Jeff Sessions Is Quietly Transforming the Nation’s Immigration Courts

Time to set the stage for a detailed analysis comparing decisions by judges from the previous administration to see if these fears are warranted:

Dorothea Lay was on track to become a member of the Board of Immigration Appeals, part of  the Justice Department’s Executive Office for Immigration Review. Her 25-year government career had prepared her for the post, as reflected in four letters of recommendation from academics and current and former officials. In December 2016, nine months after submitting her application, she was offered the job. But administrations changed, Jeff Sessions assumed the role of attorney general, and by early 2018, the offer was withdrawn.

Why?

That’s the question at the center of a complaint filed by Lay, an Idaho native, with the Office of Special Counsel, an independent federal investigative body. In a letter to Lay, 53, the Executive Office for Immigration Review said it rescinded her offer because “the needs of the agency have evolved,” even though the agency announced around the same time that it wanted to expand the size of the appeals board. The complaint suggests that political considerations may have been taken into account in reviewing Lay’s background, citing Lay’s letters of recommendation from people who “had liberal backgrounds or were perceived as having liberal backgrounds.”

The suspicion of politically based hiring has lingered among Democrats, who raised concerns in April and again in May. In the May letter, directed to Michael E. Horowitz, Democrats urged the inspector general of the Justice Department to investigate “allegations of politicized hiring practices,” citing cases in which offers for immigration judges and Board of Immigration Appeals positions had been delayed or withdrawn. (Lay’s attorney, Zachary Henige, is also representing two other people who claim their offers were withdrawn over political differences.) Assistant Attorney General Stephen Boyd responded to the Democrats’ allegations in a letter: “As stated in every immigration judge hiring announcement, the Department of Justice does not discriminate on the basis of political affiliation.”

The investigation into Lay’s complaint is ongoing, so it’s still not clear whether there were ulterior motives behind the withdrawal of her offer. But the case speaks to how DOJ can pick and choose who fills roles and in doing so, influence who’s at the helm of deciding immigration cases.This isn’t unique to this administration. The Justice Department has considerable leeway when appointing immigration judges—the immigration courts are part of its direct purview. The attorney general therefore has unique authority to overrule decisions and hire immigration judges. To that end, Sessions appears to be shaping the court by, at the very least, hiring former law enforcement officials as immigration judges.

“The more you bring people from the same background, the same set of experiences, the same perspective, the more you expose the court to criticism,” said Ashley Tabaddor, the president of the National Association of Immigration Judges. “Those decisions will be more open to being questioned.”

Of the 140 judges hired since Donald Trump’s inauguration, more than half have past prosecutorial experience or some other government experience. The pace of hiring has also stepped up: In fiscal year 2017, the Justice Department hired 64 immigration judges, compared to 81 in fiscal year 2018—bringing the total of immigration judges to 395, according to data released by EOIR. Sessions’s hiring spree is not unusual—and it’s also not unwarranted: His predecessors brought on new immigration judges, and the immigration court backlog also continues to creep up, with the latest figure at more than 760, 000 pending cases. Of the newly hired immigration judges, at least half had received conditional offers during the Obama administration, said Kathryn Mattingly, assistant press secretary at EOIR, in an email.

It’s not just how many immigration judges are being brought on but where they’re being located. EOIR has hired immigration judges for two adjudication centers—in Falls Church, Virginia, and Fort Worth, Texas—where cases from around the country will be heard through video teleconferencing. Judges will be located at the centers, while attorneys and respondents will be in separate locations. According to Rob Barnes, a regional public information officer for EOIR, immigration judges at these centers will be evaluated like others. It’s likely then that thousands of immigration cases will be heard with respondents never seeing a judge face to face.

Across the board, there appears to be a preference for people who come from an enforcement background, according to biographies of newly hired immigration judges posted by the Justice Department. Of the 23 judges announced in August, more than half previously worked with the Department of Homeland Security, and of those remaining, most came from a law enforcement background. In September, EOIR announced 46 new immigration judges, two of which will serve in a supervisory role: 19 previously worked for ICE, 10 had served at DOJ or as a former local prosecutor, and seven had a background in military (one of whom previously served in Guantánamo). It’s not yet known how these judges will rule once they’re on the bench and whether their enforcement background will inform their decisions. But experts, attorneys, and current and former immigration judges have warned about hiring too many people from government before.

“It’s not that we’re saying [those] with law enforcement or military background are unqualified,” Tabaddor, the head of the immigration judges association, told me. “A diverse bench is what brings fairness and legitimacy to court. It’s very important for a court to be reflective of the people it serves and the community at large to gain legitimacy and respect.”

Mattingly, the EOIR spokeswoman, has provided a series of specific qualifications that all candidates for immigration judge must possess.

Previous administrations also pulled from within government, reasoning that candidates have already passed background checks and can therefore be hired more quickly. But that can present some challenges. It’s possible that having spent years fighting in court on behalf of the government, an individual might be biased, said Jeremy McKinney, an immigration lawyer in North Carolina. The American Immigration Lawyers Association, of which McKinney is a part of, and National Association of Immigration Judges, have called for the pool of immigration judges to also include people from private firms and academia.

Their concerns were backed up by Booz Allen Hamilton, which conducted a year-long study of the immigration court system at EOIR’s direction. The April 2017 study found that at least 41 percent of immigration judges previously worked in the Department of Homeland Security, and nearly 20 percent worked at other branches within the Justice Department. The report recommended broadening “hiring pools and outreach programs to increase diversity of experience among [immigration judges].” It’s not clear whether the Justice Department took the study into account in putting together its hiring plan in April 2017, the same month the study was presumably handed over.

The hiring of immigration judges has always been a contentious issue: complaints have been lodged about there not being enough career diversity; it often takes months to hire judges (though the Justice Department recently pushed the time it took down from an average of 742 days to about 266 days); and political affiliations have previously been weighed in selecting judges. In 2008, the Inspector General issued a report on the hiring practices of DOJ in selecting attorneys, immigration judges, and members of the Board of Immigration Appeals. The report concluded that hiring based on political or ideological affiliation is in violation of department policy.

The fear, as expressed by some Democrats, legal experts and immigration advocates, is that Sessions is improperly seeking out conservatives in order to to influence the tilt of the nation’s immigration courts and hire a large cadre of immigration judges who will likely far outlast his tenure.

“I think he’s trying to get a complacent judiciary: ‘Forget the title, you guys are really DOJ employees, you’re out there to carry out my policies,’” said Paul W. Schmidt, former chairman of EOIR’s Board of Immigration Appeals from 1995 to 2001 and a former immigration judge.

Beyond who the Justice Department decides to bring on board, the message Sessions sends down to judges can also heavily influence their decisions, as direct reports to the department, Schmidt and others argue.In September, for example, Sessions delivered remarks to a new class of immigration judges, the largest in history, according to the Justice Department, in which he pressed them to decide cases swiftly. “You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently,” he said. “As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload. I do not apologize for expecting you to perform, at a high level, efficiently and effectively.”

The message was striking given who it’s intended for. “If he was speaking to attorneys, that’d be normal. He has the right to set prosecutorial policy,” McKinney said. “That doesn’t translate to immigration judges.” Judges—even when they are DOJ employees—are expected to be independent. By effectively telling them how to handle cases and how quickly, the Justice Department is infringing upon that independence, McKinney said.

And Sessions’s words weren’t just an expression of what he hopes judges will do either. As of October 1, the expectation to “efficiently and effectively” adjudicate cases is being enforced. Earlier this year, the Justice Department took the unprecedented step of rolling out quotas for judges. To receive a “satisfactory” performance evaluation, judges are required to clear at least 700 cases a year. According to the Justice Department, judges complete 678 cases a year on average now, meaning they will have to pick up the pace to remain in good standing.

This fall, DOJ expects to bring on at least 75 more immigration judges. Even if Sessions days as attorney general are numbered, as Trump has suggested, his selections will decide the fate of immigrants, for years to come.

Source: Jeff Sessions Is Quietly Transforming the Nation’s Immigration Courts

ICYMI: How the federal government is slowly becoming as diverse as Canada

Good overview article by Aaron Wherry of CBC on diversity in government, both public service and political appointments. Some of my analysis quoted and used:

Campaigning in 2015, Justin Trudeau’s Liberals promised to “build a government as diverse as Canada.”

That job might’ve seemed nearly done on Day One. Of the 31 ministers sworn in on Nov. 4, 2015, 15 were, famously, women. Five ministers were visible minorities and two others were Indigenous.

A cabinet ratio of 48.3 per cent women, 16.1 per cent visible minorities and 6.5 per cent Indigenous comes close to matching a Canadian population that was 50.9 per cent women, 22.3 per cent visible minorities and 4.9 per cent Indigenous.

But a prime minister and his government are responsible for far more than a few dozen cabinet positions. The cabinet oversees more than 1,500 appointments, including chairs and members of boards, tribunals and Crown corporations, deputy ministers, heads of foreign missions, judges and senators.

On that much larger scale, progress has been made, but the ideal of a government that looks like Canada is still a ways off.

A new appointment process

When the government was sworn in, just 34 per cent of federal appointees were women, 4.5 per cent were visible minorities and 3.9 per cent were Indigenous.

Two years later, according to data from the Privy Council Office, 42.8 per cent of appointees are women, 5.6 per cent are visible minorities and 5.8 per cent are Indigenous.

In February 2016, the Liberal government announced a new appointment process for boards, agencies, tribunals, officers of Parliament and Crown corporations. It specified diversity as a goal and opened applications to the public.

According to the Privy Council Office, 429 appointments were made via that process through Dec. 5, 2017. Of those, 56.6 per cent were women, 11.2 per cent were visible minorities and 9.6 per cent were Indigenous.

A total of 579 appointments — including deputy ministers, heads of mission and appointments for which requirements are specified in law — were made through existing processes. Of those, 43.7 per cent were women, 3.8 per cent were visible minorities and 5.2 per cent were Indigenous.

“Mr. Trudeau has been more intentional on these issues than his predecessors and has made great progress in opening up the process. He has also clearly made great strides on gender,” says Wendy Cukier, director of Ryerson University’s Diversity Institute.

But, says Cukier, the government’s efforts toward transparency and equal opportunity need to be accompanied by “proactive outreach and recruitment as well as retention strategies” in order to “address some of the barriers historically disadvantaged groups have faced.”

Eleanore Catenaro, press secretary for the prime minister, says, “Our aim is to identify high-quality candidates who will help to achieve gender parity and truly reflect Canada’s diversity.”

She says, “We know there is more work to do to achieve these goals, and we continue to do outreach to potential qualified and diverse candidates to encourage them to apply.”

Rigorous reporting of demographic data across federal appointments could presumably drive change — or at least give the  government something to answer for — but most of these numbers have not been made public.

“It is crucial that the government tracks, measures and reports on diversity in all areas,” says Sen. Ratna Omidvar, the founding director of Ryerson’s Global Diversity Exchange. “By doing so, we are able to see where we are making progress and where we need to improve.”

Beneath those top-line numbers, there are a few other points of reference.

According to Global Affairs Canada, the government made 87 heads-of-mission appointments — ambassadors, consul generals and official representatives — in 2016 and 2017. Forty-eight per cent were women and 13.8 per cent were visible minorities. There were no Indigenous appointees.

Senate and court appointments

Andrew Griffith, a former official at the department of citizenship and immigration who has been tracking diversity in federal appointments, has counted 18 women, six visible minorities and three Indigenous Canadians among Trudeau’s 31 Senate appointments.

As a result of an initiative to track judicial appointees, the Office of the Commissioner for Federal Judicial Affairs has published a tally of court appointments from Oct. 21, 2016 through Oct. 27, 2017. Between those dates, 74 judicial appointments were made, of whom 50 per cent were women, 12.1 per cent were visible minorities and four per cent were Indigenous.

But that data also suggested the pool of candidates was limited: of the 997 applications received, just 97 applicants identified as a visible minority and 36 were Indigenous.​

At some point, it might be charged that diversity is being inappropriately prioritized ahead of merit or competency — as Kevin O’Leary once alleged of Trudeau’s cabinet. But such suggestions assume that achieving diversity must come at the expense of merit.

Ideally, diversity would also amount to more than a numerical value.

3 benefits of diversity

Griffith, for instance, suggests three potential benefits of diversity in appointments: that it allows Canadians to see themselves represented in government institutions, that it brings a range of experience and perspectives to government policies and operations and that it reduces the risk of inappropriate policies (for example, an RCMP interview guide that asked asylum-seekers about their religious practices).

“It has been proven over and over that more diversity in the workplace leads to better outcomes,” says Omidvar, who is also pushing to tighten the standards included in a proposed government bill that would require corporate boards to report on diversity.

But the most profound impact could conceivably relate to Griffith’s first potential benefit. A nation that values diversity and pluralism might want its institutions to reflect those principles — and institutions that reflect those principles might advance the building of a multicultural society.

“It normalizes diversity,” Omidvar said of public appointments. “At this point, diversity is still sort of not the norm, which is why we focus on it.”

via How the federal government is slowly becoming as diverse as Canada – Politics – CBC News

Governor in Council Appointments – PCO data

Governor in Council Appointments 2016 Baseline

Following the skimpy information provided in both the mandate checker and PCO’s Departmental Performance Report (DPR), I had asked PCO for more details and they were reasonably quick in getting back to me.
The correspondence below indicates that this is very much a work in progress. Hopefully, future reporting will include an annual table of GiC appointments by the four employment equity groups. Hard to the logic, for a government committed to diversity and inclusion, and one that has improved dramatically the diversity of judicial, ambassadorial and senatorial appointments, not to take this next step of more comprehensive reporting:

PCO response:

“…In February 2016, the Prime Minister announced a new approach to Governor in Council—or GIC—appointments that supports open, transparent, and merit-based selection processes for GIC appointments.
 
Significant progress has been made in making appointments.  Since March of this year, the number of appointments made under the new approach has increased approximately 300%.  To date, over 19,000 applications have been received and over 400 appointments made following an open, transparent, and merit-based selection process and approximately 740 appointments made through other selection processes.
 
Of the appointments following an open, transparent, and merit-based selection process, nearly 60% were women.  Most notably, women have been appointed for the first time to a number of leadership positions, including the Chief Science Advisor, the Chief Commissioner of the Canadian Grain Commission, the Chair of Via Rail, and the Chairperson of the Infrastructure Bank.  Over 10% are visible minorities, 10% are Indigenous peoples, and persons with disabilities are well represented.  The total representation of women serving as GIC appointees has increased by over 5% and is now over 40%.”

My reply to PCO:

“I prepared this little summary table for appointments under the new approach:
Women
VisMin
Indigenous peoples
Total
Number
236
40.4
40
400
0.59
0.101
0.1
Obviously, this is approximate but provides a basis for comparison with other EE data.
In terms of the other selection processes, I assume this would include position such as judges, heads of mission and the like and would appreciate confirmation your end. [PCO later advised that it does not include judges.]
Looking at the total number of GiC appointments (1182 in the index as of today, 40 percent women would mean about 473 women or more.
I would hope that in the future PCO would be able to provide annual tables similar to the EE reports for the public service (simplified) that would essentially tell what is a good news story more effectively and consistently. And that future DPRs are more informative.
But nevertheless this information is welcome, represents progress. Thanks for getting back to me.”

Mandate Letter Tracker: Delivering results for Canadians [diversity of appointments and lack of detail]

There has been justified critical commentary regarding the government’s mandate letter tracker. I was curious to see how the commitment to increased diversity in appointments was covered.

Surprisingly, the 2016-17 PCO Departmental Performance Report does not provide any data table to substantiate that claim, merely noting:

  • Almost 12,000 applications processed and 429 Governor in Council appointments made in 2016-17”

Strikingly, the focus appears only to be with respect to women, not the other employment equity groups (visible minorities, Indigenous peoples, and persons with disabilities). PCO should be providing such data (as Justice does for judicial appointments).

That being said, given HoM and judicial appointments to date, I think this one can be said to be on track.

via Mandate Letter Tracker: Delivering results for Canadians – Canada.ca

Insistence on French for SCC judges could block historic appointment of first Indigenous judge – The Lawyer’s Daily

Hard one to balance:

The Trudeau government’s pledge to fill the Supreme Court of Canada’s impending western vacancy with a bilingual jurist who can function in French is liable to block the historic appointment of its first Indigenous judge, lawyers say.

The Indigenous Bar Association (IBA) has pressed Ottawa for years to make an Indigenous appointment to the 142-year-old court and will do so again for the spot that is opening  up when Chief Justice Beverley McLachlin retires Dec. 15, said IBA president Koren Lightning-Earle of Maskwacis, Alta.

However the Trudeau government’s insistence that all its Supreme Court appointees be able to read and understand French, without translation, is an additional and unfair hurdle for Indigenous candidates and a “detriment to Canada,” Lightning-Earle told The Lawyer’s Daily.

If the government “starts to think outside the box on what the language prerequisite actually means to Indigenous people, and [to] truly understand history and reconciliation … then they’ll understand why the [French] language prerequisite is ridiculous,” she explained. “Our first language is our Indigenous language. And then we were sent to residential school where we were told we were not allowed to speak our language, and we were forced to speak a colonial language [English]. And now we have to speak another colonial language — just to get a seat at the table!”

The Trudeau government vowed during the election to appoint only Supreme Court judges able to function in both English and French. This was in response to concerns expressed by Quebecers, Acadians and other francophones outside Quebec that it does a disservice to their appeals when the top court’s anglophone judges can’t understand nuanced French oral argument (because interpretation is not always perfect) or read French written briefs and supporting materials (which are usually not translated).

However Lightning-Earle points out the prime minister and his government have also committed to reconcile with Indigenous peoples, as a top priority. “You don’t just get to put up a barrier and say ‘Well this is our requirement’ — without acknowledging the history — which is the spirit and intent [of] the reconciliation that the government supposedly signed on to,” she remarked.

Certainly the language prerequisite is a major obstacle for Indigenous candidates. There are, at most, a handful of Supreme Court-calibre Indigenous jurists in the west who are able to understand and read French without translation. Saskatchewan provincial court judge Mary Ellen Turpel-Lafond, who is Cree, is one, as is Vancouver litigator and Indigenous law expert Jean Teillet, who is Métis.

“There are barriers that Aboriginal lawyers and judges face that non-Aboriginal people don’t face,” Teillet told The Lawyer’s Daily. “And language is always one of those things. And so putting that kind of qualification on a Supreme Court appointment … will mean, as a fact, that we will have not an Aboriginal judge on the Supreme Court of Canada for a very long time. It won’t be because there are not really excellent Aboriginal lawyers and judges who are capable — more than capable — of doing the job. It will be because of the language barrier.”

Among those who appear to be affected is internationally acclaimed Indigenous law scholar John Borrows, 54 — who many see as a star candidate.

A member of the Chippewas of the Nawash First Nation on Georgian Bay, Borrows is currently in immersion French studies in Montreal. He is a visiting professor at McGill University’s faculty of law where he is learning about the civil law while on sabbatical leave from his post as Canada research chair in Indigenous law at the University of Victoria’s faculty of law, where he is co-developing the first joint program in Canadian common law/Indigenous law, expected to start up in 2018.

Osgoode Hall Law School dean Lorne Sossin believes Borrows “would be an outstanding choice to join the court.” He should not be blocked as he gets his French up to speed, Sossin opined.

Source: Insistence on French for SCC judges could block historic appointment of first Indigenous judge – The Lawyer’s Daily

Federal government still battling chronic backlog of appointment vacancies

Slow progress. Latest numbers:

More than a year after the federal Liberals launched a new process meant to reduce patronage and increase the transparency of the government appointment process, a huge number of positions remain unfilled — affecting everything from refugee appeals to courtroom delays to the independent watchdogs of Parliament.

The new process, announced in February 2016, was meant to create a more arm’s-length method of filling the roughly 1500 positions to which the government appoints its preferred candidates — at federal agencies, on boards, commissions and administrative tribunals, as well as at the head of Crown corporations. Nearly every such position is now advertised online, and committees sort through applications and recommend applicants with a mandate to improve gender and ethnic diversity.

But the introducton of the revamped process caused appointments to virtually grind to a halt for a year. A CBC study in March found the number of vacancies and expired terms had ballooned to nearly 600 — roughly a third of all positions. Things only started moving again in June, when the government made more than 100 appointments. But a National Post evaluation this week found about 300 remaining vacancies and 150 instances where somebody continues to serve in a job beyond the expiration of their term, with hundreds more expiring this fall.

The effects reach far beyond Parliament Hill. In June, immigrations appeals in B.C. and Alberta had to be scaled back because of vacancies on the boards that conduct hearings. Today there are still 41 vacancies, accounting for almost half the appointed positions.

In May, the outgoing head of the Military Grievances External Review Committee complained it was severely restricted in its ability to review complaints from Canadian Forces members due to vacancies, saying “our men and women in uniform deserve better … I deeply regret that the committee could not do more this year.” Three of the four appointed positions remain empty.

The government brought the same new approach to appointing judges, but it took the better part of a year to staff up the judicial advisory committees that make recommendations. A Senate report in June slammed the government’s sluggish pace in appointing judges , saying it was contributing to the court delay crisis. As of July 1, there were still 49 vacancies across Canada .

Liberal officials have said it just takes time to find the right people, and that the delay is worth it in the long run — particularly when it comes to improving diversity. Statistics provided by the Prime Minister’s Office say that as of mid-June the government’s nominees have been 70 per cent women, 12 per cent visible minorities, and 10 per cent Indigenous.

Globe editorial: The Trudeau government is failing refugee claimants, and Canadians

Valid points – backlogs will only increase, requiring more funding and personnel to handle.

Hard to understand why IRB appointments are taking so long – after all, the government has been able to appoint almost 100 judges over the past year and a half (after a slow start):

Our neighbour to the south has taken a pronounced nativist turn in recent months, and the government of Canada’s response has been to throw the doors open – rhetorically, at least.

Last January, Prime Minister Justin Trudeau took to social media and proclaimed, “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada.”

As political marketing goes, it was nicely timed. But to be completely insulated from truth-in-advertising complaints, it should have included a disclaimer – “Offer available only to genuine refugees, as defined by law. As we are experiencing an unusually high number of claimants at this time, it could take many years for our government to decide whether you are legally entitled to welcome, or removal.”

According to the latest federal statistics, more than 14,000 people have registered their intention to seek asylum in Canada through the first five months of 2017.

That number doesn’t include refugees from Syria, who are being fast-tracked, and it adds upon the 23,900 who arrived in 2016 – itself a sharp increase from the 16,000 who came in 2015.

Last month, the federal government offered a modicum of good news to 5,500 people whose claims had been shunted to the back burner by the former Conservative government. Most have been waiting in limbo since at least 2012; their cases are expected to proceed in the fall.

Unfortunately, this will barely dent the application backlog, which is estimated at close to 40,000 cases.

The wait faced by refugee claimants – legitimate or otherwise – is too lengthy, and also unfair. It is well known that the longer an application is delayed, the lower the chance of it being accepted.

Meanwhile, the influx of asylum-seekers is unlikely to abate. There’s been a surge in the number of claimants showing up at Canada-U.S. border crossings since President Donald Trump took office in January, but even that is not the whole story.

The United Nations’ Refugee Agency calculates there are more displaced people on the planet right now – 65 million – than at any point since the Second World War.

A government analysis obtained by the Canadian Press forecasts the number of refugee claimants in Canada will hit 36,000 this year, and rise by as much as 20 per cent a year after that.

If the current trends hold, the time required to process an application will reach 11 years in 2021, and could cost $3-billion in social support payments. This must not be allowed to happen.

Hiring more staff and expanding budgets are an unavoidable aspect of correcting the situation, but it isn’t a matter of applying a simple fix.

The new federal appointments process announced earlier this year, billed as independent and competence-based, has been a disaster for the Immigration and Refugee Board. Dozens of key jobs remain vacant, while the number of claims is rising rapidly.

On June 21, the IRB announced its Western Canada immigration appeal division – which deals primarily with applications involving family members and dependents abroad – would be working at reduced capacity “for at least the next six months” because of staffing shortages.

The re-appointment of two outgoing members to one-year terms, announced that same day, won’t do much to ease the bottleneck. There should be 11 on the job, but there are currently only four.

Across all regions, the IRB’s refugee and immigration appeals divisions have a shortage of at least 29 members, and the terms of another 29 are set to expire at the end of this year, according to one news report.

The vacancies, and the slowness with which the Trudeau government is filling them, have led to accusations that Ottawa is culling IRB members who were appointed by the Conservatives in order to replace them with Liberal supporters.

Whatever the reasons, the IRB is unable to handle the load because Ottawa is allowing members’ terms to end while failing to appoint new people in a timely fashion.

Immigration Minister Ahmed Hussen recently announced a third-party review to examine resource levels and the various bureaucratic mechanisms involved. However, it won’t be concluded until next year, and that’s not good enough.

The IRB has raised the alert about under-staffing for years. An overwhelmed immigration and refugee process, already buffeted by an ill-advised overhaul under the Harper government, has real-world impacts. It’s bad for asylum seekers, and undermines public confidence.

Ottawa must move quickly to show Canadians that their government is doing more than drifting in its response. Tweeting “#WelcomeToCanada” is an empty gesture by the Prime Minister, if it’s not accompanied by action.

Source: Globe editorial: The Trudeau government is failing refugee claimants, and Canadians – The Globe and Mail

Asylum claim wait times could hit over 11 years: federal analysis

Appears problem will likely get worse before it gets better (current number of IRB vacancies is 39):

An increase in asylum claims in Canada could eventually mean a staggering 11-year wait for a hearing and $2.97 billion in federal social supports for claimants in the meantime, an internal government analysis has concluded.

The Immigration and Refugee Board is already trying to whittle down its current backlog, but received no new money in the latest federal budget.

With 2017 application numbers expected to far exceed earlier projections, the board simply can’t keep up, says the memo, obtained by The Canadian Press under the Access to Information Act.

The Immigration Department memorandum was drawn up this spring amid a flood of people illegally crossing into Canada from the U.S. to claim asylum, dominating headlines and raising pointed House of Commons questions about the integrity of Canada’s borders and immigration system.

The department was asked to explore estimated backlogs at the Immigration and Refugee Board and the associated wait times under different scenarios, following a meeting about the U.S. border-crosser issue in March.

Since January, at least 2,700 people have been intercepted by the RCMP between legal border points; most went on to file claims. The memo does not directly address the impact of the border crossers, though certain sections were redacted.

But those numbers are only part of the mix.

Asylum claims have been steadily rising since 2015; that year, there were 16,115, and in 2016 there were 23,895. As of April this year, the last month for which data is publicly available, there were already 12,040 claims in the system.

The memo projects that claim levels will hit 36,000 this year and could continue to increase after that.

“This scenario best reflects current concerns around increased volumes of claimants observed to date in 2017, and takes into account overall increases in asylum intake from 2015 to 2016,” it says.

The memo goes on to say that by the end of 2021, the new system inventory would grow to approximately 192,700 claims, equivalent to 133 months’ worth of output from the board, or a wait time of approximately 11 years.

The social support costs for claimants were $600 a month each in 2016-17, the memo said. At that claim volume, those costs could climb to $2.97 billion from 2017 through 2021.

The other two scenarios examined were what would happen if intake for 2017 remained at the originally projected number of 28,000 claims, or what would happen if there was 36,000 claims with no growth after that.

In the first scenario, wait times would be between four to five years; in the second, around six years.

The IRB has been sounding the alarm for months over its ability to keep pace with the rising numbers.

They cite a number of factors, including dozens of vacancies for decision-maker positions and also a legislative regime that requires hearings to be scheduled within certain timelines.

A backlog has arisen, the note explains, because hearings need to be scheduled as soon as the claims are filed, and the board simply can’t keep up with the pace.

The time required to actually make a decision on the claims has remained relatively stable at about five months; the challenge is getting them heard in the first place.

The board has tried to deal with the backlog on its own by, among other things, redeploying half its capacity to address backlogged claims. Repeated pleas for more money, however, have only been met by the immigration minister’s insistence that the board find ways to be more efficient.

That might not be enough, says the analysis.

“The rate of backlog growth presented in these scenarios could be mitigated in part by these efficiencies, but not avoided altogether,” the note said.

Last Friday, Immigration Minister Ahmed Hussen announced a wide-ranging review of the IRB, bringing in a former deputy minister in the department to study the system and report back by the summer of 2018.

“Canada’s asylum system must strike a balance between providing protection to those fleeing persecution and ensuring that the system is not misused by those who do not need Canada’s protection,” he said.

A budget for the program has not been established, but a spokesperson for the department said it will be paid for by them and the IRB.

Source: Asylum claim wait times could hit over 11 years: federal analysis – The Globe and Mail

Liberals accused of ‘housecleaning’ of Tory appointees at refugee board

Leave it to others to comment, particularly those with experience in dealing with the IRB.

Like all GiC appointments, there is a strong political element (and has always been).

The delay in appointments appears to be characteristic of the government, partially due to its commitment to increased diversity in appointments, but one that affects the timeliness of decision-making.

The in-depth study, 2016 Refugee Claim Data and IRB Member Recognition Rates | Canadian Council for Refugees, shows a variation in acceptance rates among members, as happens to a certain extent in all such processes:

A slew of seasoned decision-makers tasked with hearing refugee and immigration appeals have either left or will depart from their job in what some call the Liberals’ “housecleaning” of Conservative appointees.

In light of what some critics call inadequate funding and a growing backlog stemming from the recent spike in asylum-seekers crossing into Canada via the United States, the loss of the adjudicators on the immigration and refugee appeals tribunals is expected to toss the system into disarray.

“Our concern is the government is continuing to have a governor-in-council appointment process that is political and discretionary instead of going for a transparent process to appoint the most suitable candidates who are competent, judicious, fair-minded and efficient,” said Raoul Boulakia of the Refugee Lawyers’ Association of Ontario.

“The efficiency and quality of the decisions could be compromised if the people who are brought in do not have the expertise and are not judicious.”

The Immigration and Refugee Board, which oversees both appeals tribunals, said 14 appointees have left their job since last August and another 39 will have their appointments expire by the end of this year. The board confirmed a total of 42 people applied for reappointments to the tribunals, but would not say how many have been successful.

Currently, 23 of the 58 positions at the refugee appeals tribunal are unfilled while the immigration appeals division has six vacancies out of the full complement of 44 appointments.

Like the court system, the refugee and immigration appeals tribunals require adjudicators to have stronger knowledge and experience with the administration of the law in order to review decisions by lower-level refugee judges or immigration officials, who are civil servants.

While failed refugee claimants — and sometimes the immigration minister — can appeal to the refugee tribunal any questionable decisions made by asylum judges, rejected immigration applicants in sponsorships or those facing removal orders can take their cases to the immigration appeals tribunal.

As of the end of December, the immigration appeals tribunal had a backlog of 10,206 cases and a processing time of 20.4 months (compared to 17 months in 2013), while the refugee appeals division had 1,938 cases in the inventory with the average processing time at 124 days (compared to 65 days in 2013), said the refugee board.

Under the old system by the former Conservative government, existing adjudicators seeking reappointment to the tribunals would have all their previous decisions evaluated in terms of quality and quantity before being recommended by the board chair based on their track records.

However, last summer, the Liberal government, which ran an election campaign on transparency and bipartisanship, rolled out a new process for those already sitting on the tribunals by requiring them to reapply for their appointment and pass an online test.

They are then interviewed by a hiring committee made up of the refugee board chair and one representative each from the Prime Minister’s Office, Privy Council Office and the Immigration Department. The composition of the committee opens the door for partisan selection, Boulakia said.

The Privy Council said the government’s new approach to governor-in-council appointments supports “open, transparent and merit-based appointments.”

“All candidates seeking appointment to a GIC position with the Immigration and Refugee Board, be they incumbents or new candidates, are subject to a rigorous selection process developed for the position, which includes inputs and insights from the independent bodies, including the chair of the refugee board,” said Mistu Mukherjee, a spokesperson for the PCO.

“The results of these assessments, made against public and merit-based criteria, are provided to the minister. The minister makes appointment recommendation from this list of highly-qualified candidates.”

Adjudicators who took the test said the questions had nothing to do with immigration and refugee laws and complained they had no way to review the exam or find out why they might have failed.

“The process is partisan and not based on merits. They are cleaning out anyone who was appointed by the previous government, whether they are really affiliated with the Conservatives or not,” complained one adjudicator, who underwent the process and asked not to be identified for fear of repercussion.

“This is complex, technical work. It takes a long time for new members to learn the stuff. This purge means people’s (immigration) status is going to be uncertain for longer. It is going to further affect people’s ability to bring their family members to Canada. This is going to have a huge impact in people’s lives.”

Although it is a common practice for a new government to fill board and tribunal appointments with their party supporters, another affected adjudicator said the test is “flawed” and the process is “rigged.”

“What happens is you feel you are shackled to a political party with your job security resting on the whim of that party. But you are not supposed to get involved in any politics. It is just so wrong when you are not assessed by your performance and good judgment but by who you know,” said the source, whose appointment was not renewed.

“Our political leader has said to refugees, ‘Come to Canada and we will welcome you.’ It’s like an open invitation, but some people who come here are not really who they say they are. With more refugees coming, everybody will be appealing and rushing to the appeals tribunals when they are turned down. This is all about cleaning house.”

Refugee board spokesperson Anna Pape said it is not a requirement for appointees to have experience in refugee and immigration matters and “(complete) training” is provided to all new decision-makers, regardless of their education or experience.

Source: Liberals accused of ‘housecleaning’ of Tory appointees at refugee board | Toronto Star

Trudeau government’s vacant appointments backlog up 80%

Good follow-up story and valid concern regarding the large number of vacancies.

But nice to see that PCO is now tracking more systematically the diversity of appointments and improving representation (of the more than 100 appointments to date, 62 per cent women, 15 per cent visible minorities, 10 per cent Indigenous Canadians):

Five months after Prime Minister Justin Trudeau’s government assured Canadians that its new system would soon fix the backlog of appointments that need to be filled, the problem has gotten much worse.

An analysis by CBC News reveals that one in three governor in council positions — ranging from directors of government agencies to members of tribunals that hear appeals of employment insurance or pension disputes — is currently vacant or occupied by an appointee whose term is past its expiry date.

When CBC first looked at the question in October 2016, 19.6 per cent of the governor in council positions were vacant or past their expiry date.

That number is currently at 35 per cent, although it will drop slightly next week when several appointments to the Immigration and Refugee Board made by cabinet earlier this month take effect.

The backlog in October of more than 300 appointments has now swelled to 572. Of the 515 positions, 354 are vacant. Another 161 are occupied by an appointee, often one named by the previous Conservative government, whose appointment is past its expiry date. However, they are allowed to remain until they are replaced or renewed.

The positions range from lucrative full-time jobs with six-figure salaries to part-time positions that pay per diems and expenses.

There are also 57 vacancies for federally appointed judges, down slightly from the 61 vacancies in October 2016 that prompted concerns about growing backlogs in criminal trials.

In several cases, positions are being filled on a temporary basis because the government was not able to fill them before the incumbent’s term was set to expire. Among them are half of the officers of Parliament — the conflict of interest and ethics commissioner, the commissioner of lobbying and the official languages commissioner, while the chief electoral officer’s position is listed as vacant.

Former prime minister Stephen Harper’s government went on an appointment spree in the weeks leading up to the 2015 election, filling not only most of the positions that were vacant but also making 49 “future appointments” of individuals whose terms weren’t due to be renewed until well after the election.

In October, the government said that the initial backlog was caused in part by the decision to overhaul the appointments process and bring in a more open and balanced merit-based system.

It said that system was up and running, Canadians were applying for the positions and vacancies were being filled.

Five months later, the government said it has received more than 11,000 applications for vacant appointments and more than 100 selection processes are currently underway.

“The more rigorous approach to conducting selection processes represents a significant volume of work,” said Raymond Rivet, spokesman for the Privy Council Office.

Rivet said that since the government launched its new appointments process it has made more than 100 appointments.

“Of this number, 62 per cent have been women, 15 per cent visible minorities, 10 per cent Indigenous Canadians and 50 per cent identify as fully or functionally bilingual.”

However, Conservative MP Tony Clement, former president of the Treasury Board, said the growing backlog of vacant appointments is affecting service to Canadians.

“This clearly a case where these appointments, which are necessary for the proper functioning of government — there could be issues involving people getting their appropriate EI, for instance, or their appropriate pension — are not being processed because of the lack of these appointments.”

Clement blamed the backlog on Trudeau’s director of appointments, Mary Ng, who announced Feb. 15 that she was taking a leave from her job to seek the Liberal nomination in the Toronto-area riding of Markham-Thornhill. The riding became vacant after Trudeau appointed former immigration minister John McCallum as Canada’s ambassador to China.

“It’s very disappointing,” said Clement. “The person in charge of this process is now the Liberal candidate in Markham, and obviously she was spending too much time campaigning for herself and not enough time making recommendations to the prime minister on appointments.”