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Why Certain Immigrants Should Be Provided Legal Counsel At Immigration Court Hearings

Why Certain Immigrants Should Be Provided Legal Counsel At Immigration Court Hearings | Immigration Court Hearings | Scoop.it
A blog dedicated to advancing constructive dialogue on immigration. (RT @ImmPolicyCenter: In criminal courts, defendants must be provided with attorneys; in #immigration court, this is not always the case.
Carlos Batara's insight:

The need for mentally incompetent immigrants to be represented by appointed legal counsel is critical.  Deportation defense hearings are complicated enough even when everyone understands what happening.  When combined with convoluted rules in certain instances, mentally infirm immigrants stand almost no chance of ensuring fair hearings. 

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Billie Greenwood's curator insight, January 26, 2013 12:09 PM

I found this via attorney Carlos Batara and highly recommend his work on ScoopIt to any interested in immigration!

Immigration Court Hearings
Deportation Defense Tips To Help Win Your Case At Immigration Court http://www.bataraimmigrationlaw.com/deportation-removal-defense.html
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Immigration Court Hearings And Appeals - Facts You Should Know About Deportation Defense Trials

http://www.bataraimmigrationlaw.com Riverside and San Diego Immigration Attorney Carlos Batara provides a short overview of the immigration court and deporta...
Carlos Batara's insight:


Immigration court fixes should be part of a comprehensive immigration reform plan.  The immigration court system is, to say it nicely, lacking in modern technology. 

 

More significantly, our nation's explosion of deportations, with limits placed on the ability of immigrants to defend themselves, makes the entire immigration court system - immigration court hearings, deportation defense merits trials, and immigration appeals - in need of vast improvements. 

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Chasity Brewster Alvarez's curator insight, July 10, 2013 10:15 PM

This guy is awesome.  Not some stuffy guy who is collecting a pay check.  He is real, on point, and really has a heart and passion for this stuff.  I really respect and admire him!

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EOIR Proposes Immigrant-Friendly Change For Bond Hearings

EOIR Proposes Immigrant-Friendly Change For Bond Hearings | Immigration Court Hearings | Scoop.it
Riverside Immigration Attorney Discusses How Proposed Change For Lawyer Representation At Bond And Custody Hearings Will Promote Immigrant Family Unity.
Carlos Batara's insight:


Many aspects of immigration court run contrary to general notions of court proceedings.  For instance, in most courts, attorneys can make limited appearances so long as they show the court that the client has given his or her consent.


Not so in immigration court.  Here, you're locked in, unless a judge is kind enough to let you withdraw. 


This has created problems for many immigrants who need legal assistance at their bond and custody hearings but cannot afford to pay for a retainer covering future hearings.  Because most deportation lawyers are not willing to commit to being on the hook in the long term, perhaps several years, for a less-than-full retainer, these immigrants are left to go it alone.


As one might suspect, this has led to serious administration overload problems for immigration courts.  Thus, the EOIR has decided to propose a rule change, allowing legal representatives to help clients for bond and custody matters without being locked in the case on a permanent basis.


It seems like a good deal for immigrants to me.



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So You Have An Immigration Court Case? Get Ready To Hurry Up And Wait.

So You Have An Immigration Court Case? Get Ready To Hurry Up And Wait. | Immigration Court Hearings | Scoop.it
San Diego immigration lawyer shares why immigration court cases do not often move from start to finish quickly.
Carlos Batara's insight:


Unless you have a strong claim for prosecutorial discretion or a possible family unity claim to become a permanent resident, do not expect for your case to move from start to finish overnight.


Some cases, by necessity, take longer.  Other times, delays are caused by problems external to the immigration system.


Here are a few reasons why, if you're in proceedings at present, things are creeping slowly.

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Immigration Courts: In Need Of Modernized Technology

Immigration Courts: In Need Of Modernized Technology | Immigration Court Hearings | Scoop.it

Updated News, Stories, And Reports About Immigration Court By Immigration Expert Carlos Batara.

Carlos Batara's insight:


Anyone who has been in immigration court knows the truth of this story. Calling the video conferencing system “not very good” is putting it mildly.


As immigration court trial attorney, I can personally attest to the horrible, horrible equipment which not only judges, but also lawyers, clients, and witnesses must deal with on a daily basis.


In "The Technology The Government Uses For Immigration Hearings Doesn’t Work Right," one immigration court observer explains why the court's equipment, even if working correctly, is not an ideal way to hold hearings.  For immigrants to explain why they’ve entered the country in a convincing manner, he notes, "talking to someone on a TV … is just not a conducive setting.”


But since Congress holds the keys for upgrading, I don’t expect any quick fixes.

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How Immigration Court Statistics Are Dangerously Misleading

How Immigration Court Statistics Are Dangerously Misleading | Immigration Court Hearings | Scoop.it
The majority of immigration court cases now involve legal representation.
Carlos Batara's insight:


According to new immigration court statistics, the majority of cases now involve immigrants with legal representation.


Does this mean more immigrants are hiring immigration lawyers to assist them against deportation charges?


No.


At first glance, my views seem to conflict with those of Elahe Izadi, of the National Journal, who writes:


"In 2013, 59 percent of those in immigration proceedings had legal representation—that’s a big jump from 2009, when just 39 percent had lawyers. In 2012, a very slim majority of cases had clients with no legal representation. Those figures come from the 2013 statistical yearbook from the Executive Office for Immigration Review, or EOIR, which is part of the Justice Department."


Frankly speaking, I have trouble accepting the factual assertions.


When I go to immigration court, I still see large case dockets with few attorneys listed as legal representatives.


However, since statistics don’t lie, I’ll accept the immigration court numbers as valid.


It may be true, on a percentage basis, more immigrants are attending deportation defense hearings at immigration court with attorneys.


But over the past several years, as noted in What You Need To Know About Immigration Court Hearings, there have been approximately 150,000 deportation cases annually in which immigrants have been represented by legal counsel.


Overall this is just about the same amount of immigrants going to immigration court with a lawyer today - if both detained and non-detained cases are both counted. 


It’s just there are fewer cases . . . right now.


I also doubt that immigrant clients are “savvier” about their rights than before.


To be sure, there is more media attention paid to deportation policy.


There is greater awareness of certain highly-publicized programs like Deferred Action For Childhood Arrivals (DACA).


As Crystal Williams, executive director of the American Immigration Lawyers Association points out, programs like [DACA] “have really brought the immigrant community into kind of a savvier understanding of what their rights might be.”


Yet, this level of awareness is not equivalent to a real understanding how the immigration court system works.


In my view, the current numbers seem to reflect the impact of the ongoing political chaos. Immigrants are stuck between a rock and a hard place.


On the one hand, massive detentions of immigrants are still taking place. Many lead to deportations outside the court system.


At the same time, there are some temporary relief measures in place, allowing immigrants to avoid immediate deportation proceedings.


Neither cause is a long term solution.


Potentially worse, both are indicators that the number of immigrants needing legal representation may well increase in the not-so-distant future.


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Immigration Courts: The Long-Awaited Exercise Of Prosecutorial Discretion Finally Begins

Immigration Courts: The Long-Awaited  Exercise Of Prosecutorial Discretion Finally Begins | Immigration Court Hearings | Scoop.it
Immigrants facing deportation are increasingly likely to have their cases dismissed because of mitigating factors such as having U.S. citizen children, according to an analysis by researchers at Syracuse University.
Carlos Batara's insight:


The Los Angeles Times recently reported that immigration courts have become more lenient over the past 12 months.


A little history is warranted.


Over the past few years, the concept of prosecutorial discretion has taken quite a detour in the immigration context. 


In A New ICE Age: 19 Points Of Hope, I explained my doubts whether the government would ever engage in a full-fledged prosecutorial discretion program. 


The idea, after all, had been hatched in the summer of 2010. 

The original memo on prosecutorial discretion can be found here:  http://graphics8.nytimes.com/packages/pdf/us/27immig_memo.pdf


About two years later, in 2012, the government announced that a system-wide Joint Task Force, consisting of immigration judges, ICE officers, and government attorneys would start to review cases to separate the low-priority deportation cases from the high-priority cases.    


The goal was to remove low-priority cases in which the immigrant appeared to qualify for immigration benefits and legalization in the future.


This effort fizzled quickly.  But it led to a more conscious effort by deportation attorneys to push for the exercise of discretion on a case-by-case basis.


The news earlier this week emanating from researchers at Syracuse University show that this effort in certain regions has started to reap gains for immigrants facing deportation.


In some courts, at least 20% of case closures involved prosecutorial discretion. Of the roughly 35,000 cases closed in Los Angeles over the last two years, nearly ¼ were due to the court’s exercise of prosecutorial discretion.


According to the Times, Syracuse TRAC (Transactional Records Access Clearinghouse) researchers also noted: 


  • In some cities, the totals were greatly lower.  For instance, in Houston, only 1.7 % of immigration case closures were due to prosecutorial discretion. In New York City, the rate was 3.7%.
  • The tallies do not include cases closed in earlier stages, before reaching the courts.
  • A high prosecutorial discretion case closure rate “may be a sign that inadequate review of cases is taking place before officials file an action in court seeking a removal order.


A point not addressed was whether the recent news about the shortage of immigration court judges prompted this upswing in judicial leniency.


Here is a link to the TRAC report:  http://trac.syr.edu/immigration/reports/339/.


The reseach shows significant progress on alleviating the effects of our nation’s excessive detention and deportation policies. 


But there is still a long road ahead before the vast majority of deserving immigrant families are spared the possibility of permanent separation.






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How Minor Crimes Became Aggravated Felonies For Immigrants

How Minor Crimes Became Aggravated Felonies For Immigrants | Immigration Court Hearings | Scoop.it
Since 1996, hundreds of thousands of longtime U.S. residents have been sent back to their native countries for small, non-violent infractions—and without courtroom trials.
Carlos Batara's insight:


Writing for the Atlantic, journalist Steve Patrick Ercolani provides an detailed look into the reasons why many immigrants are deported for committing minor crimes.

 

Each year, he notes, thousands of immigrants are charged with violating immigration regulations governing “aggravated felonies” by the U.S. Immigrations and Customs Enforcement (ICE).


A conviction under this category of law normally means deportation and removal back to their home country – even if the individual has lived in U.S. for over two decades and has a U.S. citizen spouse and children.

 

The term, explains Ercolani, became law as part of the 1988 Anti-Drug Abuse Act.  At that time, it was limited to serious crimes such as murder and drug trafficking.

 

In 1996, however, the category exploded, as part of a Congressional effort to reduce the ability of immigrants to defend themselves against deportation.


In particular, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) placed an unconscionable burden on immigrants.  Over 20 new crimes were added to the category of aggravated felonies.

 

Adding insult to injury, the requirement that an aggravated felony meant the immigrant must have been incarcerated five years was reduced to a sentence of one year.

 

The law also allowed immigrants to be charged retroactively.  This meant convictions predating 1996 could still be used to deport immigrants, even when they their offenses were not aggravated felonies under immigration law at the time when they pled guilty.

 

The results were predictable.  Quoting Human Rights Watch's 2009 report Forced Apart , Ercolani states approximately 20 percent of immigrants removed between 1990 and 2010 were longtime legal residents, and the vast majority of their crimes were minor, non-violent offenses.      

 

In 2011, former Immigration and Customs Enforcement (ICE) Director John Morton drafted a memorandum which stated, “The removal of aliens who pose a danger to national security or a risk to public safety shall be ICE’s highest immigration enforcement priority.” 


About a year later, a joint task force involving government lawyers, courts, and law enforcement offices began a process to separate high from low priority cases.  The prosecutorial discretion effort fizzled in the matter of a few months. 

 

It now appears that ICE is working actively with law enforcement authorities to meet quotas. 


Under President Obama’s tenure, deportation totals have reached 400,000 per year.  He has been given the name, “Deporter-In-Chief,” by immigration rights activists for his role in making only a half-hearted approach to reducing such numbers.


Earlier this week, speaking in San Francisco, he met with public opposition which asserts he has the executive authority to defer prosecution of low priority cases.   


Meanwhile, the deportation machine marches on. 


Critics assert deportation policy is part of a massive lobbying effort by for-profit prison groups. 


For instance, a recent NPR report discussed a little-known detention bed mandate, which requires 250 facilities across the country to fill a total of 34,000 beds per day with detained immigrants. 


And in Ercolani's view, the situation for immigrants may get worse before it gets better.  He cites the Strengthen and Fortify Enforcement Act (SAFE), which has already passed the House Judiciary Committee, and may see a floor vote by the end of the calendar year.


All the while, both Democrats and Republicans talk up the virtues of immigration reform legislation, S.744, which does little to address the problems caused by the mid-1996 laws.  ..

 

As an immigration lawyer, I can attest the road to fairnesss for immigrants remains uphill.

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The Immigration Court System: The Neglected Step-Children Of Immigration Reform

The Immigration Court System: The Neglected Step-Children Of Immigration Reform | Immigration Court Hearings | Scoop.it

This article outlines the impact of Congressional failure to address problems plaguing the immigration court system as part of current immigration reform discussions.

Carlos Batara's insight:

Recently, the National Association of Immigration Judges interjected their views into the ongoing debate over the proper components of immigration reform.

 

The NAIJ, the collective bargaining unit for immigration judges, stressed that justice delayed is justice denied, and that the lack of adequate funding, resources, and independence was causing a crisis situation for immigration courts.

 

The report, which can be found at https://dl.dropboxusercontent.com/u/27924754/NAIJ%20-%20The%20State%20of%20Our%20Courts%204-13-13.pdf, provides the public with a rare inside look at how immigration courts function today.

 

However, the report is writting from a immigration judge perspective.

 

It does not address crucial issues raised for several years by immigrant advocates about deficiencies in our immigration court system beyond mere resources and autonomy.  These include the evaporation over the past 15 years of due process protections for immigrants, as well as the advent of a massive detention and deportation political machine.  

 

Without a broader approach to immigration reform, even the changes proposed by the NAIJ would not fix our broken immigration court system.

 

In "No Reform For A Troubled Immigration Court System?" (http://www.bataraimmigrationlaw.com/troubled-immigration-court-system.html), these issues are brought forth to challenge reformers who think waving a wand, without substance, will solve the needs of justice-starved immigrants.

 

 

 

 

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How Congress Has Limited Due Process At Deportation Defense Hearings At Immigration Court

How Congress Has Limited Due Process At Deportation Defense Hearings At Immigration Court | Immigration Court Hearings | Scoop.it
Riverside Immigration Lawyer Discusses How Congress Has Attempted To Destroy Immigrant Due Process Rights Against Deportation And Removal.
Carlos Batara's insight:


People often ask, "Carlos, why do you keep insisting immigration reform should include an in-depth reversal of provisions which affect deportation cases at immigration court, stemming from the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA)?"  .

 

Starting with IIRAIRA, here's a sampling showing how the ability of immigrants to fight deportation were chipped away.

 

In effect, Congress:

 

Increased continuous residency in deportation defense matters from 7 to 10 years

 

Expanded list of aggravated felonies which exclude any relief from deportation

 

Tightened rules for adjustment of status to permanent resideny

 

Imposed stricter hardship standard necessary for favorable grant of cancelling removal proceedings

 

Modified regulations, which limited avenues for appellate review

 

There changes had adverse effects on immigration courts, appellate courts, and the federal court system, as well as on immigrants.  Combined, it seems Congress should want to do something to revamp the system.

 

But, of course, actions speak louder than words.

 

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Alex Salazar's curator insight, April 9, 2014 1:21 PM

This about how congress has been stripping away due process from immigrants.

 

Luke French's comment, April 13, 2014 2:20 PM
I found this article very disturbing. Although illegal immigration may be on the rise, these new restrictions are not the way to stop it.
Carlos Batara's comment, April 13, 2014 9:00 PM
One of the big problems with immigration law, as I see it, is that it is driven by political ambitions. There are various rationally-based solutions which have been proposed. But they don't seem to fit current political agendas at the federal level. Thus, the law is distorted and our core principles of fairness and due process are stripped away on certain aspects of immigration law. In the end, the current solutions are non-solutions.
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An Immigration Circus: Prosecutorial Discretion Case Reviews

An Immigration Circus: Prosecutorial Discretion Case Reviews | Immigration Court Hearings | Scoop.it

Riverside Immigration Attorney Explains How Prosecutorial Discretion Policy Has Not Truly Addressed Low Priority Cases Of Non-Detained Immigrants.

Carlos Batara's insight:

At immigration court, a lawyer notified the judge that he planned to seek prosecutorial discretion for his client.  The government attorney responded that the review had taken place last spring.

 

Really? 

 

As I sat there, I wanted to add my two cents. 

 

After all, the much publicized review panels spent about 15 minutes on each case. 

 

Of course, if the immigrant did not have an attorney, the government probably did not need more than five minutes to decide to actively prosecute this non-criminal offender.  And many others.

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Why Certain Immigrants Should Be Provided Legal Counsel At Immigration Court Hearings

Why Certain Immigrants Should Be Provided Legal Counsel At Immigration Court Hearings | Immigration Court Hearings | Scoop.it
A blog dedicated to advancing constructive dialogue on immigration. (RT @ImmPolicyCenter: In criminal courts, defendants must be provided with attorneys; in #immigration court, this is not always the case.
Carlos Batara's insight:

The need for mentally incompetent immigrants to be represented by appointed legal counsel is critical.  Deportation defense hearings are complicated enough even when everyone understands what happening.  When combined with convoluted rules in certain instances, mentally infirm immigrants stand almost no chance of ensuring fair hearings. 

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Billie Greenwood's curator insight, January 26, 2013 12:09 PM

I found this via attorney Carlos Batara and highly recommend his work on ScoopIt to any interested in immigration!

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Dear President Obama: A Simple Suggestion To Reform Immigration Bureaucracy

Dear President Obama: A Simple Suggestion To Reform Immigration Bureaucracy | Immigration Court Hearings | Scoop.it
After waiting 2 1/2 hours, my client was finally called for her green card interview. We headed to the hallway door to meet the U.S. Citizenship and Immigration Services officer. I extended my righ...
Carlos Batara's insight:

It's not just the rules and regulations which need an overhaul.  How about the customer relations skills - or, most precisely, the lack of such skils - of many immigration agency employees?

 

I wrote this article a while ago.  But I experienced the culture of rudeness, once again,  just a few days ago. 

 

 

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Misguided Deportation Law: Prosecuting Victims Of Domestic Violence

Misguided Deportation Law: Prosecuting Victims Of Domestic Violence | Immigration Court Hearings | Scoop.it

 
BY SALLY J. KIM

Korean immigrant mother Jo, subjected to abuse by her daughter’s father and former partner, Jesse Charlton, found herself entangled in criminal, family law, and immigration systems.


Via Community Village Sites
Carlos Batara's insight:


Immigration law has many flaws.  Deportation rules are at the top of the list.


This case represents one of several examples in which innocent victims of domestic abuse wind up being placed in immigration court proceedings to face removal charges.


For now, the only solution is to follow in the footsteps of this victim.  Don't give up.  Fight back.   


However, trying to handle a VAWA immigration case on your own is generally not a good idea.  The ordeal of this woman shows why.


Until VAWA protections are taken seriously by all agencies involved, and proper translation protections are put in place, immigrant women will remain crucially vulnerable to misguided deportation laws






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Immigration Detention Courts: Not The Friendliest Places On Earth

Immigration Detention Courts: Not The Friendliest Places On Earth | Immigration Court Hearings | Scoop.it

In an article entitled “I’d Like To Be Deported: A Day At Immigration Court,” Jeff Wrinkler describes his recent visit to watch immigration hearings. 

Carlos Batara's insight:


As a deportation defense lawyer, I've been to far more than immigrant detention centers than I care to acknowledge.


They have one overriding characteristic in common: a lack of friendliness and hospitality.


Thus, I found Jeff Wrinkler's article, I'd Like To Be Deported: A Day At Immigration Court, somewhat comforting - comforting only in the sense that it validates my perceptions.


When I think about the judicial system posing for immigration courts, I recall Adlai Stevenson quip, "I'm too old to cry but it hurts too much to laugh."



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Immigration Judicial Independence Still Missing

Immigration Judicial Independence Still Missing | Immigration Court Hearings | Scoop.it

Immigration Judges Have Joined The Ongoing Call To Create An Independent Immigration Court System.


Carlos Batara's insight:


What other evidence does Congress need in order to improve the immigration judicial system?


Besides the usual collective cries of immigrants, immigration reform advocates, and immigration attorneys, in recent months, two critically important legal organizations have joined to ask for an independent immigration court.


First, the American Bar Association releases a hard hitting report detailing many of the current system's shortcomings


Now, the Immigration Judges Association.


But more importantly, improvement is needed for those whose lives on the line: the immigrant defendants.


Take a not uncommon Inland Empire scenario.


Out of the clear blue, I get a frantic mobile Riverside immigration defense request, my first impulse is to encourage the caller to slow down. 


After all, the road to deportation relief, via the immigration court, is going to be a long bumpy ride.  


Unfortunately.


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Should Immigrants Hire Lawyers For The Fight Of Their Lives?

Should Immigrants Hire Lawyers For The Fight Of Their Lives? | Immigration Court Hearings | Scoop.it

Before You Act Alone, Here Are A Few Issues To Help Decide If A Deportation Defense Trial Attorney Is Essential To Your Success At Immigration Court.

Carlos Batara's insight:


Over my 20+ years of experience, I've met many immigrants who lost winnable cases.  A large percentage tried to go it alone, opting to represent themselves.  


This is, far more often than not, a recipe for disaster. 


Financial costs are not the only reasons immigrants fail to hire lawyers to help them.


As discussed in "Why Deportation Defense Attorneys Are Vital To Your Immigration Court Success", immigrants often succumb to mental traps which sink the dreams of their families:


  • Blindly trusting the news, or blindly trusting what they think the news reported;
  • Assuming because a friend won his or her case, some immigrants believe their cases won't be much different or more complicated;
  • Not working hard enough to prepare the evidence necessary to win;
  • Believing that hardships which will be caused to one's family are sufficient to win a judge's mercy.


Of course, victory can never be absolutely assured. 


Yet, all of these errors could be avoided with competent counsel, and that simple reality improves the odds of immigrant success.



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The Media Failure To Distinguish Deferred Prosecution Form Immigrant Victories

The Media Failure To Distinguish Deferred Prosecution Form Immigrant Victories | Immigration Court Hearings | Scoop.it
Nearly half of immigrants facing deportation from the US are now winning their cases before an immigration judge, their highest success rate in more than 20 years, says a new report.
Carlos Batara's insight:


It's not true.


It's not true, as the Christian Science Monitor wrote,  that "nearly half of immigrants facing deportation are now winning their cases before an immigration judge".


The Christian Science Monitor is not alone.  Over the past few days, similar stories have sprung up all over the country, from coast to coast.


They're wrong.


More accurately, perhaps 50% of immigrants are being allowed to terminate their case under prosecutorial discretion guidelines.  It does mean they have "won" their cases.


Thus, as a Riverside immigration lawyer, my ears perked up when I read the following headline: 


Immigration Reform News 2014: More Immigrants Are Winning Deportation Cases In Court by the Latino Times. I thought, well, maybe more immigrants are winning their cases this year, but 50%?  Nah.


I visit the Los Angeles and San Diego immigration courts nearly every week.  Based on these experiences, I have not perceived a 50% victory rate.


But don't take my word for it.  Here is the link to the TRAC Report which sparked this rash of reports.


The title of the TRAC study is ICE Success In Obtaining Removal Orders Drops To 50%..


The lack of ICE success does not mean immigrant victories.


Consider, for instance, the young immigrant defendants who claim relief under the Deferred Action For Childhood Arrivals (DACA) program. 


Have they really won their cases or are they being spared from deportation for the time being?  The hope, of course, is that they will win their legal residency.  It is by no means guaranteed.


Or how about those older immigrants who were placed in court proceedings due to low priority convictions or for residing in the U.S. without inspection or beyond their visa expiration date? 


Under prosecutorial discretion guidelines, many of these cases are removed from the immigration court system - "without prejudice" - for the time being.  Because they are dismissed without prejudice, they can be brought back later.


Usually, these matters are dismissed because the immigrants facing removal can show a grounds of possible adjustment to lawful permanent resident status in the future.


Because they are dismissed without prejudice in most instances, the possibility remains they will be refiled at immigration court someday.  This scenario is more likely for those  who still have to be approved for a family unity I-601 hardship waiver. 


So what is really going on?


First, ICE is detaining immigrants in record-breaking totals.  Our immigration court system, simply stated, cannot keep pace.


Second, there is a grave shortage of immigration judges at present.  Rather than kill themselves due to the excessive stress, it makes sense to  partner up with the push for prosecutorial discretion in low priority cases.


Given the back-and-forth of immigration reform discussions, why not delay matters for a short while to ascertain which way the wind will blow after November?


Third, it appears there may be a political motive at play here.


To be sure, I'm not complaining about cases being pushed out of court. I've been able to use the current impasse to some of my clients' advantages.


I am, however, displeased with media headlines which distort the reality of immigration wars today. 


Such carelessness gives reform opponents another flawed argument to stir anti-immigrant sentiments.


It also heightens the anxiety of immigrants who wonder why they are trapped in limbo and have not yet won their cases.


I would not be surprised if at least in some instances of sloppy news reporting that the carelessness is deliberate, not accidental.


By this time next week, I would not be surprised to hear that these statistics are further proof why reform opponents do not trust Obama on deportation policy.


Yet, on the issue of deportations, most immigrant rights advocates don't trust him either.


Ultimately, the recent news points to a far greater problem. 


While immigration reform has turned into a political circus for both major parties to capture votes in November, countless immigrant families, trapped in legislative limbo, continue to suffer .


For them, justice delayed is justice denied.

 







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A Litmus Test For Homeland Security Attorneys?

A Litmus Test For Homeland Security Attorneys? | Immigration Court Hearings | Scoop.it

According to anti-immigration reform critics, the Obama administration has hired new government lawyers to achieve backdoor amnesty. 

Carlos Batara's insight:


Justice may be blind. 

 

The legal system is not.

 

Nowhere is this more evident than immigration law.

 

Take, for instance, the comments of former Justice Department attorney, J. Christian Adams.  Appearing on Fox News, he claimed the Obama Administration was engaging in backdoor amnesty by hiring new lawyers who are openly hostile toward immigration enforcement.

 

According to Adams, the new attorneys have “activist pro-amnesty and pro-asylum” backgrounds, and hail from “radical open borders organizations.”


The Fox News interview can be found here: http://www.bizpacreview.com/2013/12/07/dhs-hires-dozens-of-activist-pro-amnesty-immigration-lawyers-88528

 

His criticisms overlook the real issue.  Simply stated, what is the proper role of DHS attorneys.


Of course, Adams’ comments were not intended to be objective.  His fiery criticisms stem from a political effort to influence certain legal outcomes.

 

In reality, as Adams statements imply, the recent appointments are another example of the interplay between our political and legal systems - which are not as separated in reality as taught in high school history courses.


A quick glance at this history illustrates how legal objectivity became secondary to political pandering.

 

Five decades ago, the Supreme Court entered the political thicket.  The justices were forewarned that once they entered, the court would never be able to disentangle itself. 

 

The court went forward anyway.  There was no alternative.  The political system was not willing to correct its own racial bias. 

 

Legal principles and political policies were placed on a permanent collision course.

 

Shortly afterwards, class action law suits became more common for those, liberal and conservative, seeking to overturn an unfavorable legislative outcome.  Although such matters were legal in nature, the agenda, more often than not, was political in origin.

 

During the 1980s, President Reagan stacked the federal judiciary.  The maneuver was politically inspired.  The president expanded the number of federal appellate seats, then quickly filled them with ideologically sympathetic appointees. 

 

From that day forward, liberal causes have been forced to fight a steeper uphill battle at federal courts on issues with political consequences.

 

Enter immigration law. 

 

Beginning in the early 1990s, conservative political forces have run over, around, and through existing principles of constitution law, such as due process, in passing wide-ranging changes to immigration law.  They were protected by a similarly politically slanted judiciary.

 

In recent years, as the Supreme Court has become more ideologically balanced, immigrant advocates have scored some legal gains. 

 

Some of these battles have been spurred by the rigid position taken by DHS lawyers.  Rather than exercise independent judgment, they have taken a hard line in accordance with the dominant political agendas. 

 

As a result, despite the setbacks, government immigration attorneys have remained rigidly conservative, exhibiting strong anti-immigrant sentiments.

 

As a deportation and immigration defense lawyer, I’ve often wondered what happened to the concepts of legal objectivity and impartiality.  Their absence seems more the norm, not the exception. 

 

How much longer can our legal system survive when combatants no longer believe in honorable conflict resolution, and instead adhere to a mentality of victory at any cost?

 

Against this backdrop, it’s easier to grasp Adams’ opposition to the appointment of a few   attorneys with a history of representing immigrants, an effort made to balance opinions within the Department of Homeland Security.

 

The resumes of the appointees show they do not lack in intellectual or legal merit.  Nor is there any reason to believe, despite their roles as private attorneys, they cannot uphold the duties required of DHS lawyers. 

 

After all, DHS attorneys are not mandated to prosecute every immigrant they encounter.  Rather, their roles include an assessment of cases to ensure that prosecutorial discretion, for a variety of reasons, should not be exercised.

 

Internal discussions on discretion are likely to become more wide-ranging and open-minded.

 

Unfortunately, in the view of critics like Adams, diversity of legal opinion in government circles is not viewed as a political good.

 

“This administration knows that personnel is policy,” notes Adams, “and they’re changing the personnel to change the policy.”

 

In his perspective, a litmus test should be applied to all government attorneys.  Only attorneys who have never assisted immigrants should be allowed to represent the government.    

 

Apparently, he never learned the reality that the law is a living instrument, evolving as society changes. 

 

And when it comes to shaping immigration reform which works for the United States, diversity of thought is crucial.  

 

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The Battle Over Immigrant Convictions Moves From Federal To State Courts

The Battle Over Immigrant Convictions Moves From Federal To State Courts | Immigration Court Hearings | Scoop.it
Riverside Immigration Attorney Outlines How Criminal Defense Lawyers Have Shifted The Battle To Eliminate Old Immigrant Convictions To State Courts.
Carlos Batara's insight:


When the U.S. Supreme Court issued its March 31, 2010 decision in Padilla v. Kentucky, many observers thought the ill effects of the Immigration Reform And Immigrant Responsibility Act Of 1996 (IIRAIRA) was finally coming to an end.


As with many legal arguments, however, the Padilla opinion left many unanswered questions.


The first and foremost pertained to the effective date of the Padilla ruling.


Did Padilla cover all immigration convictions, however old, similar to IIRAIRA's reach?  Did it only go back to the date IIRAIRA became law, on March 1, 1997?  Or did it only cover the period starting on the date of the Padilla decision?


Like most deportation lawyers, I had hoped for the first option.  As an alternative, the second option was acceptable.


The further back the decision went back, the more immigrants would be saved from automatic deportation for an offense committed before IIRAIRA became law. 


The government opted for the third option.  They pushed the issue back to the Supreme Court. 


On February 20, 2013, in Chaidez v. United States, the High Court agreed with their position, limiting their earlier ruling to cases which became final on or after March 31, 2010.


What had looked like a huge victory for immigrants had been watered down to a narrow win. 


For thousands of immigrants, who had already been sent back to their home country, the air had been sapped from their legal balloon which would lift them out of the Dark Age of Immigration Law. .


Defense attorneys, in response, opted for a new strategy. 


As explained in Putting Bite Back Into Padilla v. Kentucky: Cracking The Constitutional Code, criminal defense counsel decided to focus on state convictions. 


Since the Padilla and Chaidez cases involved federal court matters, they decided to challenge old convictions which arose out of state courts.  The goal remained the same.  To reduce the effects of pleading guilty without knowing the immigration consequences of their acts in advance.


Round One in Massachusetts went to the defendants. 


Round Two in New York, earlier this week, also went to the defendants.


This war is hardly over.


With a Congress unwilling to address its 1996 folly as part of current immigration reform discussions, expect the battles to rage for several months, perhaps years, in courts throughout the country.

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Appointed Counsel At Immigration Court Hearings?

Appointed Counsel At Immigration Court Hearings? | Immigration Court Hearings | Scoop.it
Imagine that you are a lawful resident married to a U.S. citizen serviceman who is deployed overseas, and you are looking for a job to help support your family.
Carlos Batara's insight:

Overall, the idea of having appointed counsel for unrepresented immigrants at deportation and removal hearings is a good idea.

 

However, the way in which the immigration system has controlled the legal process, it's not hard to imagine a stifling system of legal assistance being the actual outcome. 

 

Would there be a limit on hours a lawyer could charge for in helping someone from another country?  Not all cases are simple.

 

How would the attorneys be appointed?  Would there be a review panel to appoint certain attorneys?  And what would be the requirements? 

 

What about those lawyers known for their tenacity and willingness to oppose immigration judges and the government? Would they be allowed into the program?

 

Or would a new public defenders type of program be created?

 

I'm probably ahead of the pack raising such questions before the proposal even gains any momentum.  Of course, I'm accustomed to seeing great ideas in concept, when it comes to immigration reform, become distorted in everyday implementation and practice.

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Immigration Courts Struggling To Keep Up With Caseloads

Immigration Courts Struggling To Keep Up With Caseloads | Immigration Court Hearings | Scoop.it
In the last decade, the government has mounted a historic buildup of agencies responsible for immigration enforcement — namely, Customs and Border Protection and Immigration and Customs Enforcement, which are lately getting a combined $18 billion...
Carlos Batara's insight:

Sean Reilly points out a serious inconsistency with federal policy regarding detention and deportation policy, centering on a badly broken immigration court system.  

 

“In the last decade, the government has mounted a historic buildup of agencies responsible for immigration enforcement — namely, Customs and Border Protection and Immigration and Customs Enforcement, which are lately getting a combined $18 billion in the budget each year.”

 

On the other hand, “Struggling to keep up, however, are the 58 immigration courts that decide whether immigrants can legally stay in the country.”  Scarce resources are allocated to the court system, which is treated as the forgotten step-child of immigration reform.

 

Donald Kerwin, executive director of the Center for Migration Studies of New York, states the obvious: a huge imbalance in resources.  There is an “enormous enforcement infrastructure feeding into an adjudication system that’s not well-funded.”

 

For years, I tell skeptics to just do the math.  252 judges.  324,000 cases.  1,285 cases per judge per year.

 

Here’s a link to a short three-minute video which explains the problem in clear terms:    https://www.youtube.com/watch?v=Iu8EcLXvX68

 

It’s a serious overload.  Can justice and due process prevail in such a system?

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Shoddy Immigration Court Process Behind the Record Number of Deportations

Shoddy Immigration Court Process Behind the Record Number of Deportations | Immigration Court Hearings | Scoop.it
A blog dedicated to advancing constructive dialogue on immigration.
Carlos Batara's insight:

When I try to explain the immigration court and immigration appeal process to outsiders, they think I'm kidding.  No one, looking at the say our system operates, can objectively say it is based on fairness.  Rather, as this article implies, the role of immigration courts have been reduced to a matter of expediency - expediency aimed at advancing the aims of the government's law enforcement arm.

 

Yet, the immigration court is not mentioned in any of the current immigration reform discussions.  This means, of course, the president and Congress have no intentions of slowing down the ICE deportation machine.

 

Taking this logic another step, it means immigration reform, to the extent it occurs, is reform only for "legal" immigrants, not those who entered without advance permission.  But if immigration reform discussions omit the immigrant population which is without lawful status, how can any legislative package passed hope for long-term success?

 

 

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Bullies In Black Robes: A Critique Of Immigration Courts And Immigration Judges

Bullies In Black Robes: A Critique Of Immigration Courts And Immigration Judges | Immigration Court Hearings | Scoop.it
The young lawyer stepped tenderly to the podium.  His case was the first to be called on the 8:00 a.m. calendar. He seemed three months out of law school. As he spoke to the immigration judge, his ...
Carlos Batara's insight:

Over the past six months, I've seen a nice change in the attitude displayed by some immigration judges.  Perhaps the delays caused by the ill-fated joint task force, prosecutorial discretion, and DACA have allowed judges to "catch their breath and reduced their overload.  In any event, there are some who still insist on carrying on with acts designed to raise their blood pressure rates.

 

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New Migration Policy Institute Report Highlights Key Points For Immigration Reform

New Migration Policy Institute Report Highlights Key Points For Immigration Reform | Immigration Court Hearings | Scoop.it
Fewer than half of the non-citizens deported from the United States are removed pursuant to a formal hearing before an immigration judge, with the majority removed by the Department of Homeland Security (DHS) via its ...
Carlos Batara's insight:

Doris Meissner, an Immigration and Naturalization Service Commissioner during the Clinton years, sums the problems up with a law enforcement-first, law enforcement-only approach. 

 

She states, “Changes to the immigration system over recent decades have focused almost entirely on building enforcement programs and improving their performance. Yet even with record-setting expenditures and the full use of statutory and administrative tools, enforcement alone, no matter how well administered, is insufficient to answer the broad challenges that immigration poses for America’s future.”

 

Hopefully, someone in Congress is listening.

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