🧚🏽‍♀️NEVERNEVERLAND: Inane Immigration Agency Misinterpretation 🤯 Leads Conservative Judge To Fashion Fairytale Ending!👰🏽‍♀️ — U.S. Circuit Judge Frank Easterbrook👨🏻‍⚖️ With The Immigration Quote Of The Week!😎 — Cinderella Was The Answer!

Wicked Stepmother from Cinderella
W. Stepmother
Photo: Chris Alcoran
Creative Commons License

From Arguijo v. USCIS, https://law.justia.com/cases/federal/appellate-courts/ca7/20-1471/20-1471-2021-03-12.html?utm_source=summary-newsletters&utm_medium=email&utm_campaign=2021-03-13-us-court-of-appeals-for-the-seventh-circuit-f8355cff23&utm_content=text-case-title-5

“Stepchild” is hardly a new word, without legal roots.  Nor is it new to common usage.  Does anyone think that Cinderella stopped being the wicked stepmother’s stepchild once Cinderella’s natural father died, ending the marriage? She was still a stepchild even after she married Prince Charming and moved to the palace.

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Thanks to my good friend, fellow blogger, and Round Table colleague “Sir Jeffrey” Chase ⚔️🛡for sending this in!

I never thought of Judge Easterbrook as being a particularly jocular jurist.😎 But, after working in immigration for awhile, I guess it comes down to either laughing 😆 or crying 😢 . And, I definitely see the benefit of the former.

Thanks, Judge Easterbrook for both getting it right and giving me new material for my Immigration Law & Policy class!

🇺🇸⚖️🗽😎Due Process Forever!

Suzanne Monyak @ Law360: FEDERAL COURTS RECOGNIZE THAT BILLY BARR’S BIA IS A FRAUD! — So Why Do They Let The Unconstitutional Abuse Of Persons Seeking Justice Continue Under Their Noses?  

 

Suzanne Monyak
Suzanne Monyak
Senior Reporter, Immigration
Law360
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges
Laura Lynch
Laura Lynch
Senior Policy Counsel
AILA
EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.law360.com/immigration/articles/1271825/immigration-board-picks-under-trump-to-set-lasting-policy

Suzanne writes in Law360:

U.S. Circuit Judge Frank H. Easterbrook didn’t mince words earlier this year when sharing his thoughts on a recent decision by the immigration courts’ appellate board: “We have never before encountered defiance of a remand order, and we hope never to see it again.”

The Seventh Circuit judge, a Reagan-appointee, said the board had ignored the court’s directions to grant protection to an immigrant fighting deportation, instead ruling against the immigrant again. The rebuke wasn’t the first time the Board of Immigration Appeals has been reprimanded by the federal judiciary for seemingly prejudiced decisions under the Trump administration.

Just a month earlier, a judge on the Third Circuit tackling an appeal from the BIA wrote in a concurring opinion that it didn’t appear the board “was acting as anything other than an agency focused on ensuring [an immigrant’s] removal rather than as the neutral and fair tribunal it is expected to be.”

“That criticism is harsh and I do not make it lightly,” U.S. Circuit Judge Theodore McKee wrote.

While President Donald Trump’s judicial nominees and U.S. Supreme Court picks grab headlines for rtheir potential to shape the judiciary for years to come, the administration is staffing the lesser known BIA with former immigration judges who have high asylum-denial rates and individuals with backgrounds in law enforcement. Some of the picks have prompted advocates for immigrants and lawmakers to claim the hiring process is too politicized.

Documents newly obtained through the Freedom of Information Act reveal that the Trump administration has aimed to fast-track the hiring process  while giving the director of U.S. Department of Justice‘s Executive Office for Immigration Review, James McHenry, and the U.S. attorney general more say in who gets the nod.

Unlike the federal and appellate courts, the BIA, an administrative appellate board that hears appeals from immigration trial courts, is not independent but rather is housed with the EOIR.

Yet the board can issue precedential decisions that shape immigration policy — and the lives of immigrants facing deportation — well into the future.

“That the reasonably ordinary citizen has not heard of the BIA does not take away from the fact that it is the most important agency establishing immigration jurisprudence in the country, and when you politicize that, you’re obviously politicizing immigration jurisprudence,” said Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office.

A spokesperson for EOIR told Law360 that the office sped up the hiring process as part of “commonsense changes” and in response to criticism from Congress.

She also said that EOIR “does not choose board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” and that “all board members are selected through an open, competitive, merit-based process.”

During the most recent hiring cycle, every panelist evaluating candidates was a career employee, not a political appointee, according to the spokesperson.

“Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious,” the spokesperson said.

High Rates of Asylum Denials

Since August, the Trump administration has installed nine of the 19 current permanent members of the BIA, and most of the newcomers have asylum-denial rates above 80% and backgrounds in law enforcement or the military.

All but one of the nine were previously immigration judges, and according to data collected by Syracuse University’s Transactional Records Access Clearinghouse, the average asylum-denial rate among those eight judges was just over 92%. The denial rate for each of those eight judges ranged from 83.5% to 96.8%.

The average asylum-denial rate for immigration courts nationally is 63.1%, according to TRAC.

Asylum-denial rates aren’t perfect metrics; controlling asylum law varies by circuit, and the viability of asylum claims can vary based on location. New York’s immigration courts for instance, tend to see more asylum claims from Chinese citizens fleeing political oppression, which are more frequently successful, while courts near detention centers may see harder-to-win claims from longtime U.S. residents with less access to counsel.

However, Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360 that no one deciding cases fairly could have a 90% asylum denial rate.

“You’re looking to deny cases at that point,” he said.

The one recent Trump administration BIA hire who wasn’t previously an immigration judge had been a trial attorney at the Justice Department, while many of the other former judges had prior experience at the U.S. Department of Homeland Security or its predecessor agency.

One, V. Stuart Couch, was previously a senior prosecutor for detainees held at Guantanamo Bay, Cuba.

“There’s overall just a lack of diversity on the immigration judge bench, which is deeply concerning,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “I think the mark of justice is the idea that decision makers come from a diverse background.”

A hire to the BIA announced earlier this month, Philip J. Montante Jr., has come under fire not only for a sky-high asylum-denial rate — 96.3% — but for a history of ethics complaints.

In 2014, the DOJ’s Office of Professional Responsibility concluded that Judge Montante’s handling of an immigration case was “inappropriate” after an attorney accused him of showing bias when deciding a client’s case.

In March, not long before his promotion to the BIA was announced, the New York Civil Liberties Union accused Judge Montante in a proposed class action in federal court of denying detained immigrants’ bond requests nearly universally.

According to the advocacy organization, Judge Montante rejected 95% of bond requests between March 2019 and February 2020, bringing him within the top five lowest bond grant rates among the more than 200 immigration judges nationwide.

. . . .

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Read the rest of Suzanne’s excellent article, with more quotes from my fellow members of the NDPA, Judge Jeffrey S. Chase and Laura Lynch, at the above link.  I have been told that this article is “outside” the Law360 “paywall,” so you should be able to read it even if you don’t have a subscription.

I find the Article III Courts’ recognition of the Due Process travesty going on in individual cases, while they ignore the systemic unfairness that makes a mockery out of the Due Process Clause of our Constitution, the rule of law, our entire justice system, and humanity itself, perhaps the most disturbing institutional failure under the Trump regime. While Article III Judges are “shocked and offended” by contemptuous actions directed at them in particular cases, they remain willfully “tone deaf” to the reality of our dysfunctional and biased Immigration Courts and their impact on “real human lives.” ☠️ 

This is how individuals seeking justice and the courageous lawyers representing them, many serving at minimal or no compensation to inject a modicum of integrity into our system, are treated every day. Not every wronged individual has the ability to reach the Article IIIs. 

And, given the Article IIIs failure to take the courageous, systemic steps necessary to stop abuses of migrants, the Trump regime has “taken it to a new level” by coming up with various illegal schemes and gimmicks to keep individuals seeking asylum from even getting a hearing in Immigration Court. Due Process? Fundamental Fairness? Rule of Law? No way! 

Yet, this unfolds before us daily as the Article IIIs basically “twiddle their collective thumbs” 👎🏻 and “nibble around the edges” of a monumental Constitutional disaster and blot on the humanity and integrity of our nation and our own souls. The complicity starts with the Supremes who have “passed” on  a number of critical opportunities to “just say no” to blatant violations of the Fifth Amendment, the Immigration and Nationality Act, the Refugee Act of 1980, international human rights conventions, and misuse and clear abuse of “emergency authority” to achieve a White Nationalist, racist agenda.

In other words, the Supremes’ majority is knowingly and intentionally encouraging the regime’s program of “Dred Scottification” — dehumanization or “de-personification” before the law — of “the other.” This disgusting and fundamentally un-American “resurrection and enabling” of a “21st Century Jim Crow Regime” might be “in vogue” with the “J.R. Five” and their right-wing compatriots right now. But, they are squarely on the “wrong side of history.” Eventually, the “truth will out,” and they will be judged accordingly!👎🏻

That’s why I say: “Constantly Confront Complicit Courts 4 Change.”

Due Process Forever!

PWS

05-11-20

CONTEMPT FOR COURTS: 7TH CIR. BLASTS BIA FOR MISCONDUCT: “We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.” — Baez-Sanchez v. Barr — Chief “Perp” Billy Barr remains at large to inflict more wanton damage on our republic, our legal system, and the most vulnerable humans!

FULL DECISION:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D01-23/C:19-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0

Baez-Sanchez v. Barr, 7th Cir., 01-23-20, published

PANEL:  BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

OPINION BY: Judge Easterbrook

KEY QUOTE:

What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our deci- sion is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive in- admissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under §1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under §1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez- Sanchez has filed a second petition for review.

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.

The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the la]er. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive deci- sions, not subject to disapproval or revision by another branch of government. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). We acted under a statutory grant of authority to review the Board’s decisions. 8 U.S.C. §1252(a)(1). Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.

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A NOTE TO THE 7TH CIRCUIT AND OTHER ARTICLE III JUDGES:

My sympathies to you. 

But, frankly, rather than coming as a “shock,” you should know that similar stuff happens every day in our U.S. Immigration Courts, which are not “courts” by any known definition, do not provide fair and impartial decision makers, do not satisfy even minimal standards of Constitutional Due Process, and operate in a blatantly unconstitutional manner that you and your colleagues in other circuits and the Supremes have condoned for decades as it unfolded right under your noses. Contempt for the law, disregard of basic Due Process and fundamental fairness, bias against immigrants, particularly asylum seekers, rude treatment, disrespect for lawyers, contempt for the other coequal branches of Government, and failure to respect human decency and dignity are now among the “staples” of today’s “captive” Immigration Courts.

It’s just that most litigants don’t have the wherewithal and and access to competent lawyers to take their cases all the way to the Circuit Courts, sometimes several times as happened in this particular case, in a search for justice. They are, in very plain terms, simply railroaded out of the country without regard to the law or our Constitution.

Sadly, even when they do get before your colleagues across the country, far too many of them ignore the contemptuous travesty of justice being perpetrated by the Department of Justice in the Immigration “Courts.” They merely “rubber stamp” the defective final product. It’s called “going along to get along” or “cowardice in the face of tyranny.” 

For some reason, not obvious those of who once put our careers on the line to stand up for justice and the legal rights and human dignity of the most vulnerable among us, many, many Article III Judges seem to treat “life tenure” as a sinecure that empowers them to ignore needlessly ruined lines and human suffering, rather than as an opportunity, given to none others within our democratic institutions, to stand up for truth, justice, and the Constitution, even in the face of an overbearing and tyrannical Executive who has no respect for your functions. 

Since you seem to have disturbingly little understanding of the true nature of the system which forms a significant part of your appellate workload, let me help you out. Members of the Board of Immigration Appeals are not true “judges” in any sense of the word. They are “employees” of Attorney General Billy Barr. 

Billy himself is an acolyte of the “Unitary Executive” — a neo-fascist concept described by former White House Counsel and ex-con John Dean as meaning “that neither Congress nor the federal courts can tell the President what to do or how to do it.” In Billy’s view,. the power of Donald Trump, or any other GOP President (I doubt that he would apply it to a Democrat President), is unlimited and unfettered and the functions of the Judiciary and the Legislature are largely meaningless, except to the extent that they align with Trump’s agenda. The same goes for the U.S. Constitution and the U.S. Code. They are nothing more than what Donald Trump and his toadies like Billy say they are.

Billy Barr is also an unapologetic agent of DHS Enforcement. Although nominally listed as a “party” before these “kangaroo court’ proceedings involving migrants, Barr and his equally contemptuous and lawless predecessor, Jeff “Gonzo Apocalypto” Sessions, have made it clear that “their judges” are to operate as an adjunct of their “partners” at DHS enforcement. Their only meaningful function is to railroad as many migrants as possible out of the country without regard to Due Process or legal rights. 

Indeed, both Barr and Sessions have simply rewritten the law, through bogus “precedent decisions” that plainly violate the basic rules of judicial ethics requiring impartiality and forbidding prejudgment of cases, as will as requiring that litigants and their attorneys be treated with basic respect and civility. All of these “bogus precedents” favor DHS Enforcement; none favor the individuals trying to save their lives and vindicate their legal rights. A number reverse well-established rules insuring fair adjudication, particularly for asylum seekers, while others deprive “their judges” of even minimal power to manage their dockets in a rational manner.

Additionally, Sessions and Barr have proved to be historically incompetent managers. While doubling the number of Immigration Judges, by hiring almost exclusively from the ranks of government prosecutors, they have more than doubled the court backlog, now approximately 1.1 million “active” cases with another 300,000 “waiting in the wings” as a result of a mindless and unethical precedent decision by Sessions reversing years of slow but incremental progress on docket management. 

They have also created this dysfunctional mess through a process of eliminating the reasonable and sensible use of priorities and “prosecutorial discretion” by DHS in the Immigration Courts as well as by using a process known as “Aimless Docket Reshuffling” or “ADR.” Under ADR, judges and cases are shuffled around the country and the dockets are rearranged to respond to the “emergency of the day” while “ready for trial” cases, some of which have been pending for many years, are arbitrarily “orbited” to the end of dockets, some of which stretch out beyond 2024.

The judges and Board Members work for Billy Barr, who can fire them, reassign them, send them off to the FOIA unit, or turn them into “hall walkers.” (All of which actually happened during the reign of John Ashcroft, where a group of us were “punished” for exerting our authority as independent quasi-judicial officials and the BIA was absurdly cut from 23 Members to 12, under an astoundingly disingenuous claim of “efficiency.” By comparison, Barr recently announced an equally ill-conceived and unjustified plan to expand the BIA to over 50 Members stationed throughout the country).

Under these conditions, it is hardly surprising that Board Members feel themselves compelled and justified in ignoring your court orders in favor of a footnote in letter from the Attorney General, “the boss.” It’s completely consistent with the theory of the all-powerful “Unitary Executive” and the actuality that Board Members and Immigration Judges are constantly told that there are “mere employees” of the Attorney General required to carry out his “policies” under the threat of job loss.

The good news is that you folks aren’t as powerless as you seem to think yourselves to be. You don’t actually need a “motion” from private counsel to:

  • Hold this systemic clown show purporting to be a “court” system unconstitutional, as it most surely is, and shut it down pending legislative reform;
  • Throw Billy Barr in jail for his contemptuous behavior in allowing the BIA to violate your valid orders and then compounding it by neither confessing error nor apologizing, but rather sending his DOJ attorneys in to waste your valuable time and insult your intelligence;
  • Schedule some contempt hearings for non-compliant EOIR officials and explain to them that the “Unitary Executive” is nothing more than a figment of Billy’s warped imagination and that, no matter who signs their paychecks, they are obliged to follow the laws, obey your orders, provide Constitutional Due Process of law to individuals coming before them, exercise independent judgment based on the law and facts in the record, and ignore any nonsense stemming from Billy & company that flies in the face of any of the foregoing.

Then and only then, by standing up for the rights of the most vulnerable among us and your constitutional prerogatives, will you become part of the solution instead of “just another snappy quote line in one of my Courtside headlines.” 

If you don’t act now, this dysfunctional mess of an out of control, illegal, and grotesquely mismanaged system will eventually fall into your collective judicial laps, no matter how much you would like to shun it. For example, Billy is encouraging, basically demanding, that the BIA make more use of largely judicially discredited. “summary affirmances” and often arbitrary, capricious, and sloppily reasoned, “single member opinions,” both entered without meaningful deliberation or discussion, to “rubber stamp” more removal orders. Indeed, one of your retired colleagues, Judge Richard Posner, was an outspoken critic of the shockingly unprofessional and frequently incorrect results produced by the earlier “weaponization” of  “assembly line justice,” featuring “summary affirmances” and “single member decisions” resulting from the “Ashcroft debacle.”

Billy and his EOIR bureaucratic toadies fully intend to further reduce the already questionable quality of the “legal product” that the BIA sends your way. They are counting on you folks to either 1) look the way and join the”rubber stamp brigade,” or 2) do their dirty work for them.  At that point, you will not be able to avoid the “judgment of history” regarding your own complicity and fecklessness in the face of lawless tyranny that is destroying our precious democratic institutions and even more precious human lives every day. Wake up and act, before it’s too late, for you and for our nation!

Due Process Forever!

With my very best wishes,

PWS

01-25-19

 

FOOTNOTE:

For those interested, Judge Easterbrook was appointed by President Reagan; Judge Bauer by President Ford; and Judge Hamilton by President Obama.

If nothing else, Billy and EOIR are uniting judges across the political spectrum in their disgust and outrage.

7TH CIR. “SCHOOLS” BIA IN BIA’S OWN AUTHORITY TO GRANT WAIVER — ARTICLE III THWARTS BIA’S ATTEMPT TO “GET TO NO!” — Matter of KHAN, 26 I&N Dec. 797 (BIA 2016) BLOWN AWAY — BAEZ-SANCHEZ V. SESSIONS! — There’s Is Now A “Circuit Split” With The 3rd Cir., Which “Went Along To Get Along” With The BIA!

rssExec.pl

Baez-Sanchez v. Sessions, 7th Cir., 10-06-17 (published)

PANEL:  Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

OPINION BY: Judge EASTERBROOK

KEY QUOTE:

LDG addressed the question whether the Attorney Gen‐ eral has the authority to waive the inadmissibility of an alien seeking a U visa. We assumed that, in removal proceedings, IJs may exercise all of the Attorney General’s discretionary powers over immigration. The panel did not justify that as‐ sumption, because the parties had not doubted its correct‐ ness. But after LDG the Board concluded that the assumption is mistaken. In re Khan, 26 I&N Dec. 797 (2016), holds that IJs have only such powers as have been delegated and that the power to waive an alien’s inadmissibility during proceedings seeking U visas is not among them. The Third Circuit has agreed with that conclusion. Sunday v. Attorney General, 832 F.3d 211 (3d Cir. 2016). We must decide in this case whether to follow Sunday and Khan.
Delegation from the Attorney General to immigration judges is a matter of regulation, and arguably pertinent reg‐ ulations are scattered through Title 8 of the Code of Federal Regulations. The BIA in Khan observed, correctly, that the panel in LDG had not mentioned 8 C.F.R. §§235.2(d), 1235.2(d), which omit any delegation to IJs of the power to waive an alien’s admissibility. And that’s true, for those regu‐ lations concern the powers of District Directors rather than the powers of IJs. The principal regulation that does cover IJs’ authority is 8 C.F.R. §1003.10, which provides in part:
(a) Appointment. The immigration judges are attorneys whom the Attorney General appoints as administrative judges within the Office of the Chief Immigration Judge to conduct specified classes of proceedings, including hearings under section 240 of the [Immigration and Nationality] Act. Immigration judges shall act as the Attorney General’s delegates in the cases that come be‐ fore them.
(b) Powers and duties. In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual cases be‐ fore them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their au‐ thorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. Immigration judges shall administer oaths, receive evidence, and interrogate, exam‐ ine, and cross‐examine aliens and any witnesses. Subject to §§ 1003.35 and 1287.4 of this chapter, they may issue administra‐ tive subpoenas for the attendance of witnesses and the presenta‐ tion of evidence. In all cases, immigration judges shall seek to re‐ solve the questions before them in a timely and impartial man‐ ner consistent with the Act and regulations.

The Attorney General’s brief in this court observes that §1003.10(b) does not delegate to IJs any power to waive an alien’s inadmissibility. Sure enough, it doesn’t. But §1003.10(a) does. It says that “[i]mmigration judges shall act as the Attorney General’s delegates in the cases that come before them.” This sounds like a declaration that IJs may ex‐ ercise all of the Attorney General’s powers “in the cases that come before them”, unless some other regulation limits that general delegation. The BIA in Khan did not identify any provision that subtracts from the delegation in §1003.10(a). Nor did the Third Circuit in Sunday. Indeed, neither the BIA nor the Third Circuit cited §1003.10(a). We therefore adhere to the view of LDG that IJs may exercise the Attorney Gen‐ eral’s powers over immigration.”

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In the end, of course, the respondent didn’t win much. The 7th Circuit remanded the case to the BIA to “exercise Chevron authority” on the question of whether the Attorney General himself has been stripped of authority to grant these waivers by the legislation that established the DHS as a separate entity.

But, we already know the answer to that question. The BIA has no desire to exercise jurisdiction over this waiver. Indeed, to do so, could turn out to be “career threatening” if you work for notorious xenophobe Jeff Sessions.

Moreover, even before the advent of Sessions, the BIA abandoned any pretense of  impartiality in exercising Chevron jurisdiction. The BIA usually looks for the interpretation least favorable to the respondent, that of the DHS, and adopts that as it “preferred interpretation.”  To do otherwise could hamper any Administration’s efforts to achieve enforcement objectives, thereby endangering the BIA as an institution. Moreover, agreeing with the private litigant in a published decision could undermine the efforts of the DOJ’s Office of Immigration Litigation to facilitate successful defense of petitions for review removal orders in the Article III Courts.

If this sounds like a strange scenario for a supposedly fair, impartial, and unbiased “court” to adopt, that’s because it is! The BIA is there primarily to slap a “patina of due process” on removal orders without really interfering with the DHS’s “removal railroad.” And that’s useful because of Chevron and the ability of  OIL and the DOJ to disingenuously claim that respondents receive “full due process” from the Immigration Courts and the BIA and that Article III Courts, therefore, ought not to worry themselves about the results. And, in a surprising number of cases, the Article IIIs oblige. They don’t want to be stuck having to redo tens of thousands of mass produced BIA appeals.

So, what’s not to like about this system? The Attorney General gets his wholly owned courts to churn out removal orders that look fair (but really aren’t in many cases). The BIA Appellate Judges get to keep their high paying jobs in the Falls Church Tower without having to personally “face up” to the poor folks they are railroading out of the country to places where their lives and futures are in danger. OIL gets to buttress its narrow readings of immigration statutes against immigrants with so-called “court decisions” from the BIA that really aren’t really decisions by independent decision makers. The DHS gets lots of removal orders to keep the “Enforcer In Chief” happy, plus they gain leverage to use against any U.S. Immigration Judge who keeps ruling in favor of respondents. “We’ll just take you to the BIA and get it reversed.”  The Article IIIs get to largely avoid moral or legal responsibility for this facade of fairness and due process. Out of sight (which folks are when they get removed), out of mind. We’re just “deferring” to the BIA. Don’t blame us! And, don’t forget Congress! They get to pretend like none of this is happening and claim they are “solving” the problem just by throwing a few more positions and a little more money at EOIR. No need for meaningful oversight into the charade of due process in the U.S. Immigration Courts. And, there are a few guys over on the GOP side of the Hill who hate immigrants and despise due process as much as Sessions does. They undoubtedly see this as a model for the entire U.S. justice system, or better yet, have lots of ideas on how to avoid the Immigration Courts entirely and make the “removal railway” run even faster.

The only folks who aren’t served are the poor folks looking to the U.S. Immigration Courts as courts of last resort to save their lives, preserve their futures, or at least listen sympathetically to their case for remaining. Some of these poor fools actually believe all they stuff about Americans being fair and humane. Those guys were really discombobulated when I had to tell them that while I had absolutely no doubt that some very ”bad things” were going to happen to them upon return, that just doesn’t matter to the U.S. legal system. While I sometimes had the unenviable task of “telling it like it is,” the BIA, the DOJ, and the Federal Courts really couldn’t care less if migrants end up getting killed, raped, or maimed upon return or if their families in the U.S. have to go on welfare. There’s just no place for them in our system.

The other folks who might not come out so well are the rest of America — the non-xenophobes. Most Americans aren’t actually xenophobes in the Trump-Sessions-MIller-Bannon-GOP Restrictionist tradition. While those of us who know what’s happening might be powerless to stop it, we can document it for future generations. We’re making a record.

In the age of information, none of this is going away or going to be swept under an “eternal carpet.” Someday there will be a “day or recokening” for our descendants, just like the one for those of us whose current privilege was built on enslaved African American labor and its many benefits as well as by a century of “Jim Crow” laws which siphoned off African American Citizens’ Constitutional rights and human dignity and conferred them instead on undeserving white folks in both the South and the North.

We have certainly demonstrated that we can be “tone deaf” to both the motivations and the actual effects of our current broken immigration policies. Indeed, there can be no better evidence of that than the election of Trump and empowerment of his xenophobe racist cronies like Sessions and Miller.

But, in the end, we won’t escape the judgement of history, nor will they. The ugliness of our current immigration policies and practices, and the “false debate” about them (there, in fact is no legitimate case for the “restrictionist agenda” — just a racial and cultural one), might be buried in a barrage of alt-right media and “Sessions bogus law and fact free pronouncements.” But, someday, those are going to look just as “legit’ as Conferederate broadsides or the racially hateful rhetoric of Jefferson Davis do today outside the membership of various hate groups and the alt-right.

PWS

10-07-17