“Equally Divided Court” (Sorta) Leaves Obama’s Deportation Executive Order In Limbo

Questions will persist on whether President Obama superceded his authority by creating by executive order the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program designed to defer deportation for millions of immigrants.

Today, the Huffington Post reports the Supremes affirmed a lower court ruling that blocked the program stating simply, “The judgment is affirmed by an equally divided court.” While immigration advocates may lament the loss, the order itself rings hollow given the Administration’s renewed call last month to seek out and deport Border Kids escaping gang and drug cartel violence from Central America.

Irrespective of where one stands on the immigration reform debate, the fact is that the question of executive power was left unanswered because now even the judicial branch has been brought to a standstill.

Report Offers Details About Immigration Court Backlog

As reported in Al Jazeera America: "The nation’s immigration courts got a bit of relief at the beginning of June, when the Department of Justice hired 18 new immigration judges. But the courts are still facing a major backlog.Illustration by Sam Ward for Al Jazeera America"

As reported in Al Jazeera America: “The nation’s immigration courts got a bit of relief at the beginning of June, when the Department of Justice hired 18 new immigration judges. But the courts are still facing a major backlog.Illustration by Sam Ward for Al Jazeera America”

A new report by Bruce Wallace, writing for Al Jazeera America, details just how stalled the nation’s busiest immigration courts are, and how backlogged they remain. Writing from New York, he reports that “… depending on how you count it, this courthouse — actually a collection of 31 small courtrooms scattered across two floors of a tall federal office building in downtown Manhattan — is either the busiest or second busiest of the 58 immigration courts in the country. The one in Los Angeles got more new cases last year — a little over 18,000, compared with around 17,700 for Manhattan. But Manhattan has more cases pending: 60,538 compared with 51,878 in L.A. Or, on average, about 2,240 cases per New York judge. Judges in comparable courts have about 700 cases a year, according to the American Bar Association.
 
The story goes on: “Death-penalty cases in a traffic-court setting” is how Dana Leigh Marks likes to put it. She’s an immigration judge in San Francisco and president of the National Association of Immigration Judges (and, as such, one of two immigration judges in the country who are permitted to speak to the media). “The volume alone is like traffic court, and yet the stakes for someone who asserts a claim of asylum, if I am wrong — or even if I’m right but, because the law doesn’t allow me to grant relief, I have to deny them — they could be going back and facing death.”
 
Immigration courts, despite their name, are not actually part of the federal courts system. They are part of the Justice Department and the judges do not have much power over their colleagues who represent the government. They are civil courts, so there is no right to have counsel provided. Nationally, some 450,000 cases are pending with wait times reaching half a decade.
 

‘Border Kids’ Moves Into New ‘Crisis Of Process’

Photo from the LA Times Report, "7,000 immigrant children ordered deported without going to court," 3/6/15

Photo from the LA Times Report, “7,000 immigrant children ordered deported without going to court,” 3/6/15


Just when you think the “Border Kids” crisis where thousands of minor asylum seekers flood the borders, the situation takes a turn for the worse. Now, the Los Angeles Times reports, “… more than 7,000 immigrant children have been ordered deported without appearing in court since large numbers of minors from Central America began illegally crossing the U.S. border in 2013, federal statistics show.”
 
Not that anyone knows much beyond those orders. The Times notes that immigrant advocates say many of those children were never notified of their hearing date because of problems with the immigration court system. Times sources say that some notices arrived late, some went to the wrong address or perhaps there was no notice delivered at all. Those sources also say some children were ordered to appear in a court where they were initially detained, not where they are living now.
 
Also, nobody really knows how many of those children choose to just not show up for the hearing, or how many were actually notices. “What was a border crisis has now become a due process crisis,” said Wendy Young, president of Kids in Need of Defense, an advocacy group, in the Times report. Oh, and it is also not known how many of those children facing deportation orders have been sent home – you have to wonder if they even know the hearings happened.
 
Read more on the mess at the Times.

 

Judges Renew Calls For Immigration Court Reform

After a period of relative quiet, the immigration judges facing hundreds of thousands of cases are speaking out, calling for help amid a crisis. A new NPR report explains that “… as Congress debates the fate of President Obama’s immigration policies, the nation’s immigration court system is bogged down in delays exacerbated by the flood of unaccompanied minors who crossed the southern border last summer. The administration made it a priority for those cases to be heard immediately. As a result, hundreds of thousands of other cases have been delayed until as late as 2019.”
 
NPR adds that “even before this past summer’s surge of unaccompanied minors seeking asylum, the immigration courts were already clogged, says Judge Dana Leigh Marks, president of the National Association of Immigration Judges. There were too many cases for too few judges, and adding in the cases of the unaccompanied minors only made matters worse. There are currently more than 429,000 cases pending in the courts with just 223 judges.
 
The “judges” are not part of the usual judicial system, but are actually employees of the Justice Department – that means, for example, that they could not hold government agents – really, their co-workers – in contempt of court during one of the hearings. Read more: Immigration Courts ‘Operating In Crisis Mode,’ Judges Say

Central American Cases Push Others Aside

One way to respond to the immigration courts crisis highlighted by those unaccompanied minors from Central America would be to overhaul the system and increase capacity. Another would be to push those cases ahead of others in hopes of discouraging other migrants from coming. Guess which one we’re doing? 
 
The Houston Chronicle has a strong story about “… a startling turnaround for a clogged immigration court system that usually takes about six months between just these first steps [as opposed to 30 days], reflecting the government’s effort to push Central American cases through the pipeline to deter other migrants from coming. The aggressive effort, however, has ramifications for others in the system, which is facing a record backlog of more than 430,000 cases nationwide. Some immigrants’ hearings have been delayed indefinitely, which can impede time-sensitive cases and jeopardize their chances of gaining legal residency. Mexicans, who make up the largest portion of immigration courts’ caseload, saw their disposition times increase by about 13 percent to 533 days, according to a new analysis of court records by Syracuse University’s Transactional Records Access Clearinghouse.”
 
“The Central American cases have completely taken over the docket,” immigration attorney Salvador Colon told the paper, while another noted that “they’re shoving all the Central Americans in front saying, ‘Go home and tell everyone else not to come because you’re going to be deported. The immigration court here looks like a day care because there are so many little kids hopping around.”
 

Undocumented Residents Get Cal. Drivers License

The Golden State is muddling through its first month of offering drivers licenses to undocumented residents, expecting to process nearly 1.5 million applications over the next several years. The Sacramento TV station KCRA reports on one challenge: … immigrant advocates have urged applicants who previously used someone else’s Social Security number to obtain a driver’s license to check with a lawyer before applying. Advocates say they have seen a handful of cases where immigrants who previously had licenses were told they would need to meet with a DMV investigator to complete their applications.”
 
The report notes that “… immigration attorney Patricia Corrales said three of her clients who went to DMV offices to apply for the licenses were frightened after they were told they needed to sign an affidavit acknowledging fraud.” She added that seems to work against the idea of the program, which is to get more undocumented residents to obtain driver’s licenses.
 

Obama Said To Be Planning Big Immigration Move

While early reports do not focus on the more than 300,000 recent Central American “border kids” awaiting deportation hearings, it does seem President Obama is making good on his immigration policy promises. The New York Times reports that “… part of Mr. Obama’s plan alone could affect as many as 3.3 million people who have been living in the United States illegally for at least five years, according to an analysis by the Migration Policy Institute, an immigration research organization in Washington. But the White House is also considering a stricter policy that would limit the benefits to people who have lived in the country for at least 10 years, or about 2.5 million people.”
 
The NYT added that “… extending protections to more undocumented immigrants who came to the United States as children, and to their parents, could affect an additional one million or more if they are included in the final plan that the president announces.” Immigration cases, thought by many to be criminal cases, are actually civil actions. For example, immigration “judges” are actually employees of the Justice Department.
 
But officials also said, according to the Times, that patrol agents and judges at the Department of Homeland Security, the Justice Department and other federal law enforcement and judicial agencies, “will make clear that deportations should still proceed for convicted criminals, foreigners who pose national security risks and recent border crossers.”
 

Feds Demanding Interpreters In Civil Cases

In a situation sure to echo nationally, California is scrambling to “voluntarily” remedy a civil rights violation for not providing interpreters in certain civil cases, The Los Angeles Times reports. The Times notes that “… unlike those charged with a crime, people in civil court do not have the constitutional right to an interpreter. For many of California’s nearly 7 million limited-English proficient speakers — about one-third of whom live in Los Angeles County — that makes the system practically impenetrable… the problem led the U.S. Department of Justice last year to conclude that L.A. County and the state’s Judicial Council were violating the Civil Rights Act.
 
The Times explained that the investigation “was prompted by a complaint filed by the Legal Aid Foundation of Los Angeles on behalf of two low-income clients. One had been sexually assaulted and sought a restraining order against her attacker; the other had filed for custody and child support for her son. Both were denied Korean interpreters. Federal authorities have given California the chance to voluntarily improve services. But failure to make the court system accessible to all could result in federal intervention.”
 
The Times story comes in a context of diminished civil court services and delays in family court, among other challenges. Top court officials have said mere access to courts become a civil rights issue.
 

ICE Holds Down Under ‘Trust Act’ Policy

Some new numbers are confirming that law enforcement officials are holding fewer immigrants on behalf of federal immigration authorities. The change comes under policies of the Trust Act that went into place earlier this year and follow court decisions on the “holds.” The Associated Press reports that “… immigration officials say local authorities across the U.S. released thousands of immigrants from jails this year despite efforts to take them into federal custody, including more than 3,000 with previous felony charges or convictions.”
 
The AP story explains that “… the Trust Act limits the ability of local law enforcement to comply with Immigration and Customs Enforcement requests to hold immigrants longer than their scheduled release date to give ICE time to take them into custody.” Immigration issues are nearly always “civil,” not criminal issues.
 
California’s San Diego County was among the five counties nationwide with the most federal immigration requests declined, according to newly released ICE data. Santa Clara, Los Angeles, Alameda and Miami-Dade, FL, were the other four. In northern California, the number of detainees transferred to ICE custody fell 53 percent during fiscal year 2014, according to ICE. In the Los Angeles area, the number fell by 15 percent. Similar figures weren’t available for San Diego, but in fiscal year 2013, immigration authorities requested that 3,020 detainees be transferred to ICE custody from San Diego and Imperial counties, reports the AP.
 
See the story via California public radio here: Immigration Holds Plummet In First Year Of California’s Trust Act

Supreme Court Considering Key Low-Level Drug Deportation Issue

The United States Supreme Court famously likes to use small cases to make big decisions, and thus we have the case of a man deported over a sock. The International Business Times explains that “… Moones Mellouli, an immigrant from Tunisia who has been fighting the grounds of his deportation order since 2012. A high court ruling against him could widen the deportation net for immigrants convicted of low-level drug-related crimes — even if the drugs in question aren’t designated controlled substances under federal law.”
 
The Times offers the backstory: “Mellouli came to the U.S. in 2004 on a student visa. He completed two master’s degrees, taught mathematics, secured a job as an actuary and received his green card. In 2010, he was stopped and detained in Kansas for driving under the influence, and then charged and convicted with possession of drug paraphernalia — specified under Kansas law as anything used to “store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.” In this case, it was a sock containing an unspecified drug… in Kansas, this counted as a misdemeanor, punishable by a fine. Under federal law, and in many other states where “drug paraphernalia” has a stricter definition, Mellouli’s behavior wouldn’t have amounted to a crime at all.”
 
The idea was that his sock, where he had stashed four Adderall pills, was paraphernalia. The Justice Department’s Immigration Court upheld the deportation. Now, says the Times, “… if the Supreme Court agrees, it could open the way for more of these types of low-level drug crimes to become deportable offenses… the case also highlights the degree to which the variability of state laws factors into deportations: If Mellouli had been in California, rather than Kansas, he may not have been convicted in the first place.