Thread by @ReichlinMelnick

This morning, the House Judiciary Committee will be holding a hearing on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.”

I’ll be following it live!

The hearing starts at 9:30 and will be streamed here. judiciary.house.gov/calendar/event…

At today's hearing on immigration courts, four witnesses will testify:

- Jeremy McKinney, Second VP of AILA
- Ashley Tabaddor, President of the Nat'l Assoc. of Immigration Judges
- Judy Perry Martinez, President of the ABA
- Andrew Arthur, former IJ and fellow at CIS

The hearing begins with @RepZoeLofgren giving her opening statement, saying that "For far too long, our immigration courts ... have not functioned as they should."

She notes that recent changes in the system, like case quotas, have only made the court's dysfunction worse.

@RepZoeLofgren .@RepZoeLofgren lays out her vision:

"In other areas of the law such as bankruptcy and tax, Congress established independent Article I courts where political influence over adjudicators is limited. Creating an independent immigration courts seems to me like a no-brainer."

@RepZoeLofgren We move to @RepKenBuck, who begins by saying he's "confident" that immigration judges provide due process, and says "in any court system, issues will arise that will affect the caseload, backlog, and morale of those that work there," and praises new policies to address those.

@RepZoeLofgren @RepKenBuck Continuing, @RepKenBuck says "the system rewards fraudulent claims" because of the long backlogs in the system, and claims that there is an epidemic of people missing court.

As I've explained repeatedly, that's simply not true. Read our fact sheet here! americanimmigrationcouncil.org/research/immig…

@RepZoeLofgren @RepKenBuck We now move to the witnesses, with Judge Tabaddor, NAIJ President speaking first.

"I have served in the Department of Justice for over 20 years." She notes that the "law enforcement focus of the [DOJ] has consistently interfered with and compromised the immigration system."

@RepZoeLofgren @RepKenBuck Judge Tabaddor says that the case completion quotas in immigration court pit judges' financial well-being against their oaths of office, an inherent conflict of interest.

She also says they don't work. "Fiscal year 2019 is over. Did the policy reduce the backlog? Of course not!

@RepZoeLofgren @RepKenBuck Stunning figures on case completion goals from Judge Tabaddor.

She reveals that over 67% of immigration judges did not meet the 700 case completion quota in FY 19, and more than 99% of judges did not meet the requirements of all the case completion metrics.

@RepZoeLofgren @RepKenBuck Judge Tabaddor concludes! "Imagine stepping into a courtroom where your life depended on the outcome of the case, only to find out that the judge was hired by the prosecutor, that she can be fired by the prosecutor, that the prosecutor can step in any time...

Judge Tabaddor continues: "...the prosecutor can step in any time to overrule the judge, and by the way, the prosecutor would really like the judge to finish the case today. This is not what American stands for."

She calls for ending this system and creating independent courts.

Next on to @McKJeremy, who says that "our immigration court system has a conflict of interest built into it," arguing that the court system is an arm of the law enforcement apparatus that is the Department of Justice, and cannot be independent while that is the case.

@McKJeremy @McKJeremy calls out the Trump administration's Attorneys General for limiting judges' ability to manage their dockets.

"The judge is forced to clog her docket with contested cases about children," even though another agency could resolve the case.

@McKJeremy Now on to Judy Perry Martinez (@ABAPresident), who says that "There are serious challenges to due process in our current immigration court system. Judicial independence is at significant risk, and fundamental change is necessary."

@McKJeremy @ABAPresident .@ABAPresident Martinez also calls for Congress to continue funding the Legal Orientation Program, which the Trump Administration has sought to end, but which Congress has continued to fund over EOIR's objection for the past two years.

@McKJeremy @ABAPresident Now on to Art Arthur from the Center for Immigration Studies, a former immigration judge who's worked for CIS for several years.

He begins by saying that EOIR was often inadequately funded and treated as an afterthought for years. I don't disagree with him on that.

@McKJeremy @ABAPresident Unlike other witnesses, CIS's Art Arthur mostly begins by talking about the "border crisis," attributing the backlog primarily to that.

He says that DOJ has "responded to the crisis where Congress has not," and praises Attorneys General Sessions, Whitaker, and Barr.

@McKJeremy @ABAPresident What's particularly telling about Art Arthur's testimony is that he points directly to falling border numbers as a success caused by changes at the immigration court system.

That's a tacit admission that the system is politicized and aimed at reducing border crossing.

@McKJeremy @ABAPresident As he concludes, Arthur says that he disagrees with the idea of independent immigration courts, suggesting somehow that it would limit oversight over the agencies, and would cost too much.

@McKJeremy @ABAPresident We start with questions from @RepJayapal. She asks Judge Tabaddor how restrictions on continuances and administrative closure have affected judges.

Judge Tabaddor says they stripped discretion from IJs, forcing them to carry hundreds of cases which aren't ready for resolution.

@McKJeremy @ABAPresident @RepJayapal Briefly returning back to Art Arthur's arguments against immigration courts.

Turns out that under Obama, the Center for Immigration Studies actually advocated in FAVOR of Article I courts.

I wonder what's different now.🤔

cis.org/Press-Release/…

@McKJeremy @ABAPresident @RepJayapal Returning to questioning, @McKJeremy talks about the problems caused by speeding up cases. He highlights the ways in which this causes chaos for judges and for lawyers, making it really hard for people to prepare for cases.

Here's an example of that!

https://twitter.com/cbrownimmlaw/status/1222249264975245312

@McKJeremy @ABAPresident @RepJayapal Now we move to @RepAndyBiggsAZ, who begins by saying "we need to get a handle" on the immigration courts.

He asks Art Arthur what "bright line rules" and "resources" are necessary.

Arthur says more staff, judges, and law clerks are needed.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ When it comes to what changes in "bright line rules" he thinks should change, Art Arthur gives as an example of a vague rule the standard for a continuance of "good cause shown." He thinks more standards should be added to that.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ Now we move to Rep @JoeNeguse, who begins by saying "Shrouded in secrecy, the immigration court system run by the DOJ been dysfunctional for years. ... Housing our immigration court system in the DOJ has left it vulnerable to political interference."

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse Rep @JoeNeguse is now focusing on the problems with the "family unit docket," focusing on the problems it's caused in Denver. He asks @McKJeremy whether this docket has interfered with asylum cases.

Denver lawyers make clear it's hurt due process.

https://twitter.com/cbrownimmlaw/status/1138182891601584128

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse Rep @JoeNeguse then asks Judge Tabaddor about the family unit docket. She says that the docket creates "assemly line justice," and leads to a "factory model" where judges feel required to adjudicate cases on a rushed fashion.

Neguse then pauses to note how awful that sounds.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse Now we move to @RepKenBuck, who expresses frustration with most of the witnesses for not mentioning the backlog being increased by people crossing the border. He suggests that "fundamentally different circumstances at play" likely explain differences in asylum grant rates.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck Rep. Buck pushes back on confusion about statistics. "When you use statistics in a misleading way, it doesn't help us get to an answer."

He then confuses the heck out of @McKJeremy by asking him if you can apply for asylum at a consulate outside the United States.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck In echoes of Trump, @RepKenBuck now argues that it doesn't make sense that asylum seekers are allowed to go in front of a judge when they "break the law" and enter at the border.

@McKJeremy pushes back, making clear the Due Process applies to "all persons," not just citizens.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck We now move to @RepEscobar, who begins by making clear that her district of El Paso has been ground zero for the Trump immigration's policy.

She calls the message "let's just speed it up" is troubling, suggesting that this focus on speed ignores the rights of asylum seekers.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar Now @RepEscobar discusses @TRACReports's study revealing data missing from @DOJ_EOIR's databases.

She says that @USGAO has agreed to investigate this! Did not know that.

Judge Tabaddor says "key portions" of data is being manipulated by @DOJ_EOIR.

trac.syr.edu/immigration/re…

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO Now Judge Tabaddor talks about the way statistics can be made to confuse the reality, and the way that EOIR has done that to push certain messages.

She specifically points out data on in absentia rates.

I explained how EOIR abuses this data in my Op-Ed. wsj.com/articles/trump…

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO We now move to @RepArmstrongND, who begins by noting that judicial vacancies aren't only occurring at EOIR. He discusses major problems with inadequate resources and missing judges in the federal court system too (very true!), and emphasizes that EOIR is not unique in this.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND In a long statement, @RepArmstrongND points out that independent immigration courts wouldn't solve resource problems that already plague the fully independent federal judiciary. He's certainly right on this, I agree.

But I don't think that's a good argument against independence!

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND It's interesting hearing @RepArmstrongND and Art Arthur's resource-based arguments against independent immigration courts.

In essence, the argument is that because it would cost too much, it's not worth having an independent system.

I'm just not sure I agree with that.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND We move now to @RepDMP, who says "the system is vast and complex, but it is completely absurd and incomprehensible that a child is expected to appear in court without the representation of a lawyer and plead his or her case," and describes that as "truly appalling."

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP Glad to see @RepDMP call out the fact that children don't have the right to a lawyer in immigration court as a problem!

She asks @McKJeremy what the current process for kids in this situation is.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP A powerful story from @McKJeremy, who highlights the absurdity of a system where the only way a 5-year-old without an attorney managed to contact him was because the judge at the court called him and asked whether he could take the case.

That's not a practicable system!

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP Moving to Rep. @JacksonLeeTX18, who asks about immigration judge hiring, including hiring many people with no immigration law experience.

Judge Tabbador says diversity of background is missing from current immigration judge hiring.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 In response to politicized hiring of judges, @McKJeremy says the real answer should be changing the law to limit the possibility that immigration judge hiring is politicized, suggesting an advisory board that looks at hiring on a nonpartisan manner, focusing on experience.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 In a quick question from Rep. @JacksonLeeTX18 about MPP, Judge Tabaddor says judges at the border are "overwhelmed" by MPP cases, and are asked to hear over 100 cases a day and rushed forward.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 We now move to @RepDLesko, who begins by asking Art Arthur if EOIR under Trump has told "immigration judges how they should rule in any particular case."

He says it's not true, and that asylum grant rates are higher in FY19 than in FY16 and 17.

Huh? That is not true at all.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 @RepDLesko The only thing I can think of that Art Arthur meant is that the raw *numbers* of asylum grants have gone up, which is true.

But the grant rates have gone down, as everyone agrees.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 @RepDLesko Art Arthur then says that the main goal of asylum adjudication should be to focus on the "good cases" and quickly get rid of the "bad cases."

The obvious problem with that idea is that you can't magically tell which is which—and the consequences of getting it wrong are dire.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 @RepDLesko On hiring, @RepDLesko asks Art Arthur about how many immigration judges should be hired. He suggests that the number of immigration judges should be 700 total, almost 300 more than current.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 @RepDLesko We now move to @RepMGS, who introduces Human Rights' First's report on appearance rates in immigration court into the record, and asks Judge Tabaddor about the effect of lack of counsel and structural problems causing people to miss court.

humanrightsfirst.org/resource/immig…

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 @RepDLesko @RepMGS .@RepMGS asks Judge Tabaddor about the role that EOIR plays in people missing court.

Tabbador says that the court reshuffling cases is definitely cause of that, when some hearings are randomly moved forward by months, with little time to get notice to the immigrant.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 @RepDLesko @RepMGS .@RepMGS also emphasizes the role that representation plays in immigration court.

She powerfully discusses how detained immigrants often can't win without a lawyer.

It's true. People with "good cases" (as Art Arthur would say) lose asylum because they don't have lawyers.

@McKJeremy @ABAPresident @RepJayapal @RepAndyBiggsAZ @JoeNeguse @RepKenBuck @RepEscobar @TRACReports @DOJ_EOIR @USGAO @RepArmstrongND @RepDMP @JacksonLeeTX18 @RepDLesko @RepMGS And with that, the hearing concludes. Thank you for following!

I also want to take this opportunity to share @immcouncil's statement for the record.

Read here why we think this hearing was necessary in the first place!

americanimmigrationcouncil.org/advocacy/crisi…