Text of Roy Berg's June 26 Speech to Immigration Judges

Speech of Royal F. Berg to the Immigration Judges Annual Conference
June 26, 2000, Las Vegas, Nevada

Thank you. Director Rooney, Chief Judge Creppy, Mr. Hussey, Mr. Dixon, Chairman Schmidt, members of the Board of Immigration Appeals, Immigration Judges of America—Your Honors.

Last year you honored AILA with an invitation to speak before you in Miami—and you honored me with your kind comments. This year you honor us again with an invitation to speak again. And on behalf of our national president Maggie Catillaz and our executive director Jeanne Butterfield, and the more than 6000 members of AILA, I thank you for the opportunity to share with you our thoughts and concerns from the perspective of the private bar, and our views on the developing role of the immigration court in the new millennium.

We have just completed our annual conference in Chicago—with over 3000 in attendance. I would be remise if I did not take this opportunity to thank the representatives from EOIR who took part— Judge James Fujimoto, Judge Robert D. Vinkioor, our past national president, Judge Polly Webber, and Judge Gabriel Videla, who took the part of a United States District Court Judge in mock habeas and mandamus hearings. And from the excellent reviews he received, perhaps that is a foreshadowing of his future.

We wish to also thank Director Rooney, Deputy Director Peggy Philbin, Deputy Chief Immigration Judge Tom Pullen, and Chief Administrative Hearing Officer Jack Perkins. We wish to especially thank BIA Chairman Paul Schmidt, who not only spoke on several panels and contributed a substantive article to our materials, but also brought along three other members of the Board.

As you may be aware, the Board heard oral argument on two real cases while we were meeting in Chicago, holding oral argument at the United States District Court so that several hundred lawyers and law students could attend. Board Member Mathon and Board Member Miller, along with Board Chair Paul Schmidt. A third case had been scheduled, but settled prior to the argument, as it involved the issue of whether burglary to an auto was an aggravated felony, a question answered in the negative by the Board recently in Matter of Perez.

And of course, we wish to thank Board Member Rosenberg—who also spoke on several panels. We would also like to thank Board Member Mascoto, who, though he was scheduled to attend and be on the oral argument panel, was unable to attend due to inclement weather, which cancelled his plane. Board Member Mascato helped with the background work and logistics to make the oral arguments in Chicago a reality, and we thank him for his efforts. It is our hope that the Board will have the oral argument again at our annual conference in Boston, next June.

In her presentation before us, your deputy director, Margaret Philbin, discussed a book entitled “Who Moved My Cheese?” and recommended it to us. I commend it to you as well. It discusses how to deal with change in the work environment and the reality that the only constant today is change—and change at an ever-increasing pace.

We have seen many changes since the Immigration Court took its present form some 17 years ago—statutory, regulatory, case law changes—but perhaps far more dramatic has been the increasing and ever more complex presence of technology in what we do. We know that your agency not long ago undertook the tremendous expense and difficult task of completely replacing what had been a state-of-the-art Wang system—when it had been installed—with all new and more advanced and user-friendly system. Many of these technological changes have been very good—we salute the EOIR on your 800 number and on your excellent Web page—and on the proposal to be able to track pending cases through the Internet.

We thank EOIR and especially Peggy Philbin for reaching out to AILA for our input on your technological initiative. Two members of our liaison committee, Tom Elliot of Virginia and Marshall Cohen of Atlanta, represented us on a working group—thanks to your invitation. We look forward to working closely with you on this important and vital effort in the future.

We welcome the coming opportunity for electronic filing, the ability to pay fees electronically—and now with the passage of the S.B. 761 legislation that allows for the validity and enforcement of electronic signatures, no doubt all of this will come closer to reality. More and more federal and state courts are permitting electronic filing of motions and briefs—and this practice will no doubt become more commonplace in the coming years. We, though challenged by it, have pledged ourselves to work with you to see that your pilot project is a success—and that it becomes the rule rather than the exception in the coming years.

We salute you for the excellent Web page—and the tremendous amount of information that is available. On that vein we also salute you for your new BIA procedures manual, which I know is available on your Web site. It is excellent and has already proven itself very helpful to our members in the representation of their clients.

However, we are not believers in technology for technology’s sake. We must remain vigilant that technology not dehumanize the important process in which all of us are involved. We remain concerned that video hearings—particularly for incarcerated individuals—will limit our ability to adequately represent our clients and hamper due process. We are even more concerned that unrepresented individuals will not have an opportunity to personally examine the evidence presented against them and to vigorously defend themselves.

We remain concerned as well about the rules of professional responsibility. Following their publication in January 1998, we submitted over 300 comments. We were told that some of our suggestions were incorporated into the latest draft. However, our requests to see the final draft before publication, or that, given the long period of time since initial publication and the changes made, the latest version be published in the Federal Register in draft form, have both been denied.

We remain very concerned about the lack of contempt rules. We see no reason for the INS to take part to the exclusion of the private bar in those discussions. We have asked to take part in these important talks, and have been told that it was not time yet. When will it be? If we are going to be bound by these rules, let them be the product of all of our input. Let us take part in the discussions. If not, we believe that the EOIR should issue contempt rules despite the protestations of the INS.

We are not opposed to you having contempt powers—we welcome it. However, to be fundamentally fair, the contempt rules and the rules of professional responsibility must apply equally to the INS trial attorneys and to the private bar. We have a concern that the EOIR appears to be under the growing influence of the larger and better-funded INS. We fear that it will take away your independence and your ability to issue fair decisions, and that your efforts at ensuring due process and fundamental fairness will be jeopardized by those who are “enforcement minded.”

We are concerned about the inexcusable number of precedent decisions issued by the Board involving pro se respondents. We are pledged to work with Steve Lang, your new pro bono coordinator, and to see that this regrettable practice becomes a thing of the past.

We all know that legislation enacted in 1996 was regressive—it was horrific from the standpoint of those of us who represent foreign nationals. The retroactive application of law is wrong! Mandatory and life-long detention are wrong! The preclusion of any form of discretionary relief in too many cases is wrong! The time-restrictions on asylum and on the ability to obtain employment authorization for asylum seekers were ill-advised, and contrary to our international obligations! It seems the main purpose of our asylum system today is to deny the permission to work. In this day and age when employers are crying for workers, it simply makes no sense to continue this practice.

As I told you in Miami last year, I believe that the greatest insult paid by the Congress, through its harsh and cruel 1996 enactments, was not to the elderly or the poor immigrant or those who had run-ins with our criminal justice system—though clearly all of those were negatively impacted. The greatest insult was to you—for the Congress, though it raised your pay, took away your power of discretion in so many cases. The Congress said that it did not trust you to exercise the discretion you had been hired and trained to exercise.

The ’96 laws were the product of an insanity of xenophobia, nativism, racism, and, yes, outright hatred of the foreign born, which seemed to pervade our national consciousness. Immigrants were suddenly the cause of all our problems, real and imagined, and the solution was detention, denial of relief—often, in the case of those arriving or returning after being removed, with no hearing at all before you. The solution was to deny, detain, and deport—and the Due Process Clause, the sacred writ of habeas corpus, and, yes, even the Constitution be damned.

We oppose the laws which took discretion from your capable hands. We strongly support HR 1485, which would restore much of your discretion to set bond and grant relief. We note with interest and fascination the letter from 28 members of Congress to the Attorney General, encouraging her to develop guidelines for prosecutorial discretion in removal cases—and the reply from Assistant Attorney General Robert Rabin, in essence calling their bluff, saying that it was Congress who took the discretion away from you, the judges, who were trained and experienced in handling these cases—and to determine in your discretion which individuals should be detained, which should be deported, and which should not be. HR 1485 is still pending, and is picking up support, and hopefully will be enacted.

We note that the Supreme Court in American Arab also discussed prosecutorial discretion, saying that the Executive has the power to terminate proceedings at any time. We believe therefore that not only the INS, but also you immigration judges, as the designee of the Attorney General, and within the Executive Branch, have the authority to terminate removal cases in appropriate situations. We call on you to exercise this authority.

We note with interest that Congressman McCullom’s bill, HR 185, which would establish the United States Immigration Court, is being seriously discussed. While we support the underlying concept of greater independence and authority for you, we are concerned about a number of the bill’s provisions. For example, an immigration judge could be removed for a physical disability—and any judge removed could never appear again in a private capacity before the immigration court. We are also concerned about the bill’s provision that judicial review would be only by certiorari, rather than by right, and would be only in Court of Appeals for the Federal Circuit. We will continue to study the proposals and make our views known on Capitol Hill.

We strongly believe that you should be generously compensated for your work, and evaluated on the quality of your jurisprudence, not quantity of cases you complete.

We remain concerned about proposals to limit evidence and testimony. We understand the concerns of unnecessary documents and repetitive witnesses, and we understand that you are limited as to the time you have to read what we present. Please understand, we have an ethical obligation to zealously represent our clients to the very best of our abilities, and that these cases all too often involve issues of life and death, of whether a family will realize the American dream, or suffer the nightmare of deportation. If our efforts at zealous representation conflict with the pressures put on you to do more cases, then so be it.

We pledge ourselves to work with you in local and national liaison to try to resolve this. To paraphrase Justice Douglas—due process isn’t cheap, quick, or easy, but it is the law of the land, and it is what separates us from the arbitrary and capricious and tyranny.

We are very concerned that Matter of Soriano remains a precedent decision, even though as Chairman Schmidt pointed our in his dissent in Matter of Truoung, nearly every court to squarely addressSorianohas rejected its reasoning. In the Seventh Circuit, based on a decision entitled LaGuerre v. INS, that court is now the only one in the country to accept Soriano, and we are faced with the anomaly that individuals who were granted 212(c) by an immigration judge in Chicago, but did not have a final decision, because of a Service appeal, are being deported, because of the interplay of Sorianoand LaGuerre. If their hearing had been held in any other part of the country that wouldn’t have happened. Such a patently inequitable system is wrong, violative of equal protection, and must be changed. We call on the Attorney General to withdraw Soriano, to issue new regulations now. We were promised a resolution of this problem by May 15, 2000, and that date has come and gone—and still nothing has happened. We understand that the Elian Gonzalez case took the time of many in senior positions, but the time for government action is now.

We are very concerned about the use of the automatic stay of your orders granting bond—which has the practical effect of using government power to force individuals to either face incarceration or give up their fight to stay in the U.S. That is not justice, it’s thuggery, and must be stopped.

For the last three years I have had the very distinct privilege of serving as the chair of the liaison between AILA and EOIR. I am stepping down as chair and turning the reins over to Brian Bates of Texas. He sends his regards, and looks forward to working with your senior officials over the next year—to present our concerns and to listen to yours, and work to do better that which all of us do. My role will be to serve on the General Counsel liaison committee, and hopefully coordinate a meeting of representatives of Mr. Cooper’s office, with Mr. Rooney’s office, and AILA, to discuss concerns to all three of us.

One of the areas which we hope to address is the adjudication of I-130s for beneficiaries who are in deportation or removal proceedings. The trial attorneys push for the removal to go forward, but plead powerlessness when it comes to getting the I-130 adjudicated, which, if approved, would allow the beneficiary to adjust before you. The difficulty in getting I-130s adjudicated is an unfortunate reality—even if the I-130 is based on a family relationship other than marriage, and when the marriage occurred prior to the commencement of proceedings. Why can’t a new combination I-130/I-485 form be developed, so that you can adjudicate both? Why should you have to hold cases on your docket to await the decision on a simple I-130, which should take ten minutes to adjudicate but now takes several years?

We also hope to discuss holding hearings in neutral locations, not controlled by the INS. We salute those of you who have had the courage to ask that shackles be removed during hearings, for individuals who are clearly not dangerous.

We also hope to discuss 212(a)(9)(B)—three- and ten-year bars. Nearly four years after enactment there are still no regulations. How can it be that a person who has to appear before you, or risk an in absentia removal order, risk accruing additional unauthorized presence? Why can’t the waiver of the three- and ten-year bar be adjudicated before the person goes to a consulate appointment? Why can’t you be given the authority to adjudicate a 212(a)(9)(B) waiver for a person who can’t adjust before you, but only wishes voluntary departure, to go to the consulate appointment? The standard is extreme hardship—all of you here are trained to make decisions involving extreme hardship.

What is happening now is individuals married to United States citizens are going to consulates like Ciudad Juarez to process for their permanent residence visas. There they are being told that they are subject to the three- or the ten-year bar, and to apply for the waiver. Your Honors, even with the intervention of a congressperson the waivers are taking 18 months or longer to adjudicate. Many are simply returning illegally to be with their wives and children—feeling morally compelled to support them—and are being arrested at the border and incarcerated and charged with illegal entry. Instead of being able to be with their families, and to work and pay taxes, the wives and the children are suffering, and we all paying for the man’s incarceration. The system is not only illogical, the practical effects are cruel and inhumane.

We are actively working for reform—and “Fix 96.” We support HR 1485, which would give you back the discretion and power you were hired to exercise, and which you have been trained and are experienced to handle.

The front page of this morning’s paper had two very interesting stories. One concerned yesterday’s 7-2 decision of our Supreme Court, written by Chief Justice Rehnquist, reaffirming Miranda. The second had to do with the success of the research into the human genome—a story I found far more interesting. Of the more than three billion codes which make up human genetic structure, there is a less than 1 percent difference from one human being to the next—and there is nothing in the humane genome which tells immigration or citizenship status. Therefore, that which we have in common is far greater than those arbitrary divisions we place on ourselves.

Before I close, I would also be remise if I did not acknowledge and salute those of you who take an active part in their communities. While there are those in our nation who decry the downfall of our educational system and what they call the cacophony of languages in our society, there are individuals in this room who volunteer as ESL teachers. While there are those in our society who complain of juvenile delinquency and crime, there are those of you who volunteer to coach Little League and soccer. While many criticize the backlog in processing citizenship cases, there are those here who have taken the affirmative step of getting approved to administer the oath, and are working with INS to do so on a regular basis—and thereby helping to cut down on the terrible backlog in that process.

It is always better to light one candle than to curse the darkness, and the positive things you do in your communities reflects well not only on the Immigration Court but on the legal profession as well, and we thank you and salute you for your efforts.

I close with the words of the Chief Judge Posner of the Seventh Circuit Court of Appeals, who said in Salemeda v. INS, “We are a nation of immigrants, built by immigrants, and continually enriched by a flow of immigration.” Let us all remember that as we go into the new millennium.

Cite as AILA Doc. No. 00072010.