Guerrero discovered when he was arrested outside a courtroom in a sanctuary district by plain clothed ICE agents trolling the courthouse for illegal immigrants. He was deported back to Mexico and soon murdered by the very gang he had fled with his family. As a young woman identified in reports only as Elena discovered when she faced an asylum hearing which lasted just 143 seconds and consisted of only a single question before she was denied and deported back to El-Salvador, where she was assaulted at gunpoint and tortured with cigarette lighters by the drug dealer she had sought to escape.

Where do we go from here?

A death penalty case in a traffic court setting

 In a political and media landscape which is mired in debates over border wall funding and immigrant caravans it has become all too easy to bury the realities of quite how broken the US immigration court system is; not just for illegal immigrants and asylum seekers, but also those of us for whom a triviality or technicality or banal filing deadline can cost us our lives and our families. This system, which has become inherently unjust and inexcusably inhuman in its treatment of desperate individuals who have fallen victim to its inexorable and terrible reality. 

I have a wife and three children, with another on the way. On March 6th I will finally have the individual hearing that has been coming for more than six years. Will 25 minutes be enough for me to convince a Chicago immigration judge that I deserve to remain? That a filing deadline out of my control resulted in my entry into this nightmare? Common sense tells me I will. Reality tells a very different and terrifying tale.
Death penalty cases tried in a traffic court setting, it can and will only be ended when the immigration
courts and their judges fall under the control of the judicial branch and are confirmed by our elected representatives and when cases can be heard fairly, constitutionally and justly by judges given the time to do so.

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