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Have you seen the news recently? The Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) announced new efforts that will result in the forcible separation of families seeking protection in the United States under established U.S. law. Not only that, the Trump Administration announced that it will increase criminal prosecutions of parents attempting to enter the United States illegally, even those seeking political asylum in the United States, in its effort to tighten immigration enforcement.
In a recent speech, Attorney General Jeff Sessions stated that going forward, the United States would have a zero tolerance policy, suggesting that anyone crossing the border unlawfully into the United States will now be prosecuted. Even those seeking asylum in the United States. I quote:
“If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law. If you don’t want your child to be separated, then don’t bring him across the border illegally.”
It is a bit ironic that on the very day First Lady Melania Trump made a public statement about cherishing and protecting children, the Attorney General was talking about U.S. policy of separating parents from children for immigrant families seeking asylum status in the United States. That’s right, when Melania Trump said that “children deserve every opportunity to enjoy their innocence”, Attorney General Sessions declared that U.S. Customs and Border Protection (“CBP”) will arrest parents, and thereafter separate them from their children.
With then candidate Trump putting immigration front and center in the 2016 election, and now President Trump doing the same ahead of this year’s midterm elections, I suppose no one should be surprised by any of this.
Does that mean if a family presents themselves at a proper border crossing point and applies for political asylum, seeking protection from unfettered criminal violence in their home country, that they won’t be prosecuted or separated?
Individuals who arrive at the our border, without proper documentation, are often subject to fast-track deportation processes called “expedited removal” or, in some cases, “reinstatement of removal” (if they’ve been removed from the United States previously). In each instance, however, the law requires that these individuals receive a preliminary screening interview with a U.S. asylum officer if they express a fear of persecution if they were returned to their country of origin.
Over the past several years, however, federal law enforcement officials have been very vigorous in prosecuting migrants for entering the United States without permission or for reentering the country without permission after a prior deportation or removal order. Indeed, tens of thousands of individuals are subjected to criminal prosecution for these crimes every year. I understand this. We are a nation of laws.
However, the United States is a signatory to the 1951 Convention and Protocol Relating to the Status of Refugees, which is supposed to prevent nations from penalizing individuals requesting protection from persecution or torture in their country of origin. In 2015, the Department of Homeland Security’s own Inspector General noted that prosecuting those “who express fear of persecution or return to their home countries” may be inconsistent with and may violate U.S. treaty obligations.
According to the Office of Refugee Resettlement, a division of the Department of Health and Human Services, more than 700 children have been taken from adults claiming to be their parents since October, 2017, including more than 100 children under the age of 4. The Office of Refugee Resettlement takes custody of children who have been removed from migrant parents. The American Civil Liberties Union filed a lawsuit in February to challenge the practice of family separation.
We need to find the proper balance of appropriately and humanely enforcing our immigration laws, protecting individuals from being returned to their home country, and preventing families from being forcibly separated while the U.S. immigration process plays itself out. Right now, all this new policy is doing is making criminals of people who are simply seeking refuge from violence in their home country, and separating already stressed families, including very young and vulnerable children. This is unacceptable.
A recent article in the WALL STREET JOURNAL referred to a March 30, 2018 email from James McHenry, the head of the Department of Justice’s Executive Office for Immigration Review (“EOIR”), to immigration judges across the country, indicating that new metrics will require immigration judges to complete three (3) cases per workday. As a lawyer, I am used to dealing with many cases every day, so at first blush, three did not seem like a lot. But in context of the immigration judicial process, it most certainly is. And the stakes are high.
According to A. Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges union, “[t]hey are allocating, on average for a case, no more than two and a half hours,” further noting that political asylum cases often include hundreds of pages of supporting documents and evidence, not to mention countless hours of testimony and deliberation. In addition, because different judges handle different types of cases, including complex ones that take more time, it does not make a whole lot of sense to apply the same standard uniformly to all judges. Again, Judge Tabaddor: “We deal with people who are unaccompanied children, with people who have mental competency issues, with people who have serious criminal convictions, and with people who have fear of returning to their home countries in case of threat of death.”
According to Syracuse University, the immigration court backlog is currently more than 680,000 cases. EOIR’s new requirements will force some judges to adjudicate cases more quickly than they have been. The average cases completed per year by immigration judges, according to the EOIR, is less than 680. The new metric will require judges to complete 700 cases per year.
Judge Tabaddor says that “[y]ou are going to, at minimum, impact the perception of the integrity of the court.” It’s a lot worse than that.
Immigration judges are appointed by the Attorney General and are employees of the Department of Justice. Unlike their regular federal judge counterparts, who have life-tenure, immigration judges can be fired by the Attorney General. Courts certainly have established “aspirational” case completion goals in order to move overall caseloads along, but numeric quotas have never been explicitly tied to judges individual performance evaluations. This will no doubt jeopardize an immigration judge’s ability to remain independent and impartial.
“The very concept [of a quota system] is in conflict with independent decision-making authority of judges,” says Judge Tabaddor, “because it pits the judges’ personal livelihood to mere completion of cases faster through the system, rather than making decisions that are based on the fact and the law of the case as they took the oath to do.”
One could also argue that mandatory quotas will lower the quality of adjudications and perhaps even compromise due process. The Immigration and Nationality Act requires that a respondent in removal proceedings be given a “reasonable opportunity” to examine and present evidence. Most respondents in removal proceedings do not speak English as their primary language. A strict time frame for judges to complete their cases would no doubt interfere with that judge’s ability to assure that this important federal right to examine and present evidence is respected.
Related to this, Judges may now feel more pressure to deny requests for continuances. An unrepresented person making his or her first appearance before an immigration judge may need more time to find an attorney. An individual seeking political asylum may need more time to gather and develop evidence that is often very difficult to obtain from his or her home country. Reasonable continuances are often necessary to allow individuals time to develop their case.
Here’s a novel idea. What about increasing the budgets for the immigration courts? Remember the backlog number above? 680,000 cases! Immigration courts are way under-funded relative to the budgets of immigration enforcement agencies. In the government’s 2017 fiscal year, the combined budgets of Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”) exceeded $20 billion. By comparison, EOIR’s was about $420 million.
Let’s face it. By imposing numeric quotas on immigration judges, we’re doing little more than enabling the Trump Administration’s broader agenda of streamlining removal procedures in to so it can deport massive numbers of people at the expense of due process. The immigration court system can only function if due process is respected. This can only be accomplished if the judges have enough time to carefully review each case, conduct a thorough and fair hearing, deliberate the case, and then when all this is done, issue a well-reasoned decision that is consistent with the facts and relevant law.
On April 10, 2015, former Attorney General Eric Holder vacated in its entirety the November 7, 2008 opinion of Matter of Silva-Trevino, finding that because the Circuit Courts were split and at least two Supreme Court decisions cast doubt on its continued validity, the opinion was no longer useful in determining whether a particular criminal offense is a Crime Involving Moral Turpitude (“CIMT”) under the Immigration and Nationality Act (“INA”). What the heck am I talking about?
Back in 2008, then Attorney General Robert Mukasey issued the decision Matter of Silva-Trevino (commonly referred to as Silva-Trevino I), which allowed Immigration Judges to find a foreign national deportable from the United States on the basis of alleged facts never established (i.e., proven) in the foreign national’s criminal case which formed the basis of his or her removal (i.e., deportation) proceedings.
Since this decision, five Circuit Courts of Appeals have rejected Silva-Trevino I. Essentially what was happening was Immigration Judges were re-trying criminal cases in their own courts, and in doing so, they were considering (often unproven) facts that were outside of the foreign national’s Record of Conviction in his or her criminal proceedings.
This was problematic on at least two levels. First, it created great difficulty for criminal defense lawyers to properly advise their clients regarding the potential immigration consequences of taking a plea to certain criminal charges. Second, many of the respondents in removal proceedings were individuals who were detained and without counsel, and who had previously given up their right to trial in their criminal proceeding and agreed to plead guilty with the intent of avoiding the immigration consequences presumably associated with their pleas.
Former Attorney General Holder’s order vacating Silva-Trevino I and its accompanying opinion (commonly referred to now as Silva-Trevino II) cited Supreme Court case law which makes it very clear that any inquiry as to whether a criminal offense is a CIMT for immigration purposes in the future should not go beyond the Record of Conviction.
What does all this mean in practice? Noncitizens can be deported from the United States if they have been convicted of a CIMT (and in some cases, if they’ve been convicted of two CIMT’s). Examples of CIMT’s under various state case law include, without limitation, fraud and theft offenses, offenses in which intentional bodily harm is caused, and various sex-related offenses.
To determine whether a noncitizen has been convicted of a CIMT, immigration officials have generally looked to the “inherent nature” of the offense as opposed to what the defendant actually did in a particular case. Simply stated, the facts of the case are irrelevant. This approach is called the “categorical” approach.”
A few weeks before George W. Bush’s presidency ended, former Attorney General Mukasey issued Silva-Trevino I, which dramatically changed the playing field, and essentially allowed Immigration Judges in certain cases to examine evidence beyond the Record of Conviction to assess whether the defendant’s conduct which formed the basis of his or her conviction involved moral turpitude.
Silva-Trevino I first instructed Immigration Judges to use the traditional “categorical” approach to determine whether a conviction constituted a CIMT. Again, under this analysis, the defendant’s actual conduct was irrelevant. The only question that needed to be answered was whether the elements of the statute of conviction either necessarily fall within the case law definition of a CIMT or never do so. If the Immigration Judge was unable to determine that the prohibited conduct under the statute either always or never involved moral turpitude, then the Immigration Judge was instructed to review the Record of Conviction. Again, the inquiry would end if the court was able to determine whether or not the defendant was necessarily convicted of a CIMT. If the modified categorical approach did not resolve the question one way or the other, then Silva-Trevino I allowed for the Immigration Judge to consider “any additional evidence the adjudicator determines is necessary or appropriate to resolve adequately the moral turpitude question,” whether or not it was contained in the formal Record of Conviction.
As indicated earlier, five federal circuit courts rejected Silva-Trevino I, essentially holding that where immigration consequences are premised on a “conviction,” the immigration statutes are unambiguous in prohibiting an Immigration Judge (or any adjudicator for that matter) from considering simply alleged facts, including evidence outside the Record of Conviction. Indeed, this is what Silva-Trevino II stands for; that is Attorney General Holder’s order prohibits an Immigration Judge from using evidence outside the record of conviction in determining whether an offense involves moral turpitude. Consequently, criminal defense attorneys are now able to assess whether an offense involves moral turpitude and to help their noncitizen client avoid such a designation. This is good news for all.
 Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008).
 Immigration Judges were considering evidence outside of the Record of Conviction (e.g., the charging document, bill of particulars, verdict or judgment, sentence, minute entries, written plea [if there was one], jury instructions [if there was a trial], presentence report, or probation report) in order to determine whether a foreign national was removable from the United States on the basis of a conviction of a CIMT.
 Matter of Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015).
 See 8 U.S.C. §§ 1182(a)(2)(A), 1227(a)(2)(A)(i), (ii).
 This part of the inquiry is generally referred to as the “modified” categorical approach.
 Silva-Trevino I at 704.
 Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014); Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303 (11th Cir. 2011); and Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462 (3d Cir. 2009).