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DOJ to Evaluate Immigration Judges on Speed and Volume of Cases Heard, Rolls Out Quotas

April 3, 2018 by  
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The Department of Justice has announced it will evaluate immigration judges on how many cases they close and how fast they hear cases, a move that judges and advocates criticize as potentially jeopardizing the courts’ fairness and perhaps leading to far more deportations.

The policy has been in the works for months, as Attorney General Jeff Sessions and the Trump administration have been working to assert more influence over the immigration courts, or the separate court system built just for hearing cases about whether people who are not U.S. citizen have a claim to stay in the country.

U.S. law gives the attorney general broad and substantial power to oversee and overrule these courts, as opposed to the civil and criminal U.S. justice system, which is an independent branch of government. In the immigration courts, judges are employees of the Department of Justice.

Sessions has been testing the limits of that authority in multiple ways, and in a memo Friday, the director of the immigration courts informed judges they would now be evaluated on a set of metrics including the speed and volume of cases heard.

The Justice Department says the move is designed to make the system more efficient. The immigration courts have a backlog of hundreds of thousands of cases, and it can take years for an immigrant’s case to work its way to completion. In that time, the individuals build lives in the U.S. , and critics point to the immigration courts’ backlog as a major factor in the number of undocumented immigrants living in the U.S.

“These performance metrics, which were agreed to by the immigration judge union that is now condemning them, are designed to increase productivity and efficiency in the system without compromising due process,” a Justice Department official said of the memo. The official added that any judges who fail to meet performance goals would be able to present extenuating circumstances to the Justice Department.

The memo was first reported by The Wall Street Journal.

Speeding up the courts and cutting down the backlog has been a priority for the department under Trump and Sessions. But advocates and the immigration judges union have opposed the changes, saying setting numerical caps on the amount of time judges can spend on cases and the number of cases they must close in a year could in fact jeopardize due process.

Critics argue that by making the process quicker, the courts could stack the decks against immigrants to deny them the time to prove they have a legitimate right to stay in the country. Asylum seekers, for example, are often traumatized, unfamiliar with English and with U.S. law, and may not have advanced education or the ability to quickly secure legal representation to help make their cases, let alone quickly produce evidence and witnesses. The immigration courts allow immigrants to have counsel, but there is no requirement that legal assistance is provided by the government, unlike in criminal courts.

“Creating an environment where the courts care more about the speed than the accuracy, and where judges are evaluated and even rewarded based on quantity rather than quality is unacceptable and a violation of due process,” said Laura Lynch, a senior policy counsel with the American Immigration Lawyers Association.

Lynch added that the consequences of the decision are not trivial: In cases where the individual applying for asylum could be persecuted in their home country, the ruling could put someone’s life at risk.

“Our biggest concern about asylum seekers and vulnerable populations is that immigration judges are making these important decisions, often life-and-death decisions, every day,” Lynch said. “They must be afforded the time to properly make that decision.”

In the memo, obtained by CNN and sent to all immigration judges on Friday, the Justice Department lays out specific measures of performance for judges, including completing at least 700 cases per year — the equivalent of roughly three per day — and finishing cases where the immigrant is detained in three days from the hearing or in 10 days when the immigrant is not detained.

According to the Justice Department, the average immigration judge currently completes 678 cases per year.

If judges are not performing, they could be fired or potentially moved around the country — a tactic that could push judges out of the system.

Retired longtime immigration judge Paul Schmidt, a staunch critic of the administration, says immigration judges will get the message from the Justice Department.

“Evaluating somebody’s performance on the number of cases they close is obviously going to have some effect on the substance of the decisions,” Schmidt said, saying Sessions’ efforts to tighten immigration law speak volumes. “You know the boss wants removal orders, not grants — all those things have to have some sort of effect.”

The union that represents immigration judges has been fighting the move, which is now allowed in their collective bargaining agreement, according to the Justice Department. But in a January email from the president of the National Association of Immigration Judges obtained by CNN, Judge Ashley Tabaddor informed judges that “the agency had provided assurances to NAIJ that no individual IJ based quotas and deadlines will be imposed until they have fulfilled their obligation under labor law to bargain with us” and vowed that the group would oppose any such move.

“NAIJ is working diligently to fight the implementation of any ‘numeric based performance measures’ on judges, and ensure that any future standards that may be imposed on judges or the Immigration Courts are legally defensible, fair, and would not encroach on our independent decision making authority,” Tabaddor wrote in January.

Tabaddor did not immediately respond to a request for comment Monday.

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EPA to roll back car emissions standards, handing automakers a big win

April 3, 2018 by  
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Environmental Protection Agency Administrator Scott Pruitt announced Monday that he would revoke Obama-era standards requiring cars and light trucks sold in the United States to average more than 50 miles per gallon by 2025, a move that could change the composition of the nation’s auto fleet for years.

The push to rewrite the first carbon limits on car s and SUVs, which came out of an agreement among federal officials, automakers and the state of California, is sure to spark major political and legal battles.

California has authority under the Clean Air Act to set its own emissions limits, and it has threatened to sue if its waiver is revoked and it is blocked from imposing stricter targets. Such a fight has broad implications, because 12 other states, representing more than a third of the country’s auto market, follow California’s standards.

Pruitt’s decision reflects the power of the auto industry, which asked him to revisit the Obama administration’s review of the model years 2022-2025 fuel-efficiency targets just days after he took office. President Trump told autoworkers in Detroit last year that he was determined to roll back the emissions rules as part of a bigger effort to jump-start the nation’s car industry.

“The Obama administration’s determination was wrong,” Pruitt said in a statement. “Obama’s EPA cut the Midterm Evaluation process short with politically charged expediency, made assumptions about the standards that didn’t comport with reality, and set the standards too high.”

Pruitt did not specify what limits would be put in place, saying the EPA and the National Highway Traffic Safety Administration would establish a standard that “allows auto manufacturers to make cars that people both want and can afford — while still expanding environmental and safety benefits of newer cars.” The agency said he is still considering the status of California’s waiver.

Officials in that state immediately excoriated the decision.

“This is a politically motivated effort to weaken clean vehicle standards with no documentation, evidence or law to back up that decision,” Mary Nichols, head of the California Air Resources Board, said in a statement. She argued that the move would “demolish” the nation’s shift toward cleaner cars and that “EPA’s action, if implemented, will worsen people’s health with degraded air quality and undermine regulatory certainty for automakers.”

Nichols also hinted at a potential legal fight to come.

“This decision takes the U.S. auto industry backward, and we will vigorously defend the existing clean vehicle standards and fight to preserve one national clean vehicle program,” she said. The EPA’s decision “changes nothing in California and the 12 other states with clean-car rules that reduce emissions and improve gas mileage — those rules remain in place.”

The efficiency gains that the U.S. auto fleet has made in recent decades have slowed since 2013, as gas prices dipped and the sale of pickup trucks and SUVs accelerated. In the document Pruitt signed Monday, he said EPA had been “optimistic in its assumptions and projections” about the availability of technology to meet the standards and the agency recently had received substantial input from automakers that they needed to be scaled back.

He suggested that if cleaner vehicles are too expensive, consumers will hold onto older cars, thereby lowering the overall efficiency of cars on the road.

Peter Welch, president and chief executive of the National Automobile Dealers Association, said in a statement Monday that while the group supports “continuous improvements” in reducing vehicle emissions, “Standards alone — whatever they are — won’t do the trick.”

The Alliance of Automobile Manufacturers, whose members produce 70 percent of the cars and light trucks sold in the United States, endorsed the shift. The group estimates that it would be more realistic to require the fleet to reach a miles-per-gallon target in the high 40s by 2025.

The U.S. fleet averaged 31.8 mpg for model year 2017, according to federal figures.

Alliance spokeswoman Gloria Bergquist said in an email that her members “support the administration for pursuing a data-driven effort and a single national program as it works to finalize future standards. We appreciate that the administration is working to find a way to both increase fuel economy standards and keep new vehicles affordable to more Americans.”

But two of those members, Ford and Honda, recently urged the government to maintain the current requirements but give manufacturers additional flexibility.

At the Safe Climate Campaign, Director Dan Becker projected that retaining the Obama rule would cut carbon dioxide emissions by 6 billion tons and save 12 billion barrels of oil over the lifetime of vehicles complying with these standards. “Even though automakers are pushing gas-guzzling pickups and SUVs rather than more efficient cars, it’s still the biggest step any nation has ever taken to cut global warming pollution and save oil,” he said.

Two of Pruitt’s predecessors were harshly critical.

“All they care about is undoing everything the prior administration did, and they’ll use any excuse for doing that. They don’t even have the industry itself asking for this,” said Gina McCarthy, EPA administrator under President Barack Obama and now director of Harvard’s Center for Health and the Global Environment.

McCarthy said that the standards set during the Obama era were based on extensive negotiations with states and the federal government, as well as the auto industry. “The decision I made was based on real information,” while Pruitt’s decision seemed to have no factual basis, she said.

And former EPA administrator Carol M. Browner, who helped forge the initial carbon thresholds for cars and light trucks in 2009 while serving in the Obama White House, took issue with Pruitt’s allegation that officials in California are somehow at fault, saying “this idea that California is dictating or arbitrating for the rest of the country is not accurate.”

Rather, Browner said, federal and state officials in past administrations worked to reach a compromise that gave certainty to automakers while moving the nation to embrace more fuel-efficient vehicles.

“There’s an opportunity for us to lead the global market in cleaner, more efficient cars,” she said. “But [Trump officials] are simply going to walk away from that opportunity.”

juliet.eilperin@washpost.com

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