Judging the Judges in Immigration Court

by Jason Dzubow

To paraphrase Forrest Gump, Immigration Court is like a box of chocolates; you never know what you’re going to get. Also, some of the chocolate is poison.

For many applicants in Immigration Court, the most important factor in determining success is not the person’s story or the evidence or the quality of their lawyer. It is the judge who is randomly assigned to the case. According to TRAC Immigration, a non-profit that tracks asylum approval rates in Immigration Court, Immigration Judge (“IJ”) approval rates vary widely. For the period 2017 to 2022, asylum approval rates ranged from 0% (a judge in Houston) to 99% (a judge in San Francisco). Of the 635 IJs listed on the TRAC web page, 125 granted asylum in less than 10% of their cases. At the other extreme, nine IJs granted asylum more than 90% of the time.

Based solely on these numbers, there is a 20% chance (1 in 5) that your IJ denies at least 90% of the asylum cases that he adjudicates. That’s pretty frightening. But there is much more to the story, which we will explore below. (more…)

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How Do U.S. Immigration Courts Compare to Iranian Revolutionary Courts?

by Jason Dzubow

I recently read an article in the Washington Post about the treatment of political activists in Iran: “Protesters arrested in Iran face a justice system stacked against them.” Political detainees in Iran are denied due process of law, denied access to a lawyer, and forced to litigate their cases in a tribunal that acts more like a prosecutor than like a neutral arbiter. Reading about the situation in Iran, I couldn’t help but think of my own clients’ experience with EOIR–the Executive Office for Immigration Review, the agency that oversees our nation’s Immigration Courts and the Board of Immigration Appeals.

Here, we’ll look at some of the practices in Iran and compare them to what we see every day in U.S. Immigration Court. (more…)

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Due Process Disaster in Immigration Court

by Jason Dzubow

It is not easy to convey the magnitude of the ongoing disaster at EOIR, the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts. Simply stated, the agency is rescheduling and advancing hundreds–maybe thousands–of cases without notifying attorneys, checking whether we are available to attend the hearings or checking whether we have the capacity to complete the cases.

On its face, this appears to be a mere scheduling problem. But in effect, it is a vicious and unprecedented assault on immigrants, their attorneys, and due process of law. (more…)

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Top 10 Ways to Know If the Immigration Court Phone Line Has Been Hacked

by Jason Dzubow

We learned last week that hackers have been using the Arlington Immigration Court phone number to make “spoof” calls requesting personal information from the recipients. EOIR (the Executive Office for Immigration Review – the office that oversees the Immigration Courts) warns that, to “protect yourself, be wary of answering phone calls from numbers you do not recognize” and never “give out your personal information over the phone to individuals you do not know.” Good advice. But how do you know whether a call from the Immigration Court is, in fact, fraudulent?

Fear not, for I stand ready to assist. Below are the top ten ways to know whether a phone call from EOIR is a “spoof” or the real deal. If you receive any of the following calls, hang up immediately because it ain’t the Immigration Court– (more…)

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Remembering Immigration Judge David Crosland

by Jason Dzubow

I was very sorry to learn recently about the death of Immigration Judge David Crosland. Judge Crosland had been an Immigration Judge since 1997. I first met him when he arrived in Arlington, Virginia in about 2008. He later transferred to the Baltimore Immigration Court. Over the years, I have had many cases with Judge Crosland. In fact, I was scheduled to see him for an Individual Hearing tomorrow, for an Iraqi woman seeking protection from militias and terrorists in her home country.

Judge Crosland had his own style. Unlike most IJs, he started his hearings by questioning the applicants about their activities and instances of harm. Once he finished and established a framework for the case, he would turn things over to the applicant’s attorney. We then had to build on his framework (and often correct issues that came up during his questioning). While this was a challenging way to present a case, and left us with more uncertainty about how the direct examination would go, it also allowed Judge Crosland to hone in on aspects of the case that were of most concern to him. I will say that this was not my favorite way to present a case, and applicants were often confused by the IJ’s questions (and his soft voice). Nevertheless, Judge Crosland almost always “got it right” and it was hard for me to disagree with his decisions, even if we did not get the outcome we wanted. (more…)

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Don’t Forget to Update Your I-589

by Jason Dzubow

It’s common these days to find asylum seekers at the Asylum Office and in Immigration Court who filed their asylum application, form I-589, five, six, seven or more years ago. During that time, some information on the form becomes out of date. Also, new events occur which need to be added to the form. What is the best and most efficient way to update your asylum application at the Asylum Office and in court? (more…)

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Prosecutorial Discretion in Immigration Court

by Jason Dzubow

The Department of Homeland Security (the prosecutor in Immigration Court) has been implementing new rules related to its “enforcement priorities.” These rules apply to people who have cases pending in Immigration Court, meaning that the U.S. government is trying to deport them. Not surprisingly, the government wants to deport some people more than others. Under the new rules, cases that are not a priority for removal may be dismissed as a matter of prosecutorial discretion or PD. When that happens, the government has stopped the removal/deportation process and the noncitizen is able to remain in the United States.

Here, we’ll talk about who might qualify for PD, the different types of PD, and how to request PD from DHS. (more…)

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AAAAAAAAAAAAAAAAAAAAAH!!!!!!!!

by Jason Dzubow

Let me tell you about some recent events in my office.

We had two cases set for individual hearings this week. Both cases involve noncitizens who have been waiting years for their decisions, both have family members abroad who they hope to bring to the U.S. if their claims are successful, and both have strong cases for asylum.

For the first case, we prepared and submitted evidence earlier in the pandemic, but the case was postponed at the last minute due to Covid. We were hoping that the new date would stick, given that restrictions are easing and the court now has a system to do cases remotely (called Webex). As the date approached, we filed additional evidence and scheduled two practice sessions for the client. We also regularly checked the Immigration Court online portal, which lists our court dates, to be sure the case was still on the docket. (more…)

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The Cheater’s Guide to Video Hearings in Immigration Court

by Jason Dzubow

Due to the pandemic, many Immigration Court hearings now take place via WebEx, which is similar to Zoom. There are certainly disadvantages to presenting an asylum case by video. It’s more difficult to relate to the Immigration Judge (“IJ”), for instance. And it’s not easy to submit additional evidence at the last minute. On the other hand, in the words of John Adams, “Every problem is an opportunity in disguise!” In our case, WebEx presents some interesting new opportunities.

Having now done a couple WebEx hearings, I have been thinking of how to use the new service to my clients’ advantage. Below are some ideas that I have yet to implement, but which could assure victory, even in the most difficult case. If we try any of these strategies in my office, I’ll be sure to let you know how things turn out… (more…)

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Cancel Culture in Immigration Court

by Jason Dzubow

For “respondents” (non-citizens in removal proceedings) and their lawyers, Individual Hearings in Immigration Court are a big deal. Evidence must be gathered. Affidavits have to be prepared, checked, and re-checked. Witnesses must be identified, convinced to attend the hearing, and prepared for trial. Respondents practice their testimony. In most cases, the noncitizen has been waiting for many months or years for the trial date. The result of the trial determines whether the applicant can remain in the United States or must leave. When a respondent receives asylum, he is permitted to stay in the U.S. If he loses, he may be deported to a country where he faces danger. In many cases, respondents have family members here or overseas who are counting on them, and the outcome of the case affects the family members as well as the respondent. All of this provokes anxiety and anticipation. In short, Individual Hearings are life-changing events that profoundly effect respondents and their families.

So what happens when the Individual Hearing is canceled? (more…)

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Ten Suggestions for David Neal, the New EOIR Director

by Jason Dzubow

On September 24, 2021, Attorney General Merrick Garland announced that David Neal would take over as Director of the Executive Office for Immigration Review (“EOIR”), the organization that oversees our nation’s Immigration Courts and the Board of Immigration Appeals (“BIA”).

Director Neal was Chairman of the BIA, from 2009 to 2019, when he was apparently forced out by the Trump Administration. Mr. Neal also served as Vice Chairman of the BIA, Chief Immigration Judge, Assistant Chief Immigration Judge, Immigration Judge (“IJ”), and Assistant to the Director. Indeed, he comes to the Directorship with probably more and diverse EOIR experience than any prior director. To top it off, he has a Master of Divinity from Harvard University (and of course a JD, but those are a dime a dozen).

The new Director will certainly need to draw on his past experience–and possibly seek divine intervention–as the agency he is now helming is a real mess. Currently, there are more than 1.4 million cases in the Immigration Court backlog. I have not found recent data on the BIA backlog, but in April 2020, it stood at 70,183 cases. To address the court backlog, EOIR is staffing up–from 535 judges to a projected 734 by the end of the current fiscal year (September 30, 2022). We are also seeing an increase in online and training resources for respondents (noncitizens in immigration proceedings) and practitioners.

Even during his short tenure, Director Neal has begun to take some positive steps. Aside from the new resources, EOIR has ended case completion quotas for Immigration Judge and also signaled a willingness to work with the National Association of Immigration Judges (the judges’ union), which the prior Administration had tried to de-certify.

These are encouraging signs, and hopefully we will also start to see improvements related more directly to respondents’ cases in Immigration Court and the BIA. Luckily for David Neal, I am here to offer my own suggestions (and who doesn’t love unsolicited advice?). These are my ten great ideas for EOIR– (more…)

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Death by Bureaucracy

by Jason Dzubow

What’s it like to practice immigration law these days?

For a case in Immigration Court, we write the affidavit, gather evidence, get witness statements, research country conditions, organize everything, copy it, and submit copies to the court and to DHS within the 30-day deadline. We then hold practice sessions with the client and witnesses. A few days before the trial date, we check the online system. The case is canceled. There is no new date. There is no explanation.

We file an application for an asylee’s Green Card. The case takes forever. The client moves. We file a change of address and get an online confirmation. Finally, the client receives an online notice: The Green Card has been mailed and delivered. But not to his current address. USCIS has sent the card somewhere else. Maybe to his old address, but who knows? He does not have it, and requests to re-deliver the card have no effect. (more…)

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Chaos in Court

by Jason Dzubow

A few months ago, I wrote that what applicants and lawyers need from the Biden Administration is predictability. Unless we know what to expect from “the system” and when to expect it, people cannot properly prepare their cases or have them fairly adjudicated. Unfortunately, what we have been seeing recently is the opposite of predictability–it is chaos, at least at the Executive Office for Immigration Review (EOIR – the agency that oversees our nation’s Immigration Courts). Here, I will offer a few pieces of evidence in support of this proposition–

Exhibit A: The Immigration Court (or lack thereof) in York, PA

The Immigration Court in York, PA is located inside the York County Prison, which houses ICE detainees. After recent negotiations between the feds and the county failed to produce an agreement, ICE announced that all its detainees would be transferred to other facilities by August 12. With immigrant detainees set to leave York, EOIR informed court staff on June 30 that the Immigration Court would close by late July, and that all staff needed to take assignments at other courts (often in distant locations) or find new jobs. Besides being disruptive and demoralizing for EOIR staff (many of whom have been working in York for years, and have their homes and families there), the abrupt decision to close the court has left noncitizen detainees isolated from their families and their lawyers, and will make preparing their cases even more difficult. (more…)

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The Art of Denying Asylum

by Jason Dzubow

Preparing an asylum case is a bit like building a fortress. You make the walls as strong as you can, re-enforce weak points, and hope for the best. It’s the job of the Asylum Officer, the DHS attorney (the prosecutor), and the Immigration Judge to probe for weaknesses and, where appropriate, break down the defenses. If they succeed, you lose your case. So here’s my theory: An adjudicator who wants to deny asylum can deny asylum. Some cases may be harder to deny than others, but a smart decision-maker can punch holes in even the strongest and most well-prepared asylum case.

In my own practice, I recently lost a case where the Immigration Judge meticulously deconstructed the asylum claim in order to deny relief. This was one of those cases that some IJs would have granted, and others would have denied. It so happens that our IJ has a 93.5% asylum denial rate, and so the odds of success were always pretty slim. But the decision got me thinking about how judges and Asylum Officers decide cases, and about whether I can do more to prevent future losses. (more…)

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The Return of Prosecutorial Discretion

by Jason Dzubow

The Trump Administration’s onslaught of anti-immigrant rule-making, combined with increased enforcement, pushed the Immigration Court backlog to new heights–there are currently more than 1.3 million noncitizens in removal proceedings.

When Joe Biden came into office, we were hoping his Administration would move quickly to un-do the damage caused by his predecessor, and to issue new, badly-needed administrative (and hopefully legislative) changes. To be fair, there have been some changes, especially to the more high-profile Trump-era policies such as the Muslim travel ban and the Migrant Protection Protocols. Progress in other areas has been slower, but now–after more than four months of deliberation–we have a new DHS memo on prosecutorial discretion.

The purpose of the memo is to guide DHS/ICE attorneys (the prosecutors in Immigration Court) about their enforcement priorities, i.e., who should and should not be a priority for deportation. The ability of prosecutors to make these decisions is important, since there are not enough resources to deport everyone, and DHS needs to decide where to focus its efforts. The new memo sets forth how DHS attorneys should exercise their “prosecutorial discretion” or “PD.”

(more…)

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