INSIDE EOIR: THE REEMERGENCE OF “THE GREAT SANTORINI” – Could Judge Chris Santoro’s Reputed Takeover Of The Law Library and Training Functions At Headquarters Be Some Good News For A Beleaguered Court System & Its “Customers?”

It’s been a tough year for EOIR, the agency of the U.S. Department of Justice that oversees the U.S. Immigration Court system. (Although, admittedly, probably not as tough for EOIR as for the many individuals forced to count on EOIR for potentially life-saving due process who were short-changed and the often disrespected attorneys representing, or trying to represent, them.)

 

The backlog has continued to mushroom to more than 640,000 cases with no end in sight; new Immigration Judge hiring and courtroom expansion continued to lag; e-filing remains a pipe dream; recently retired former Director and BIA Chair Juan Osuna died suddenly and unexpectedly; and a new Attorney General took office who apparently views the Immigration Courts not as a “real” judiciary charged with acting independently to protect the due process and other legal rights of migrants, but rather as a mere “whistle stop on the DHS deportation express.”

 

But, at least some good news could be in the offing. Reportedly, Judge Christopher A. “The Great Santorini” Santoro, who currently serves as the Acting Chief of Staff for the Acting Director of EOIR, Judge James McHenry, will assume overall responsibility for the BIA’s Law Library (which includes the highly-regarded “Virtual Law Library”) and the Judicial Training Program. Both important functions will be “relocated” to the Office of Policy in the Director’s Office.

 

Judge Santoro served as the Assistant Chief Immigration Judge for the Arlington Immigration Court during some of my tenure there and later went on to be an Acting Deputy Chief Immigration Judge before mysteriously disappearing for a time into the bowels of the EOIR bureaucracy (becoming essentially a “bureaucratic non-person” – off the organizational “depth charts”). He subsequently was “rehabilitated” and reappeared last spring when Acting Director McHenry appointed him Acting Chief of Staff.

 

Judge Santoro has a stellar reputation for hard work, efficiency, sound administration, and creative problem solving. In Arlington, he was viewed as a “trial judges’ judge” who devoted himself to supporting the judges and resolving problems while not interfering with the things that were working.

 

He also provided unprecedented feedback and guidance about what was “really happening at The Tower” – normally a “dark hole” for field judges. During my illness, he, along with my colleagues Judge Roxanne Hladylowicz and Judge Robert Owens, pitched in and handled some of my Master Calendars so they didn’t have to be rescheduled. I always found him to be totally supportive and responsive, as well as a great colleague. He cared deeply about and paid attention to the hard-working and underappreciated court staff. He is known as a manager who in the words of one former employee will likely “put competent people in charge and let them do their jobs.”

 

The Law Library has been under the outstanding leadership of Head Law Librarian Karen L. Drumond dating back to my tenure as BIA Chair (1995-2001). The upgrading of the Law Library, hiring of additional staff, and the creation of the Virtual Law Library were carried out with the encouragement and enthusiastic support of then-Director (and later BIA Member) Anthony C. “Tony” Moscoto. Tony correctly envisioned changing the previously, rather ignored, BIA Law Library into a major research aid for the Immigration Judiciary as well as a help to the public and a repository for certain historical materials about the BIA and EOIR’s history.

 

The Virtual Law Library, in particular, has been widely acclaimed as an important research tool in the world of immigration law. I still use the public version on a regular basis and recommend it to my students and others as a great resource!

 

Assistant Chief Judge Jack Weil has very capably managed the EOIR Judicial Training Program for years. However, despite Judge Weil’s best efforts, training too often fell victim to budget shortages or other bureaucratic impediments. Unfortunately, it has been, quite incorrectly, considered a “low priority” within the bureaucracy.

 

Immigration Judge Training hit bottom this past year when the incoming Administration without explanation cancelled critical in–person nationwide training for Immigrating Judges — the only real CLE and training that most Judges receive during the year. This was notwithstanding the arrival of many newly hired Immigration Judges who have never had a chance to attend a nationwide training conference or, indeed, even to meet the vast majority of their judicial colleagues!

 

I know that Judge Santoro takes legal research, professional excellence, fairness, and training very seriously. Indeed, while at the Office of Chief Immigration Judge he “directed” several “new judge training videos” with an all-star cast including some of our multi-talented former Arlington Judicial Law Clerks.

 

Generally, I interpret bringing the Law Library and Judicial Training functions under the Director’s Office and selecting a “total judicial management pro” like Judge Santoro to lead them as a positive sign for EOIR and the immigration world. Hopefully, the Law Library and Judicial Training will prosper and expand under Judge Santoro’s leadership to meet the challenges of the 21st Century.

 

“Job One” at EOIR is NOT about removing migrants at record paces, denying more asylum applications, or deterring future migrants. No, it’s all about fairness, scholarship, timeliness, respect, teamwork, and delivering Due Process and even-handed justice to some of the most vulnerable individuals in America.

Currently, EOIR is failing to discharge its critical duties to guarantee fairness and due process in the manner one would expect from one of the largest, perhaps the largest, and most important Federal Court systems. Hopefully, Judge Santoro will be part of the solution to the problems facing EOIR and those whose lives and futures depend on it.

PWS

11-29-17

MORE IMMIGRATION COURT INSANITY! — DHS REPORTEDLY STRIPS OWN ATTORNEYS OF AUTHORITY TO NEGOTIATE BONDS, WAIVE APPEALS!

Sources from several areas of the country have informed me that there is a new, of course unpublished and unannounced, policy at DHS prohibiting ICE Assistant Chief Counsel who represent the agency in U.S. Immigraton Court from either negotiating bonds with private counsel or waiving appeals from U.S. Immigraton Judge decisions ordering release on bond.

This is just further evidence of the consequences of having ignorant proponents of “gonzo enforcement” in charge of both the DHS and the U.S. Immigraton Courts at the Department of Justice.

First, negotiated bonds are one of the key ways of making bond dockets move forward in an efficient manner in the U.S. Immigraton Courts. Bonds are initially sent by ICE Enforcement personnel, often on an arbitrary or rote basis. Without authority to negotiate bonds, particularly in advance, each bond hearing will take longer. Moreover, since bond cases take precedence in Immigraton Courts, longer bond dockets will further limit the already inadequate court time for hearing the merits of removal cases. With a growing backlog of over 600,000 cases, this appears to be an intentional effort to undermine due process in the Immigration Courts. Typically, when I served at the Arlington Immigration Court, at my encouragement, the parties agreed on most bonds in advance and neither party appealed more than 1%-2% of my bond decisions. Indeed, discussing settlement with the Assistant Chief Counsel in advance was more or less of a prerequisite for me to redetermine a bond.

Second, appealing all bond release decisions will also overburden the already swamped Appellate Division of the U.S. Immigration Courts, the Board of Immigraton Appeals (“BIA”). As in the Immigraton Courts, bond appeal cases at the BIA take precedence and will push decisions on merits appeals further back in line.

Third, Immigraton Judges usually only prepare a bond decision (known as a “Bond Memorandum”) in cases where a bond appeal is actually taken. Since that currently happens only infrequently, the process is manageable. However, if appeals are taken in more cases, and Bond Memoranda are “priorities,” Immigration Judges will have to spend more time writing or dictating Bond Memoranda, further limiting their time to hear cases on the merits. Moreover, by making it more burdensome to release individuals on bond, the system actually creates an inappropriate bias against releasing individuals on bond.

Fourth, yielding to inappropriate pressure from the “Legacy INS,” the Clinton DOJ gave Assistant Chief Counsel regulatory authority to unilaterally stay the release of a respondent on bond under an Immigraton Judge’s order provided that: 1) the Director originally had set “no bond;” or 2) the original bond was set at $10,000 or more. That means that the DHS can effectively neuter the power of the Immigraton Judge to release an individual on bond pending the merits hearing. By contrast, the respondent has no right to a stay pending a decision by the Immigraton Judge not to allow release, unless the BIA specifically grants a stay (which almost never happens in my experience).

Fifth, unlike petitions to review final orders of removal, which must be filed with the appropriate U.S. Court of Appeals at the conclusion of all proceedings, judicial review of bond decisions is sought in the U.S. District Courts. More decisions denying bonds have the potential to create new workload issues for the U.S. District Court.

Fifth, the individuals in the DHS most with the most knowledge and expertise in how the U.S. Immigration Courts work are the Assistant Chief Counsel. Stripping them of their authority to control dockets and settle cases, authority possessed and exercised by every other prosecutor in America, is both dumb and insulting. In what other system do the “cops” have the authority to overrule the U.S. Attorney, the District Attorney, or the State’s Attorney on matters they are prosecuting in court? It also makes the Assistant Chief Counsel job less professional and less attractive for talented lawyers.

In short, the Trump Administration is making a concerted attack on both common sense and due process in the U.S. Immigration Court system. The results are not only unfair, but are wasting taxpayer funds and hampering the already impeded functioning of the U.S. Immigraton Court system. Unless or until the Article III Federal Courts are willing to step in and put an end to this nonsense, the quagmire in the U.S. Immigration Courts will become deeper and our overall U.S. justice system will continue to falter.

We need an independent Article I Immigraton Court now!

PWS

09-23-17

KATHERINE M. REILLY NAMED ACTING DEPUTY DIRECTOR OF EOIR — Also, My “Mini-History” Of EOIR Directors

Here’s the official DOJ press release:
FOR IMMEDIATE RELEASE
Monday, July 3, 2017

Executive Office for Immigration Review Announces New Acting Deputy Director

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katherine H. Reilly as the agency’s Acting Deputy Director. Ms. Reilly has served as Chief Counsel of the Employee and Labor Relations Unit within EOIR’s Office of General Counsel since December 2013.

“Katherine’s varied and impressive legal experience makes her well-suited for assuming the position of Acting Deputy Director at EOIR, especially during this important time when we are mobilizing all of our resources to combat a growing caseload,” said Acting Director James McHenry. “The skills she has acquired as a manager and through her work in employee and labor relations are critical for the agency, both to meet its current challenges and to establish effective policies and procedures for the future.”

In her new capacity as Acting Deputy Director, Ms. Reilly will supervise EOIR’s components and will be responsible for assisting in leading the agency in formulating and administering policies and strategies which enhance EOIR’s effectiveness in fulfilling its core mission of adjudicating cases fairly, expeditiously, and uniformly

Katherine H. Reilly joined EOIR in December 2013 as Chief Counsel of the Employee and Labor Relations Unit within the Office of General Counsel. Prior to her tenure with EOIR, she was the Director of Legal Services for the U.S. Postal Service Office of Inspector General, managing that agency’s employee relations team, civil litigation section, and contracting division. Ms. Reilly also served as a Special Assistant U.S. Attorney for criminal prosecutions in the Northern District of Texas. She began her career with the Federal Trade Commission as an antitrust attorney and also worked for a law firm, advising corporate clients on antitrust and commercial litigation. Ms. Reilly received her Bachelor of Arts and Juris Doctor degrees from the University of Texas at Austin and earned a Master of Laws degree from the University of Melbourne, Australia. Ms. Reilly is a member of the District of Columbia and Virginia bars.

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Congratulations, good luck and best wishes to Acting Deputy Director Reilly.

And, here’s my “Mini-History of EOIR Directors:”

EOIR MINI-HISTORY: DIRECTORS AND DEPUTY-DIRECTORS

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired) & Adjunct Professor of Law, Georgetown Law

 

When EOIR was created within the DOJ in 1983, it merged the previously “stand-alone” Board of Immigration Appeals (“BIA”) with the Immigration Judges, who were previously part of the “Legacy” Immigration and Naturalization Service “INS”). David Milhollan, who was then the Chairman of the BIA also (somewhat reluctantly) became EOIR’s first Director, while retaining his position as Chair, thereby effectively merging the positions of Director and Chair.

 

Upon Milhollan’s retirement, in 1995 the positions were separated to increase the decisional independence of the BIA. For awhile, Jack Perkins, then Chief Administrative Hearing Officer, served as Acting Director. Attorney General Janet Reno named long-time DOJ Senior Executive Anthony C “Tony” Moscato, who had most recently served as the Director of the Executive Office for U.S. Attorneys, the second Director. I was appointed to the now separate position of BIA Chair. Moscato and I had significant roles in the 1983 creation of EOIR.

 

Moscato, noting the growth of EOIR’s functions, recommended the creation of the position of EOIR Deputy Director. Attorney General Janet Reno appointed Kevin D. Rooney as the first Deputy Director. Rooney had served as the Assistant Attorney General for Administration during several Administrations and was in private practice at the time of his appointment.

 

Eventually, Moscato sought and received appointment as a BIA Member. (Thereby going from my “immediate supervisor” to my “direct subordinate,” although these terms make little sense in the EOIR context because neither the Director nor the Chairman has authority to direct the decision-making of Board Members). Rooney succeeded Moscato as the third Director. Then EOIR General Counsel Peg Philbin became the Deputy Director.

 

Philbin served as Acting Director while Rooney was the Acting Commissioner of the INS for a few months during the Bush Administration (uh, talk about conflicts and perceptions, but that really wasn’t a strong point for the Bush II Administration either), but she eventually left EOIR to become a Senior Executive at the State Department. Then Board Member Kevin Ohlson replaced her as Deputy Director. Upon Rooney’s retirement, Deputy Director Ohlson succeeded him as the fourth Director. Ohlson had also held a number of Senior Executive positions within the DOJ prior to his brief stint as a Board Member.

 

When Eric Holder became Attorney General, Ohlson left EOIR to become his Chief of Staff. After some time, during which Judge Thomas Snow served as Acting Director, Juan P. Osuna, then a Deputy Assistant Attorney General in the Civil Division, became the fifth Director. Osuna had also been BIA Chair, BIA Vice Chair, and a Board Member. Ana M. Kocur, then a BIA staff supervisor, was selected to be Osuna’s Deputy.

 

Upon the departure of Osuna and Kocur in May 2017, both the top executive positions in EOIR became vacant. Interestingly, while two former BIA Chairs, Milhollan and Osuna, became Directors, EOIR has never had a Director who had served as a U.S. Immigration Judge at the trial level of the system, although the Immigration Judge program is by far the largest “adjudicating component” of EOIR.

 

Also, no former Immigration Judge has ever held the Deputy Director position. However, as noted above, one current Immigration Judge, Judge Thomas Snow, held the position of Acting Director during the interim between Ohlson’s departure and Osuna’s appointment. Snow, a former top executive in the DOJ’s Criminal Division before his appointment to the bench, was well regarded and well liked by the sitting Immigration Judges. Reportedly, he was offered the position on a permanent basis, but turned it down to return to the Arlington Immigration Court bench where he remains (thus having “outlasted” Osuna).

 

The Director is an unusual position in that as a non-judicial official, he or she is specifically excluded from having any substantive role in EOIR’s sole function: quasi-judicial adjudication. In a future, better-functioning, independent U.S. Immigration Court system, the Chief Appellate Judge (now BIA Chair) would resume the formal role as administrative head of the judicial system, along the lines of the relationship between the Chief Justice and the rest of the Article III Judiciary. The “Director” position would become the “Executive Director of the Administrative Office” subordinate to the Chief Appellate Judge.

 

With the elimination of the inherently political role of the DOJ in the U.S. Immigration Court system, there no longer would be a need to for the largely fictional perception that the “Director” serves as a “buffer” between the “adjudicating components” and the political and litigation officials at the DOJ. The current problems of the U.S. Immigration Court well illustrate the insurmountable difficulties of attempting to run one of the nation’s largest and most important court systems as an “agency” of a political department. Even if the DOJ had the will to allow the Immigration Courts to function independently, it lacks the competence and expertise in court administration to successfully support such a system.

 

The only real question is when will Congress finally face reality and create a truly independent and properly functioning U.S. Immigration court system?

 

PWS

07-06-17