🇺🇸⚖️🗽📚 CMS PROUDLY ANNOUNCES THE OSUNA COLLECTION: “Honoring The Late, Great Juan Osuna on Access to Justice, the Rule of Law and Due Process!”

Juan P. Osuna
Juan P. Osuna (1963-2017)
Judge, Executive, Scholar, Teacher, Defender of Due Process

Special Collection on Access to Justice, Due Process and the Rule of Law in Tribute to Juan Osuna

On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its gathering, CMS is publishing a series of blogs, essays, talks, and papers on the values and issues to which Mr. Osuna devoted his professional life. It will ultimately compile these papers into a CMS special collection in Mr. Osuna’s memory. CMS hopes that this special collection will contribute to the development of a removal adjudication system that operates in a fair, equitable, effective, and rights-respecting way.

Publications

Access to Justice, the Rule of Law, and Due Process in the US Immigration System: A Tribute to Juan Osuna
By Donald Kerwin
Date of Publication: June 16, 2023

The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog
By Donald Kerwin and Evin Millet
Date of Publication: May 25, 2023

Charitable Legal Immigration Programs and the US Undocumented Population: A Study in Access to Justice in an Era of Political Dysfunction
By Donald Kerwin and Evin Millet
Date of Publication: September 28, 2022

Strengthening the US Immigration System through Legal Orientation, Screening and Representation: Recommendations for a New Administration
By Donald Kerwin
Date of Publication: August 26, 2020

Universal Representation: Systemic Benefits and the Path Ahead
By Lindsay Nash
Date of Publication: August 19, 2019

An Overview and Critique of US Immigration and Asylum Policies in the Trump Era
By Paul Wickham Schmidt
Date of Publication: August 14, 2019

Reflections on a 40-Year Career as an Immigration Lawyer and Judge
By Hon. Dana Leigh Marks
Date of Publication: April 8, 2019

Access to Counsel and the Legacy of Juan Osuna
By Ingrid V. Eagly
Date of Publication: February 5, 2019

Access to Justice in a Climate of Fear: New Hurdles and Barriers for Survivors of Human Trafficking and Domestic Violence
By Kathryn Finley
Date of Publication: January 29, 2019

Moving Away from Crisis Management: How the United States Can Strengthen Its Response to Large-Scale Migration Flows
By Rená Cutlip-Mason
Date of Publication: January 23, 2019

No Agency Adjudication?
By Jill E. Family
Date of Publication: December 18, 2018

Immigration Adjudication: The Missing “Rule of Law”
By Lenni B. Benson
Date of Publication: August 8, 2018

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Juan was my friend, colleague, fellow Adjunct Professor at Georgetown Law, and one of my successors as BIA Chair.  My tribute to Juan at the time of his untimely death in 2017 was, I believe, the “most viewed item ever” on “Courtside.” For those who missed it, here it is. https://wp.me/p8eeJm-1gd.

I am honored to have one of my articles included with those of amazing immigration “practical scholars” in this connection!

Many thanks to Don Kerwin for alerting me to this “Tribute Collection” and for his work in putting it together. I know that Don was a close friend and admirer of Juan’s comprehensive and inspiring body of work! Don’s heartfelt introduction, Access to Justice, the Rule of Law, and Due Process in the US Immigration System: A Tribute to Juan Osuna, and several of his original works are included in this collection!

Donald M. Kerwin
Donald M. Kerwin

🇺🇸 Due Process Forever!

PWS

06-18-23

😎🗽⚖️🇺🇸🍻FIVE YEARS OF COURTSIDE! — My New Year’s Eve 2015 Post Is Just As True Today As It Was Then! — The Rise Of The NDPA!

From the 12-31-16 edition of Courtside:

https://immigrationcourtside.com/2016/12/31/family-detention-raids-expediting-cases-fails-to-deter-scared-central-americans/

Family Detention, Raids, Expediting Cases Fail To Deter Scared Central Americans!

Jennings12@aol.com

https://www.washingtonpost.com/world/national-security/central-americans-continue-to-surge-across-us-border-new-dhs-figures-show/2016/12/30/ed28c0aa-cec7-11e6-b8a2-8c2a61b0436f_story.html?utm_term=.077ef694fd73

“Immigration advocates have repeatedly criticized the Obama administration for its increased reliance on detention facilities, particularly for Central American families, who they argue should be treated as refugees fleeing violent home countries rather than as priorities for deportation.

They also say that the growing number of apprehended migrants on the border, as reflected in the new Homeland Security figures, indicate that home raids and detentions of families from Central America isn’t working as a deterrent.”

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The “enforcement only” approach to forced migration from Central America has been an extraordinarily expensive total failure. But, the misguided attempt to “prioritize” cases of families seeking refuge from violence has been a major contributing factor in creating docket disfunction (“Aimless Docket Reshuffling”) in the United States Immigration Courts.  And, as a result, cases ready for trial that should have been heard as scheduled in Immigration Court have been “orbited” to the end of the docket where it is doubtful they ever will be reached.  When political officials, who don’t understand the Immigration Court and are not committed to its due process mission, order the rearrangement of existing dockets without input from the trial judges, lawyers, court administrators, and members of the public who are most affected, only bad things can happen.  And, they have!

PWS

12/31/16

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“Aimless Docket Reshuffling” and “deterrence only” remain just as stupid, immoral, inefficient, and counterproductive today. And, politicos’ willful misunderstanding of “forced migration,” its opportunities, and how to respond in a legal, positive, moral, humane, and effective manner continues to roil our politics and diminish our nation.

While, perhaps not surprisingly, policy makers and politicos have “tuned out the truth” presented on Courtside, the New Due Process Army (“NDPA”) has sprung into life and “taken it to” the misguided and short-sighted bureaucrats, politicians, and judges of both parties!

A few “Courtside @ 5” stats, as of 3:30 pm yesterday:

  • 373 subscribers;
  • 4,563 published posts;
  • 714,869 all-time views;
  • 1,063 comments; 
  • 250-300 average readership for Dec. 2021;
  • Most views, one day: 2,786, August 17, 2017, lead item: “BREAKING: IN MEMORIAM: HON. JUAN P. OSUNA, LEGENDARY IMMIGRATION FIGURE, DIES SUDDENLY — Was Chairman of BIA, Director of EOIR, High-Ranking DOJ Executive, Editor, Professor — Will Be Remembered As Kind, Gentle, Scholarly, Dedicated!”
  • For better or worse, obits and memorials are consistently among the “most viewed” and commented upon items on “Courtside!”

May 2022 bring us wisdom, humanity, compassion, and vast improvement in our treatment of asylum seekers and other immigrants! May “equal justice for all” become a reality in America rather than a cruel, unachieved, broken promise to ourselves and the rest of humanity.

Happy New Year 🥂, and Due Process Forever! 🗽🇺🇸⚖️

PWS

12-31-21

⚖️EOIR GUIDANCE ON ADMINISTRATIVE CLOSING — GOOD, BUT COULD HAVE BETTER! —Why Is A Non-Judge Director (“Senior Court Administrator”) Issuing Non-Binding “Guidance” That Should Have Been In BIA Precedents?

UY

https://www.justice.gov/eoir/book/file/1450351/download

PURPOSE:

OOD DM 22-03

Issued: Nov. 22, 2021 Effective: Immediately

ADMINISTRATIVE CLOSURE

Provide guidance to adjudicators on administrative closure in light of Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

David L. Neal, Director 8 C.F.R. § 1003.0(b)

On July 15, 2021, the Attorney General issued a precedential decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In that decision, the Attorney General restored the authority of immigration judges and the Board of Immigration Appeals (Board) to administratively close cases. This memorandum discusses the practical implications of the Attorney General’s decision, particularly in light of the Executive Office for Immigration Review’s (EOIR) pending caseload.

II. Administrative Closure to Date

Administrative closure “is a docket management tool that is used to temporarily pause removal proceedings.” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017). An immigration judge’s or appellate immigration judge’s administrative closure of a case “temporarily remove[s] [the] case from [the] Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). Administrative closure came into widespread use by EOIR adjudicators in the 1980s. Cases have been administratively closed for a variety of reasons over the years, and the Board has issued several decisions addressing when administrative closure is appropriate. The Board’s two most recent such decisions are Matter of Avetisyan and Matter of W-Y-U-, issued in 2012 and 2017, respectively.

In 2018, Attorney General Sessions issued Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). He held that, with limited exceptions, “immigration judges and the Board do not have the general authority” to administratively close cases. Matter of Castro-Tum, 27 I&N Dec. at 272. The Third, Fourth, Sixth, and Seventh Circuits subsequently ruled on challenges to Matter of Castro- Tum. A circuit split emerged, with the Third, Fourth, and Seventh Circuits holding that

OWNER:

AUTHORITY: CANCELLATION: None

I. Introduction

1

adjudicators have the general authority to administratively close cases,1 but with the Sixth Circuit holding that adjudicators have the authority to administratively close cases only in limited circumstances.2 In 2020, the Department of Justice (Department) promulgated a final rule that essentially codified Matter of Castro-Tum, restricting EOIR adjudicators’ ability to administratively close cases. See “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” 85 Fed. Reg. 81588 (Dec. 16, 2020). However, this rule has been preliminarily enjoined nationwide. See Centro Legal de La Raza v. Exec. Office for Immigration Review, 524 F.Supp.3d 919 (N.D. Cal. Mar. 10, 2021).

In Matter of Cruz-Valdez, the Attorney General noted that Matter of Castro-Tum “departed from long-standing practice” by prohibiting administrative closure in the vast majority of circumstances. Matter of Cruz-Valdez, 28 I&N Dec. at 329. He also noted that the Department is “engaged in a reconsideration” of the enjoined 2020 rule. Id. Given these factors, the Attorney General, in Matter of Cruz-Valdez, “overrule[d] [Matter of Castro-Tum] in its entirety,” and he “restore[d] administrative closure” pending the current rulemaking. Id. He specified that, in deciding whether to administratively close cases pending the rulemaking, “except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Avetisyan and W-Y-U-.” Id.

III. Administrative Closure after Matter of Cruz-Valdez

With administrative closure restored, EOIR adjudicators have the authority, under the Board’s case law, to administratively close a wide variety of cases. Going forward, pending the promulgation of a regulation addressing administrative closure, adjudicators must evaluate requests to administratively close cases under Matter of Avetisyan and Matter of W-Y-U-, as well under as the Board’s case law predating those decisions, to the extent that case law is consistent with those decisions. Adjudicators should accordingly familiarize themselves with Matter of Avetisyan, Matter of W-Y-U-, and the Board’s prior case law addressing administrative closure.

The restoration of administrative closure will assist EOIR adjudicators in managing their dockets given EOIR’s caseload. In Matter of Cruz-Valdez, the Attorney General recognized that administrative closure has in the past “served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.” Matter of Cruz-Valdez, 28 I&N Dec. at 327. EOIR has finite resources and a daunting caseload. Given this reality, it is important that adjudicators focus on two categories of cases: those in which the Department of Homeland Security (DHS) deems the respondent to be an immigration enforcement priority,3 and those in which the respondent

1 See Arcos Sanchez v. Att’y Gen., 997 F.3d 113, 121-24 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282, 292-94 (4th Cir. 2019).

2 Specifically, the Sixth Circuit initially held that the regulations do not delegate to immigration judges or the Board the general authority to administratively close cases. Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020) . But the Sixth Circuit later held that the regulations provide adjudicators “the authority for administrative closure” to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. Garcia-DeLeon v. Garland, 999 F.3d 986, 991 (6th Cir. 2021).

3 Effective November 29, 2021, DHS’s immigration enforcement priorities are noncitizens DHS deems to pose risks to national security, public safety, and border security. See Memorandum from Alejandro N. Mayorkas, Secretary,

2

desires a full adjudication of his or her claim or claims. Being able to administratively close low priority cases will help adjudicators do this.

Under case law, where DHS requests that a case be administratively closed because a respondent is not an immigration enforcement priority, and the respondent does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating that the parties’ “agreement on an issue or proper course of action should, in most instances, be determinative”); Matter of Cruz-Valdez, 28 I&N Dec. at 327 (recognizing the role of administrative closure in “facilitat[ing] the exercise of prosecutorial discretion”).

Administrative closure is appropriate in many other situations as well. For example, it can be appropriate to administratively close a case to allow a respondent to file an application or petition with an agency other than EOIR. See Matter of Avetisyan, 25 I&N Dec. at 696 (identifying “the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings” as a factor for adjudicators “to weigh” in evaluating requests for administrative closure); 8 C.F.R. § 212.7(e)(4)(iii) (permitting a respondent in removal proceedings to file a Form I-601A, Application for Provisional Unlawful Presence Waiver, with U.S. Citizenship and Immigration Services where the “proceedings are administratively closed and have not yet been recalendared at the time of filing the application”). It can also be appropriate to administratively close a case while an agency adjudicates a previously filed application or petition, or, if a visa petition has been approved, while waiting for the visa to become available. See Matter of Avetisyan, 25 I&N Dec. at 696. It is generally appropriate to administratively close a case where a respondent has been granted temporary protected status. See Matter of Sosa Ventura, 25 I&N Dec. 391, 396 (BIA 2010). This is only a partial list; administrative closure can be appropriate in other situations not mentioned here. See Matter of Avetisyan, 25 I&N Dec. at 696 (stating that each request for administrative closure “must be evaluated under the totality of the circumstances of the particular case”).

Where a respondent requests administrative closure, whether in a scenario described above or another scenario where administrative closure is appropriate, and DHS does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. at 1026. Where a request for administrative closure is opposed, “the primary consideration . . . is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Matter of W-Y-U-, 27 I&N Dec. at 20. But adjudicators should bear in mind that “neither party has ‘absolute veto power over administrative closure requests.’” Id. at n. 5 (quoting Matter of Avetisyan, 25 I&N Dec. at 692).

Where at all possible, issues involving administrative closure should be resolved in advance of individual calendar hearings and not at hearings. Immigration judges are therefore encouraged to send scheduling orders to parties well before the hearing takes place, inquiring of DHS whether the respondent is an immigration enforcement priority, and otherwise soliciting the parties’ positions on administrative closure and other issues related to prosecutorial discretion. Where

Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

3

such issues have not been resolved in advance of an individual calendar hearing, the immigration judge should ask DHS counsel on the record at the beginning of the hearing whether the respondent is an immigration enforcement priority. Where DHS counsel responds that the respondent is not a priority, the immigration judge should further ask whether DHS intends to exercise some form of prosecutorial discretion in the case. As part of this colloquy, the 4 immigration judge should ask whether the parties want the case administratively closed.

IV. Conclusion

Administrative closure is a longstanding, and valuable, tool for EOIR adjudicators. As the Attorney General noted in Matter of Cruz-Valdez, the Department is currently engaged in rulemaking that will address adjudicators’ authority to administratively close cases. Pending that rulemaking, adjudicators have the authority under Matter of Cruz-Valdez to administratively close many cases before them when warranted under Board case law. Adjudicators should familiarize themselves with the situations in which administrative closure is appropriate, and adjudicators should be proactive in inquiring whether parties wish for cases to be 5 administratively closed. If you have any questions, please contact your supervisor.

4 There is one potential caveat to the guidance and instructions in this section. As noted above, the Attorney General stated that, pending the promulgation of a regulation addressing administrative closure, immigration judges and the Board should apply the Board’s case law “except when a court of appeals has held otherwise.” Matter of Cruz- Valdez, 28 I&N Dec. at 329. For cases arising in the Sixth Circuit, adjudicators must determine to what extent administrative closure is permitted given that court’s case law, and they must handle issues involving administrative closure accordingly. See Garcia-DeLeon, 999 F.3d 986; Hernandez-Serrano, 981 F.3d 459.

5 This memorandum does not create any legal rights or benefits for either party, and it does not mandate that a particular motion for administrative closure be granted or denied. In all cases, immigration judges and appellate immigration judges must exercise their independent judgment and discretion in adjudicating motions for administrative closure consistent with the law. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).

4

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WHAT SHOULD HAVE HAPPENED: Garland should have appointed the “Chen-Markowitz BIA” and empowered them to aggressively clean up the backlog, using administrative closing among others tools (such as referral to USCIS and more favorable precedents requiring the granting of relief in meritorious cases).

https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

In a properly functioning quasi-judicial system, this same “guidance” should have come in a series of BIA precedents that would require BIA panels and the Article IIIs to enforce compliance among recalcitrant Immigration Judges. That could be accompanied by unilateral action by the BIA to close “deadwood” cases on the appellate docket. Either party could request re-docketing, with a justification. (Hint: In my BIA career, we closed thousands of cases of this way and I could count on one hand the number of “redocketing” motions we received.) Also, in a better system, the Immigration Judges already would be aggressively taking these “common sense” steps.  Precedents properly applying asylum, withholding, and CAT would be cutting into the largely “manufactured” backlog.

WHAT ACTUALLY HAPPENED: Typical Dem timid approach.

Unless the BIA actually believes in this “guidance” (doubtful, given it’s current “packing” with notorious anti-immigrant judges by Sessions and Barr, unaddressed by Garland) and is willing to enforce it and incorporate it into precedents, it won’t achieve its objective of promoting fairness and efficiency! Nor will it significantly reduce the backlog. 

Perhaps the “rulemaking” referenced in Director Neal’s memo will solve the problem. But, EOIR’s history of completing such rulemaking, particularly in Dem Administrations, has been less than stellar. See, e.g., Gender-Based Asylum Regs (3 Dem Administrations, 0 Regs); Ineffective Assistance of Counsel Regs (2 Dem Administrations, 0 Regs). 

One problem: Dem Administrations often feel compelled to engage in false “dialogue,” look for an unachievable “consensus,” and pay attention to public comments; GOP Administrations simply plow ahead with their preconceived agenda without regard to expert input, public opinion, or empirical data. 

Consequently, although Dems have failed over more than two decades to finalize final gender-based asylum regulations, Stephen Miller was able to publish outrageous final regulations eliminating more than two decades of gender-based case law progress in a few months. Fortunately, those regs were promptly enjoined!

Over the past two decades, the GOP has radically “weaponized” EOIR as an enforcement tool. Dems have pretended not to notice and have squandered at least nine years of basically “unrestricted” opportunities to restore some semblance of due process, sanity, and humanity @ EOIR! As my friend Karen Musalo said in her recent LA Times op-ed, “actions speak louder than words.” 

EOIR’s latest “actions,” while better than nothing, are unnecessarily ineffective.This is supposed to be a “court system,” not a bureaucratic “agency,” run by “policy directives” and a top-heavy, bloated bureaucracy with fancy-titled “supervisors” and superfluous “program managers.”

Until we get an Attorney General who considers migrants to be persons (humans), views immigrant justice as important, understands what a court is, how it operates, and has the guts to install the practical progressive experts who can make it happen, EOIR will continue to be an embarrassment to American justice.

🇺🇸Due Process Forever!

PWS

11-27-21

⚖️🗽🇺🇸👩🏻‍⚖️BREAKING: GREAT NEWS FOR DUE PROCESS! – McHenry Ousted @ EOIR, Replaced By Highly Competent, Due-Process-Oriented Professional Judicial Administrator Jean King (Acting) – McHenry Led Miller/Hamilton “Weaponization” Of EOIR, Interference With Judicial Independence, Anti-Asylum White Nationalist Agenda, War On NAIJ & Lawyers, Creation Of 21st “Century Star Chambers” — Gross Mismanagement Helped Artificially “Jack Backlog” To Astounding 1.3 Million Cases With Thousands Of Others Likely “Lost in Space” In EOIR Chaos & Dysfunction!

 

 

McHenry informed EOIR employees last Friday that he was returning to his position as an OCAHO Administrative Law Judge. Can’t imagine there were too many tears shed, except within the “inner circle” of the “EOIR kakistocracy.”

 

OCAHO has long been viewed as EOIR’s “Siberia equivalent” and has been used to “exile” other “out of favor” Senior Execs in the past (ironically including King). Given OCAHO’s traditionally rather limited docket, it appears that McHenry’s ability to further damage our justice system and demean humanity will be restricted.

 

Notably, he was appointed Director by former Attorney General and notorious child abuser Jeff “Gonzo Apocalypto” Sessions without any known qualifications to manage one of America’s largest, most important, and totally screwed-up court systems. Over his four-year tenure, he proved to be every bit as unqualified for the job as his embarrassingly-thin resume originally suggested he would be.

He was part of the remarkably unqualified aptly-named “Atlanta Mafia” at EOIR. They degraded justice and humanity in equal portions as part of their nativist crusade to expand the “Atlanta Asylum Free Zone” nationwide. Basically, only the courageous hard work of talented immigration advocates stopped their nefarious program from reaching its objective, although that’s not to minimize in any way the lasting damage they did to our legal system and human lives.

Among McHenry’s many negative achievements was driving already-low EOIR morale and poor working conditions to depths never before seen or imagined. And, that was for his own employees! Imagine what it was like for foreign nationals and their courageous, determined, yet beleaguered attorneys consigned to this “hell on earth” specially designed to chew up lives and degrade humanity as part of as vile “strategy” to use “courts as deterrents” to those with audacity to seek justice in America.

 

Jean King, by contrast, is an experienced public servant known for her commitment to due process, fundamental fairness, sound scholarship, ethical standards (something that has “gone AWOL” at the DOJ over the past four years), and the “lost art of good government” which the Biden-Harris Administration appears committed to re-establishing.

 

Jean served on the on the BIA staff when I was Chair. She advanced in EOIR during the tenure of the late Juan Osuna as BIA Chair and then Director. She reportedly chose “exile to OCAHO” after she refused as General Counsel to “go along get along” with some of McHenry’s more outrageously illegal regulatory/administrative moves. He also retaliated by cutting the authority of the OGC and assigning it instead to his bogus “Office of Policy.” (Talk about “fraud, waste, and abuse” of government resources –- while the Immigration Courts lacked, and still lack, a functioning e-filing system, McHenry found time and resources for shenanigans like this, obscene “Immigration Judge dashboards,” and pursuing “decertification” of the NAIJ which had “blown the whistle” on his “maliciously incompetent” management!)

 

McHenry’s continuing presence as Director following the inauguration and his “in your face audacity” in issuing memos attempting to define “judicial independence” as obedience to the White Nationalist restrictionist agenda he had been implementing rightly drew outrage from all immigration experts who understand the ongoing contempt for due process and abuses of humanity that have somehow become “institutionalized” as “acceptable behavior” at EOIR during the last four years. https://www.politico.com/news/2021/01/27/biden-replaces-immigration-court-463053

 

 

If nothing else, Jean King should be able to stop the flood of illegal regulations, false and misleading policy memos and bogus “fact sheets,” and further deterioration of due process until “Team Garland” gets its “EOIR Reform Group” in place.

 

All of us who care about American justice and due process should be heartened that somebody on the Biden Team is aware of the due process disaster at EOIR, has taken bold, decisive action, and apparently plans to fix it, sooner rather than later!

 

Here is Jean’s bio from the EOIR website:

 

Jean King
Chief Administrative Law Judge

Jean King was appointed as the chief administrative law judge in June 2019. Immediately prior to assuming her current duties, she served as general counsel of the Executive Office for Immigration Review (EOIR) beginning in September 2015. Ms. King received a bachelor of arts degree in 1988 from Brown University and a juris doctorate in 1995 from the College of William and Mary. From July 2015 to August 2015, and previously from December 2012 to October 2014, Ms. King served as deputy general counsel, EOIR. From November 2014 to June 2015, she served as acting general counsel, EOIR. From October 2011 to December 2012, she served as a counsel to the director, EOIR. From March 2011 to October 2011, she served as acting director of operations, Board of Immigration Appeals (BIA), EOIR. From 2009 to March 2011, Ms. King served as a temporary board member, BIA. From 2006 to 2009, she was a senior legal advisor at the BIA. From 1996 to 2006, she served as an attorney advisor at the BIA. Prior to joining the BIA, Ms. King spent one year as a judicial law clerk with the Superior Court of Connecticut. Ms. King is a member of the Connecticut and New York State bars.

 

 

 

 

Good luck Jean! Please don’t forget the “Old EOIR Vision” that used to at the top of our internal web page– “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” It’s still the right vision for EOIR and America, and with the right team, in place, it still can be achieved!

 

Due Process Forever!

PWS

 

01-27-21

 

 

 

 

“THE ASYLUMIST” INTERVIEWS RETIRED CHIEF IMMIGRATION JUDGE MARYBETH T. KELLER – Chronicling The Rise & Sad Demise Of EOIR: From Protector To Abuser Of Due Process: “Under Director McHenry, the advice of the agency’s career executives was often not even solicited, and did not appear to be valued. His approach caused many to question the soundness of his operational decisions, and his commitment to the mission of the court, as opposed to accommodating the prosecutorial goals of DHS.”

MaryBeth Keller
Hon. MaryBeth T. Keller
Retired Chief Immigration Judge
Jason Dzubow
Jason Dzubow
The Asylumist

 

http://www.asylumist.com/2019/10/15/an-interview-with-marybeth-keller-former-chief-immigration-judge-of-the-united-states/

 

MaryBeth Keller was the Chief Immigration Judge of the United States from September 2016 until July 2019. She was the first woman to hold that position. The Asylumist sat down with her to discuss her career, her tenure as CIJ, and her hope for the future of the Immigration Courts.

Asylumist: Tell us about your career. How did you get to be the Chief Immigration Judge of the United States?

Judge Keller: I was appointed to the position by Attorney General Loretta Lynch in 2016. By that time, I had been at EOIR (the Executive Office for Immigration Review) for 28 years, and had a lot of experience with and knowledge of the entire organization, especially the Office of the Chief Immigration Judge (“OCIJ”) and the Board of Immigration Appeals (“BIA”).

After law school at the University of Virginia, I clerked for state court judges in Iowa. I wanted to return to DC, and in those days – the late 1980s – there were a lot of options. I submitted my resume to a federal government database and was selected to interview at the BIA for a staff attorney position (they liked the fact that I had taken an immigration law class with Professor David Martin at UVA). At the interview, I knew it would be an incredible job. The BIA is the highest level administrative body in immigration law, and the people I met seemed happy to be there. I thought I would stay maybe two years and then move on, but I ended up remaining with EOIR for 31 years.

MaryBeth Keller

I was at the BIA for about 15 years, nine of those as a manager. In my early days as a staff attorney, I helped revitalize the BIA union, which was basically defunct when I arrived. Some employees had wanted to simply decertify the union, but a colleague and I convinced the majority of attorneys and staff that it could be a useful organization, so they voted to keep it. I was the union president for several years. After I later became a manager, my colleagues joked that my penance for having led the BIA union was to have to deal with the union from the other side. I helped then-Chairman Paul Schmidt revamp and restructure the BIA in the mid-1990s.

From there, I served as EOIR’s General Counsel and was involved with many reforms, including the institution of the first fraud program and a program to address complaints about the conduct of Immigration Judges. This ultimately led to my appointment as the first Assistant Chief Immigration Judge (“ACIJ”) for Conduct and Professionalism (“C&P”). At the time, David Neal was the Chief Immigration Judge, and we built the C&P program from whole cloth. In addition to responsibility for judge conduct, performance, and disciplinary issues, I supervised courts from headquarters and was the management representative to the judges’ union. All of this experience led to me to the position of Chief Judge.

Asylumist: What does the CIJ do? How is that position different from the EOIR Director or General Counsel?

Judge Keller: I view the CIJ’s job as leading the trial level immigration courts to execute the mission of EOIR, including, most importantly, managing the dockets to best deliver due process. In practical terms, this involved hiring and training judges and staff, determining the supervisory structure of the courts, directing the management team of Deputies, ACIJs, and Court Administrators, overseeing the Headquarters team that supports the field, including an administrative office, a business development team, legal advisers, an organizational results unit, and an interpreters unit. The CIJ also collaborates with the other senior executives such as the Chairman of the BIA, the General Counsel, and the Director of Administration to coordinate agency activities on a broader scale. In years past, the CIJ acted as a high-level liaison with counterparts in DHS, the private bar, and other governmental and nongovernmental groups.

The regulations–specifically 8 C.F.R. 1003.9–describe the function of the CIJ. I kept a copy of that regulation on my wall. The regulations set forth the CIJ’s authority to issue operational instructions and policy, provide for training of the immigration judges and other staff, set priorities or time frames for the resolution of cases, and manage the docket of matters to be decided by the immigration judges.

Despite the regulation, under the current Administration, much of the CIJ’s, authority has been assumed by the Director’s Office or the newly created Office of Policy. Court operational instructions, court policy, the provision of training, setting priorities and time frames for case disposition, and many other matters are now being performed by the EOIR Director’s Office, with minimal input from the CIJ and OCIJ management. I do recognize the regulation setting forth the authority of the Director, as well as the fact that the CIJ’s authority is subject to the Director’s supervision. However, reliance on career employees and specifically the career senior executives (Senior Executive Service or SES) at the head of each EOIR component is significantly diminished now. I believe that is compromising the effectiveness of EOIR as a whole. Senior Executives have leadership skills and incredible institutional knowledge and experience that should bridge that gap between policy and operations. They should be a part of developing the direction of the agency and its structure to most effectively accomplish its functions, but are instead largely sidelined and relegated to much more perfunctory tasks. I worry that people with valuable skills will not be satisfied with decreased levels of responsibility, and will leave the agency. This will make it more difficult for EOIR to meet the challenges it is facing.

To answer the question as to how the CIJ position is different from the Director and General Counsel, the EOIR Director manages all the components of the Agency (BIA, OCIJ, Administration, and OGC) and reports to the Deputy Attorney General. The EOIR General Counsel provides legal and other advice to the EOIR component heads and the Director.

Asylumist: What were your goals and accomplishments as CIJ? Is there anything you wanted to do but could not get done?

Judge Keller: I was fortunate to serve as the CIJ at a time of many changes: Hiring an unprecedented number of IJs, finally beginning to implement electronic filing, and creating new ways to effectively complete cases. At the same time, we faced challenges, such as the ever-changing prioritization of certain types of cases, an increased focus on speed of adjudication, and the creation of the new Office of Policy within the agency, which was given far-reaching authority.

Amid these changes, one of my goals was to use my experience at the agency and my credibility to reassure judges and staff that, despite any changes, our mission of delivering fair hearings and fair decisions would remain unchanged. I always told new classes of judges that their primary responsibility was to conduct fair hearings and make fair decisions. Due process is what we do. And if we don’t get that right, we are not fulfilling the mission of the immigration court. I had the sense that my presence as CIJ gave people some level of security that we were holding on to that mission during all of the change.

Another goal was to hire more staff. I thought I would have more control over hiring and court management than I ultimately did. In terms of hiring, while we greatly increased the number of IJs, it is important to remember that IJs cannot function without support staff: Court administrators, legal assistants, clerks, interpreters, and others. The ratio is about 1-5, judges to support staff. Our hope was also to have one law clerk per IJ and we made some major progress in that regard. It might be wiser for EOIR to take a breather from hiring more judges and focus on hiring support staff, because that is imperative for the court to function. Overall, I was not able to prioritize staff hiring as I would have liked, nor was I confident that my office’s input had much impact on hiring decisions.

Aside from hiring many more judges, some of the positive changes we made while I was there included implementing shortened oral decisions–we do not need a 45-page decision in every case. Shorter decisions, where appropriate, are vital to increasing efficiency. We also encouraged more written decisions. It seems counterintuitive, but written decisions can actually be more efficient than oral decisions. If you have the written material available, as well as law clerks, and the administrative time to review the decision, written decisions save the time that would be spent delivering the oral decision and that time can be used for additional hearings. For this purpose, we greatly increased the accessibility of legal resources for both judges and staff through the development of a highly detailed and searchable user-friendly electronic database of caselaw, decisions, and other reference material.

Importantly, we were also working on ways to replace the standard scheduling based on Individual and Master Calendar Hearings. Instead, in a manner more like other courts, we would schedule cases according to the particular needs of the case, including creating, for example, a motions docket, a bond docket, a short-matters docket. Cases would be sent to certain dockets depending on what issues needed to be addressed, and then move through the process as appropriate from there. Different judges might work on one case, depending on what was needed. During the course of this process, many cases would resolve at the earliest possible point, and some would fall out–people leave the country, they obtain other relief, etc. But in the meantime, such cases would not have taken up a normally-allotted four hour Individual Calendar hearing block in the IJ’s schedule. We were looking to do at least three things: Secure a certain trial date at the start of proceedings, allot time judiciously to each matter, and reduce the time between hearings. If the immigration courts could successfully transition to this model, it would improve the timeliness and rate of completion of final decisions.

While I was CIJ, we also looked to see how other courts dealt with issues such as technology. For example, we went to see the electronic systems at the Fairfax County, Virginia court. That system is more advanced than EOIR’s, and it would, for example, allow a judge to give advisals that are simultaneously translated into different languages for different listeners. This would eliminate the time it takes to do individual advisals, without sacrificing the face-to-face time with the judge. We also investigated video remote interpreting, which is having the interpreter in the courtroom via video, so everyone can see and hear each other as if they were in the same place. IT infrastructure to properly support such initiatives is very expensive, but is obviously currently available and used by other court systems. Changes like improving the interpretation system and implementing e-filing and a user friendly electronic processing system would make a profound difference in how the courts operate.

I believe that some of these ideas are still being considered, but the problem is that there does not seem to be much patience for changes that are not a quick fix. I had hoped to move things further than we were able to, but we did make progress as I discussed.

As another example of a positive accomplishment, EOIR is now very effectively using more contractors for administrative support. This was started by Juan Osuna when he was Director of EOIR, and it has been highly successful. Because our growth has been so rapid, contract employees allow us to get top-notch people quickly, and gives us the flexibility to easily replace someone whose performance is not up to speed. Contractors are not a substitute for permanent employees, but can bridge the gap between a vacancy and a new hire. Once contractors have some experience, they can apply for permanent positions and by then, we have good knowledge of their skills and can hire experienced workers.

Finally, a major accomplishment was that I was the first female Chief Immigration Judge. Even though my experience was extensive, I still had to fight to get the job, including nine hours of interviews. At the time, I think I underestimated how much the workplace was still unaccustomed to women in particular positions. The emails I received after I left the job were astounding. Men and women alike wrote to tell me how much it meant to them to have a female CIJ.

Asylumist: How did things at EOIR change between the Obama Administration and the Trump Administration?

Judge Keller: Things now are unlike any time in the past. As I think we have been seeing throughout government during this Administration, the difference seems to be that there is now a fundamental distrust of people and organizations in the federal government. Over three decades, I have worked through a variety of administrations at all points on the political spectrum. Long-time federal employees are very accustomed to altering course when new administrations come in, whether or not the political parties change. Many employees and executives like me welcomed change as an opportunity to move their organizations forward and make the delivery of their services better. But if those in political power do not trust their subordinates and the functions of the agencies they run, it’s a very different and difficult scenario.

Some of the “small p” political pressure was happening by the end of the Obama Administration. For example, we saw this with children’s cases and the instruction we received from Justice Department leaders in political positions to prioritize those cases on our dockets. Still, in that instance, once the political goal was set, the best way to accomplish the goal, and even its ongoing feasibility, was largely left to senior staff in the agency with operational expertise to implement or to ultimately advise superiors that a different course of action might be needed. Now, very often both the political and the operational decisions down to the smallest details are dictated from above. For example, even my emails and communications to staff were edited from above. Aside from the very questionable advisability of having operational determinations made by persons with no operational expertise, this approach subjects the court process to claims that it is not neutrally deciding cases but instead deciding cases in the manner that political leaders would like.

Until recently, I had never really thought very hard about an Article I court for immigration cases. I thought that the line between politics and neutral adjudication was being walked. There was no major concern from my perspective about EOIR managers navigating that line. Now, the level of impact of political decisions is so extraordinary that I wonder whether we do need to remove the immigration courts from the Department of Justice. I’ve just started to seriously consider the validity of this idea and I need to do more research and thinking about it. The American Bar Association’s recommendations are very persuasive and of significant interest to me. Before, I would not have thought it necessary.

Of course, moving the Immigration Courts to Article I status would not solve all our problems, but it could free us from some of the questions that have been raised over the years about politicized hiring, how cases are being politically prioritized, and whether that is appropriate for a court.

Another large change came in our ability to talk to those we serve. To best function, you have to talk to stakeholders on both sides: The Department of Homeland Security (DHS) and the private bar/respondents. This used to be standard procedure in past administrations, and it was done at both the upper and ground levels. Recently, such conversations were much more limited, and took place primarily at higher levels, often above my position and that of my Deputies. This change was touted as a way to streamline the Agency’s messaging system, but cutting off other forms of communication is detrimental, and I think EOIR has been hampered by our inability to talk at different levels to stakeholders.

We previously had a great relationship with the American Immigration Lawyers Association (“AILA”). For example, when I was working on conduct and professionalism for Immigration Judges, AILA was a great help. At the time, AILA’s message was the same as our message (poor conduct of adjudicators and representatives should be addressed), and we successfully partnered for a long time. Similarly, the CIJ previously had regular interactions with DHS’s Principal Legal Advisor and others in the DHS management chain, but that is no longer the case. Another change to the management structure that I believe was ill-advised was abolishing the “portfolio” ACIJs who bore targeted responsibility for several very important subjects to immigration court management: Judge conduct and professionalism, training, and vulnerable populations. In my experience, having officials whose specialized function was to oversee programs in these areas increased the integrity, accessibility, credibility, and efficiency of the court.

Asylumist: While you were CIJ, EOIR implemented quotas. IJs are now supposed to complete 700 cases per year. Can you comment on this?

Judge Keller: Many different court systems have performance goals and I am generally in favor of those. But the question is, How do you establish and implement them? Are you consulting the managers and IJs about it? How do you come up with the goals? Should they be uniform across the courts? The current requirements were not developed by me or my management team. Numeric expectations alone are not going to fix things. Timeliness is more important in my view than specific numbers. Moreover, the way that the emphasis is being placed on these numbers now sends the wrong message to both the parties and our judges and court staff. Also, court staff and stakeholders would more likely buy into such a change if they understood how the goal was developed, and why. My experience is that IJs are generally over-achievers and they want to do well and will meet or exceed any goals you set. In my view, completing 700 cases may be an appropriate expectation for some judges and dockets, and might be too high or even too low for others. Courts, dockets, and cases are vastly different from the southern border to the Pacific Northwest to the bigger cities, so I’m not sure about a one-size-fits-all approach.

Asylumist: What about the Migrant Protection Protocols (“MPP”), also known as the Remain in Mexico policy. Can you comment on the effectiveness or efficacy of this program?

Judge Keller: The MPP began right before I left EOIR. In the MPP, as with all dockets, the role of the immigration court is simply to hear and resolve the cases that DHS files, but there were and still are, many legal and procedural concerns about the program. For example, what is the status of a person when they come across the border for their hearing, are they detained or not? Also, there were significant practical considerations. If you bring people across the border and plan to use trailers or tents for hearings, you need lines for IT equipment, air conditioning, water, bathrooms, etc. All that needs to be taken care of well in advance and is a huge undertaking. My impression of the MPP was that it was a political policy decision, which, even if an appropriate DHS exercise, is evidence of how asking the court to prioritize political desires impacts the overall efficiency of the court. The resources it required us to commit in terms of planning, and the resources it took away from the remaining existing caseload will likely contribute to further delay in other cases.

Asylumist: According to press reports, you and two other senior EOIR officials–all three of you women–were forced out in June 2019. What happened? Why did you leave?

Judge Keller: Unless there is something I don’t know about my two colleagues, none of us was forced out. I was not. We could have stayed in our same roles if we had chosen to do so. At the same time, I would not necessarily say that our departures were completely coincidental. I do know that the nature of our jobs had changed considerably.

For me, the previous level of responsibility was no longer there, and I did not have the latitude to lead the OCIJ workforce. My experience and management skills were not being used and I was mostly implementing directives. Any time three experienced, high-level executives depart an agency, there should be cause for concern. The fact that we were all women certainly raises a question, but EOIR has always been pretty progressive in that regard. Nevertheless, appropriate equal respect for women in the workplace is something that unfortunately still needs attention everywhere.

Leaving EOIR was a hard decision for me to make, and I think it was a big loss for EOIR that all three of us chose to exit.

The politicization of the court was also a concern for me. Historically, the Director of EOIR was always a career SES appointee, not a political SES. I viewed that as critically important, symbolically and practically, for a court system, especially one like the immigration court within the Executive Branch. Director James McHenry is in a career Senior Executive position. However, his path to the position was through the new Administration, which had detailed him from his position as a relatively new Administrative Law Judge to Main DOJ as a Deputy Assistant Attorney General for a while before he became the Director. It appears that the large majority of his career otherwise was at DHS in non-managerial positions.

Successfully overseeing or managing an organization the size of EOIR with all of its challenges today would be difficult even for a seasoned executive with a lot of management experience.

The question at this time for EOIR is, How does your mission of fair adjudication of immigration cases fit within the broader immigration goals of the government? It takes deft and nuanced management to ensure the integrity of a court of independent decision-makers while maintaining responsiveness to political leaders. A good manager listens to people with expertise and is skilled at motivating others, getting the most from each employee, developing well-thought-out operational plans to reach policy goals, and even changing course if necessary. Under Director McHenry, the advice of the agency’s career executives was often not even solicited, and did not appear to be valued. His approach caused many to question the soundness of his operational decisions, and his commitment to the mission of the court, as opposed to accommodating the prosecutorial goals of DHS. I didn’t think there was as much focus on improving how we heard cases, as there was on meeting numeric goals and adjusting to the priorities of the DHS.

Asylumist: The BIA recently added six new members. All are sitting IJs and all had lower than average asylum approval rates. Do you know how these IJs were selected? What was the process?

Judge Keller: This was stunning. I can’t imagine that the pool of applicants was such that only IJs would be hired, including two from the same city. I think IJs are generally eminently qualified to be Board Members, but to bring in all six from the immigration court? I’d like to think that the pool of applicants was more diverse than that. At both the courts and the BIA, we used to get applicants for judge positions from academia, the private sector, BIA, and other governmental entities. More recently, we also had experienced judges and adjudicators from various other administrative systems, the military, and state and local courts applying to be IJs. I find these recent BIA hires to be very unusual.

I do not know the process for selection, but suspect that Board Chairman David Neal* had minimal input into these hires. I find this scenario very odd.

Note: Since this interview took place, the Chairman of the BIA, David Neal, left his position and retired from the federal government. Before serving as Chairman of the BIA, David Neal held many other leadership positions at EOIR over many years, including the Vice-Chairman of the BIA and Chief Immigration Judge.

Asylumist: EOIR has made some moves to decertify the IJ union. Do you know why? What do you think about this?

Judge Keller: This happened after I left, but of course, it is easier to run an organization without people questioning you. Good managers recognize that you want opposing viewpoints. Maybe I am biased because I was a union officer, but I was also a manager longer than I was a union leader, and I’ve seen both sides. When I first learned that attorneys and judges were unionized, I was surprised, but I have seen the value of that. As a manager, the union is a great source of information. There are inherent conflicts between management and any union, but the union often has goals similar to those of management. The relationship between a union and management must be carefully developed, managed, and maintained. In the end, I felt it was worth the extra effort.

Now, I think management is more comfortable without public questions. I think decertifying is a mistake, particularly now when there are so many other changes that demand focus.

Asylumist: When he was Attorney General, Jeff Sessions gave a speech to EOIR where he claimed that most asylum cases were fake. This is also a line we frequently hear from the Trump Administration. What was your opinion of that speech?

Judge Keller: I think you may be referring to a press conference the Attorney General held at EOIR in October 2017. In a speech that day, the Attorney General said that the asylum system was “subject to rampant abuse and fraud.” That was disheartening. Fraud is not a factor in the large majority of cases. We know about fraud and we have been dealing with it probably since the inception of the immigration court. But it is not true that overwhelming numbers of asylum seekers are coming to immigration court trying to fraudulently obtain benefits. Whether the majority of their claims ultimately lack merit is a different question. But it is the very fact that we have a robust system to examine and decide asylum claims that makes our country a role model to others. I do not think statements like that made by the Attorney General are helpful to the court’s credibility. If IJs had that speech in mind in court, they would be labeled as biased, and bias is not a good thing for a judge or a court.

For the current Administration, I think there is an underlying skepticism about the extent to which the system is being manipulated. The process is indeed imperfect. But if you think that there are inappropriate “loopholes,” then we need to fix the law or the process. That is why comprehensive, or at least extensive, immigration reform has been discussed for so long. The Attorney General articulated some potential improvements he wanted to make, but also unfortunately focused in that speech on fraud and abuse, as if it was a problem greater than I believe it is.

When I would give my speech to new IJs, I would tell them that they would see the best and the worst of human nature in immigration court. As an IJ, you see persecutors and those who were persecuted; courageous individuals and liars. It is a huge responsibility. Therefore, you can’t go into court as an IJ and be thinking either that everyone is telling the truth, or that everyone is manipulating the process. You have to have an open, yet critical mind. It seems to me that Attorney General Sessions did not have a full appreciation for our particular role. This again brings us back to the idea of an Article I court, or some other solution to solidify the independence of immigration court adjudicators.

Asylumist: What do you think should be done about asylum-decision disparities? Does something need to be done?

Judge Keller: Yes. I think that asylum decision disparities should be evaluated by immigration court managers as they may be a sign of an underlying problem that may need to be addressed. However, I do not believe that they can or should be entirely eliminated.

If a judge is significantly out of line with his or her colleagues in the local court, it might be a red flag. Sometimes, simple things impact grant rates. For example, did the IJ miss some training in a particular area and is that affecting the grant rate? Is the judge assigned or does a court have a docket that by its nature (detained, criminal) will result in a higher or lower grant rate? Court managers should be alert to and manage those issues.

We’ve been looking at this issue for a long time. I remember talking about it with many EOIR leaders and judges over the last 10 years. But each case is different from the next and you don’t want decisions on asylum made according to mathematical formulas as if by computers. Decisions on such important human matters should be made by people who know the legal requirements, and can exercise sound judgment.

One way we thought about addressing seemingly significant disparities was temporarily assigning IJs with high or low grant rates to courts where the grant rates are different. Sometimes, the best way to evaluate your own opinions is to think through them with people who have different views. The hope was that judges would have the time and opportunity to reflect on their approach to asylum.

Once, former Director Osuna and I went to Chicago to visit the judges of the Seventh Circuit, which was at the time highly critical of our judges. We met with several of the Circuit Judges and talked about many things, including disparities in immigration court. We explained our approach to disparities, namely, addressing training needs, addressing any inappropriate conduct via discipline, and improving resources. One of the Circuit Judges mentioned that he was appreciative of our approach, and suspected that if anyone looked at it, there are probably similar disparities at the circuit court level too. As long as human beings are deciding immigration cases, there will always be some disparities. However, significant disparities should be evaluated and action taken only if the disparity is the result of something inappropriate, that is, something other than the proper exercise of independent legal judgment.

Asylumist: What is your hope for the future of EOIR?

Judge Keller: I hope EOIR can hold onto its core focus of hearing and deciding cases fairly and impartially. I also hope that the parties in the process know that we are listening to them. Parties in any court should feel that they’ve received a fair shake and a fair decision. They should understand the reasons why their cases were decided a certain way, and should not have to wait for years to get resolution. That is our reason for being – to deliver that service.

 

*****************************************************

Sorry, MaryBeth, but for many of the reasons you so cogently point out, the “EOIR we once knew” is gone forever. You have accurately described the “maliciously incompetent” politicized mis-management that has put EOIR “at war” with its sole Due Process mission, with migrants, particularly targeting the most vulnerable asylum applicants, and with the courageous lawyers trying to represent them in an intentionally hostile environment.

 

The good news is that the New Due Process Army will eventually win this war, and that EOIR will be abolished and replaced by an independent court system focused on Due Process and incorporating the values of fairness, scholarship, timeliness, respect, and teamwork.

 

PWS

 

10-16-19

 

 

 

 

 

JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”

 

New from JMHS | An Overview and Critique of US Immigration and Asylum Policies in the Trump Era
View this email in your browser
A publication of the Center for Migration Studies
Donald Kerwin, Executive Editor
John Hoeffner and Michele Pistone, Associate Editors

An Overview and Critique of US Immigration and Asylum Policies in the Trump Era

By Paul Wickham Schmidt (Georgetown Law)

This paper critiques US immigration and asylum policies from perspective of the author’s 46 years as a public servant. It also offers a taxonomy of the US immigration system by positing different categories of membership: full members of the “club” (US citizens); “associate members” (lawful permanent residents, refugees and asylees); “friends” (non-immigrants and holders of temporary status); and, persons outside the club (the undocumented). It describes the legal framework that applies to these distinct populations, as well as recent developments in federal law and policy that relate to them. It also identifies a series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and Constitutional rights that extend to non-citizens. It makes the following asylum reform proposals, relying (mostly) on existing laws designed to address situations of larger-scale migration:

  • The Department of Homeland Security (DHS) and, in particular, US Citizenship and Immigration Services (USCIS) should send far more Asylum Officers to conduct credible fear interviews at the border.
  • Law firms, pro bono attorneys, and charitable legal agencies should attempt to represent all arriving migrants before both the Asylum Office and the Immigration Courts.
  • USCIS Asylum Officers should be permitted to grant temporary withholding of removal under the Convention Against Torture (CAT) to applicants likely to face torture if returned to their countries of origin.
  • Immigration Judges should put the asylum claims of those granted CAT withholding on the “back burner” — thus keeping these cases from clogging the Immigration Courts — while working with the UNHCR and other counties in the Hemisphere on more durable solutions for those fleeing the Northern Triangle states of Central America.
  • Individuals found to have a “credible fear” should be released on minimal bonds and be allowed to move to locations where they will be represented by pro bono lawyers.
  • Asylum Officers should be vested with the authority to grant asylum in the first instance, thus keeping more asylum cases out of Immigration Court.
  • If the Administration wants to prioritize the cases of recent arrivals, it should do so without creating more docket reshuffling, inefficiencies, and longer backlogs

Download the PDF of the article

 

Read more JMHS articles at http://cmsny.org/jmhs/

Want to learn more about access to asylum on the US-Mexico border? Join the Center for Migration Studies for our annual Academic and Policy Symposium on October 17.

 

 

 

 

****************************************

My long-time friend Don Kerwin, Executive Director of CMS, has been a “Lt. General of the New Due Process Army” since long before there even was a “New Due Process Army” (“NDPA”). Talk about someone who has spent his entire career increasing human understanding and making the world a better place! Don is a great role model and example for newer members of the NDPA, proving that one can make a difference, as well as a living, in our world by doing great things and good works! Not surprisingly, Don’s career achievements and contributions bear great resemblance to those of our mutual friend, the late Juan Osuna.

 

So, when Don asked me to consider turning some of my past speeches about our immigration system and how it should work into an article to honor Juan, I couldn’t say no. But, I never would have gotten it “across the finish line” without Don’s inspiration, encouragement, editing, and significant substantive suggestions for improvement, as well as that of the talented peer reviewers and editorial staff of JMHS. Like most achievements in life, it truly was a “team effort” for which I thank all involved.

 

Those of you who might have attended my Boynton Society Lecture last Saturday, August 10, at the beautiful and inspiring Bjorklunden Campus of Lawrence University on the shores of Lake Michigan at Bailey’s Harbor, WI, will see that portions of this article were “reconverted” and incorporated into that speech.

 

Also, those who might have taken the class “American Immigration, a Cultural, Legal, and Anthropological Approach” at the Bjorklunden Seminar Series the previous week, co-taught by my friend Professor Jenn Esperanza of The Beloit College Anthropology Department, and me had the then-unpublished manuscript in their course materials, and will no doubt recognize many of the themes that Jenn and I stressed during that week.

 

Perhaps the only “comment that really mattered” was passed on to me by Don shortly after this article was released. It was from Juan’s wife, the also amazing and inspiring Wendy Young, President of Kids In Need of Defense (“KIND”):Juan would be truly honored.”

Donald M. Kerwin
Donald M. Kerwin
Executive Director
Center for Migration Studies
Juan P. Osuna
Juan P. Osuna (1963-2017)
Judge, Executive, Scholar, Teacher, Defender of Due Process
Wendy Young
Wendy Young
President, Kids In Need of Defense (“KIND”)
Me
Me

 

PWS

 

08-19-19

 

 

 

HAVING HER SAY: Recently Retired Judge Denise Slavin, Former President Of The NAIJ & Member Of “The Roundtable” Speaks Out To “The Asylumist,” Jason Dzubow, About Her Extraordinary Career Serving Due Process & American Justice! — “The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it.”

http://www.asylumist.com/2019/05/22/judge-denise-slavin-on-the-immigration-courts-the-national-association-of-immigration-judges-article-i-and-the-leadership-at-eoir/

fl-undocumented-minors 2 – Judge Denise Slavin, executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel

Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).

Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?

Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.

I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.

Judge Denise Slavin

I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.

I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.

I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.

Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?

Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.

As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.

I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.

Asylumist: What about lawyers who are bad actors, and who violate the rules?

Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.

Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?

Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.

As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.

Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.

Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?

Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.

As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.

Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?

Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.

Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.

The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.

In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.

Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.

Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?

Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.

As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.

Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.

The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.

These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.

Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.

The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.

Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.

Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?

Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.

The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.

Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.

Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.

Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.

The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.

Asylumist: How would it help if Immigration Courts became Article I courts?

Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.

There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.

If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.

Asylumist: Thank you for talking to me today.

Judge Slavin: Thank you

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We’ll said, Denise, my long-time friend and colleague!

As long as there is a DOJ and EOIR is part of it, there will be “Aimless Docket Reshuffling” and “Extreme Mission Failure” meaning that “guaranteeing fairness and Due Process for all” will be unachievable.

PWS

05-25-199

HON. DANA LEIGH MARKS REFLECTS ON AMAZING FOUR DECADES OF SERVICE TO PUBLIC & HUMANITY!

https://cmsny.org/publications/marks-40yr-career/

Hon. Dana Leigh Marks writes in the Center for Migration Studies Tribute to the late Juan P. Osuna:

On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its November 15th gathering, CMS will be posting and publishing a series of blogs, essays, talks, and papers on the values and issues to which Mr. Osuna devoted his professional life, and ultimately compiling them as part of a CMS special collection in his memory.


I found immigration law quite by accident in 1976, the summer between my second and third years of law school. I responded to an ad for a part-time law clerk. The small law office was near school, paid well, and had nice support staff, so I took the job, barely knowing what the daily work would be. The field of immigration law was so small at that time that my law school only offered one, semester-long immigration law course every other year. It was not offered in the one year I had left before graduation.  I have never taken an academic immigration law class, but rather learned my trade from generous practitioners who gave up their Saturdays once a month to teach free seminars to new practitioners. It was from that perspective that I developed a profound respect for immigration lawyers, so many of whom freely shared their knowledge in the hope of ensuring that quality legal services were offered to the immigrant community.

For me, the daily practice of immigration law was akin to love at first sight. It was the perfect mix of frequent client contact with fascinating people from all walks of life and all socioeconomic backgrounds that made me feel as if I was travelling the world; and a combination of social work and complex legal puzzles that intellectually intrigued me. As I became immersed in the field, I became totally hooked by the compelling stories behind my cases, as well as the complicated legal strategies that many cases required. At the time I began my career, I did not understand why immigration lawyers were generally ranked only slightly above ambulance chasers. My experience allowed me to interact with brilliant lawyers dedicated to helping their clients, often with little acknowledgement and meager remuneration.

When I began to practice and tried to explain the basics of immigration law to interested legal friends, it became clear to me that the statutory structure of this field of law was quite unique, but fairly sensibly built on general parameters of who would be a benefit to our country and thus should be allowed to find a way to legalize their status; and who were the bad actors who should not be allowed into the country or allowed to stay even if their initial entry had been legal. It struck a balance between family reunification and business and labor needs. There was even a category for industrious, pioneering individuals to come without sponsorship so long as they were able to support themselves financially. In short, it seemed to me to be a logical balance, with fair criteria to limit legal status to deserving, law-abiding people. Some of the hurdles that had to be overcome — for example, to test the labor market to protect US workers where one wanted to immigrate as an employee, or lengthy quotas that resulted in separation of families of lawful permanent residents (LPRs) — were clunky and cumbersome, but on the whole the system seemed to work fairly rationally.

While some aspects were frustrating and individual immigration officers sometimes seemed inflexible or even a bit irrational, I do not remember the legal community who helped immigrants being tormented by draconian twists and turns in the law on a daily basis, which is how it has seemed lately. When someone was in deportation proceedings, there was the possibility of showing that, after having lived in the United States for more than seven years as a person of good moral character, if one’s deportation would cause oneself or a qualifying US citizen (or LPR) spouse, parent, or child extreme hardship, one could qualify for suspension of removal and eventual permanent resident status. There was also the possibility of qualifying for withholding of deportation if one was more likely than not to suffer persecution if returned to one’s homeland if one had fled a communist country or certain specified geographic areas. Yes, the preference quotas could be problematic, but all in all, it seemed to me at that time that most people who wanted to regularize their status could carve out a reasonably achievable path towards their goal, while the bad actors who were sent home deserved that fate. Every so often there were sad cases of nice people who could not find a category that allowed them to stay, but somehow it just did not seem as harsh a result for so many people as it does lately.

The codification of the Refugee Act in 1980 ushered in a particularly exciting time. A large portion of my client base was from El Salvador, Guatemala, and Nicaragua, and the civil wars raging in the late 1970s were generating an influx of refugees. The stories I began to hear were exceedingly disturbing accounts of war and the cruelty which all too often accompanies it, but the horror was counterbalanced by the satisfaction of finding a way to protect people from further victimization by helping them secure safe haven in the United States. From an academic perspective, seeing how a statute evolved, through real-time interpretation and application, was a fascinating process — something many lawyers do not experience in their entire career. Then, to top it off, the Ninth Circuit set the stage to allow me to present oral argument in a case before the US Supreme Court in 1986. I am very proud that I, along with colleagues Kip Steinberg, Bill Hing, and Susan Lydon, were able to establish lasting precedent through our representation of Luz Marina Cardoza-Fonseca, making it clear that the use of the term “well-founded fear” was a significant change in the law and assuring that the adherence of the United States to the UN Protocol on Refugees was intended by Congress to guide our interpretation of US asylum law.[1]

Just as the briefs were being submitted, I learned that there was an opening for a judge at the immigration court in San Francisco, a location I had vowed never to leave. I struggled with the decision of whether or not to leave a practice with partners I truly loved, or to dive into a new adventure, in the hope that I could lead by example and prove that a former private practitioner could be viewed as an impartial and fair judge, respected by both the prosecution and defense bars. It was an exciting time at the immigration court because only a few years earlier, in 1983, the Executive Office for Immigration Review (EOIR) was created as a separate agency outside the Immigration and Naturalization Service (INS) as a component in the Department of Justice (DOJ). That step was a vital step forward, acknowledging the important distinction which must exist between the prosecutor and the judge in deportation hearings. I went for it and became a member of a corps of 68 immigration judges working for EOIR at that time.

I found the transition to the bench challenging. There was far less interaction and discussion among peers as to how thorny legal issues might be resolved. In addition, because of the need to remain distant from the lawyers who appeared before me, I was much lonelier than I had been in private practice. While I found the interactions in the courtroom just as fascinating as in the first days of my legal career, there was a part of me that was unfulfilled. The stories I heard were riveting and the ability to resolve a conflict in a fair way extremely satisfying. However, I soon realized just how large a part advocacy played in my personality and path to personal satisfaction. This was quite a dilemma for a neutral arbiter who was determined to show the world that a former private practitioner could give both the government and the respondent a fair day in court! I searched to find an appropriate outlet for that aspect of my character, and the answer came in the form of my volunteer work for the National Association of Immigration Judges (NAIJ).

The NAIJ was formed in 1979 as a professional association of immigration judges to promote independence and enhance the professionalism, dignity, and efficiency of the immigration courts.  Through my membership and eventually leadership at NAIJ, I was able to help my colleagues as a traditional labor union steward, as well as to educate the public about the important role played by the immigration court and the reality which exists behind the cloak of obscurity the DOJ favors. Many people, lawyers included, are surprised to learn that the DOJ insists on categorizing immigration judges as attorney employees, which gives rise to a host of problems for both the parties and for judges themselves.

While the creation of EOIR was a huge step forward, there was still considerable influence wielded by the INS. From courtrooms to management offices, ex parte communications occurred at all levels, and our relatively small system remained dwarfed by the behemoth immigration enforcement structure. My NAIJ colleagues and I worked hard to elevate the professionalism of our corps, to adhere to the American Bar Association (ABA) Model Code of Judicial Ethics, and to insulate our courts from political or ideological driven agendas, with the goal of assuring that all who appeared before us had a fair day in court. But we have always faced the headwinds of our classification as attorneys in an enforcement-oriented agency and the tension caused by enforcement goals that run counter to calm, dispassionate deliberation and decisional independence.

Despite the creation of EOIR and its early promise that we would benefit from enhanced equality with those who enforced our nation’s immigration laws, we remained “legal Cinderellas,” mistreated stepchildren who seemed to be doomed to endless hard work without adequate resources or recognition for our efforts. From the time I became an immigration judge, we have never received the resources we needed in a timely or well-studied manner, but instead for decades we have played catch-up, had to make do with less, and have faced constant pressure to do our work faster with no loss of quality. Immigration judges scored a legislative victory when our lobbying efforts codified the position of immigration judge in the mid-1990s, and again in 2003 when we succeeded, quite against the odds, to remain outside the enforcement umbrella of the Department of Homeland Security (DHS) when it was created. Those accomplishments were quite sweet, but unfortunately, they did not go far enough — a fact predicted by my NAIJ colleagues and me.

When I fast-forward to today, I see a substantive law which has spiraled out of control and a court system on the brink of implosion. The law has become so misshapen by unrelated, sometimes conflicting or overly repetitive congressional tweaks that it has become an almost unnavigable labyrinth, where many are lost on the way to their ultimate goal because of unanticipated interactions by the various incarnations of the statute. For example, the myriad criminal provisions interact illogically and conflict in ways that allow some clever lawyers to navigate a path for their clients, while pro se respondents become blocked from status with far less serious criminal histories because of an inability to parse nuances and wage creative legal battles.

And many provisions of the statute would surprise, or even shock, members of the public. Many people do not know that there is no such thing as “anchor babies” because US citizens cannot sponsor a parent until they are over 21 years of age, and even then, the parent’s years of unlawful presence in the United States often present a virtually insurmountable bar to legal status. Many do not realize that US citizen children are routinely de facto deportees when their parents are removed, or that parental rights can be terminated for responsible, loving parents who are held in immigration detention and thus are prevented from appearing in family court to exercise their parental rights. Nor does someone become a US citizen (or even lawful resident) just because of marriage to a US citizen. But perhaps the most sobering fact that is little known by the public is the fact that there is no statute of limitations for crimes under the immigration laws. Therefore, LPRs can be deported decades after a conviction for a relatively minor drug crime because there is no mechanism in the law which allows them to remain, despite deep roots in the community and sometimes being barely able to speak the language of the country of their birth.

I am deeply concerned that decisions on immigration legislation so often seem to be based on sound bites or knee-jerk reactions to individual horror stories rather than careful and unbiased analysis of documented facts and trends. I fear the public is deprived of the ability to form a well-reasoned opinion of what the law should provide because the rhetoric has become so heated and the facts so obscured. The immigration law has grown away from allowing decision-makers, especially immigration judges, to make carefully balanced decisions which weigh nuanced positive and negative considerations of someone’s situation. Instead, rigid, broad categories severely limit the ability of those of us who look an immigrant in the eye and see the courtroom filled with supporters from carefully tailoring a remedy, which can make our decisions inhumane and disproportionate. Such rigidity reflects poorly on our legacy as a country that welcomes immigrants and refugees and leads to results which can be cruel and not in the public’s interest.

In the rush to reduce the backlog that was decades in the making, our immigration courts are once again in the hot seat, and individual judges are being intensely pressured to push cases through quickly. Immigration judges are placed in the untenable position of having to answer to their boss because of their classification as DOJ attorneys who risk loss of their jobs if they do not follow instructions, and yet we judges are the ones who are thrown under the bus (and rightfully so) if the corner we cut to satisfy that unrealistic production demand ends up adversely impacting due process. That pressure is intense and the delicate balance is one that often must be struck in an instant through a courtroom ruling —  made all the more difficult because of the dire stakes in the cases before us. But, just to make it abundantly clear to immigration judges that productivity is paramount, last October our personnel evaluations were changed so that an immigration judge risks a less than satisfactory performance rating if s/he fails to complete 700 merits cases in a year. The DOJ’s focus and priority in making that change is not subtle at all, and the fact that our corps has recently expanded so fast that dozens, if not hundreds, of our current judges are still on probation, makes this shift an even more ominous threat to due process. The very integrity of the judicial process that the immigration courts are charged by statute to provide are compromised by actions such as this. Production quotas are anathema to dispassionate, case-by-case deliberation. One size does not fit all, and quantity can take a toll on quality. Perhaps most important, no judge should have his or her personal job security pitted against the due process concerns of the parties before them.

I know I am not alone in feeling the weight that this constellation of circumstances of an out-of-date law and political pressure on immigration judges has created. All around me, I see frustration, disillusionment, and even despair among immigration law practitioners who are also suffering the consequences that the speed-up of adjudications places on their ability to prepare fully their cases to the highest standards. I see many colleagues leaving the bench with that same mix of emotions, a sad note upon which to end one’s career. Yet I can completely relate to the need to leave these pressures behind. I have witnessed several judges leave the bench prematurely after very short terms in office because they felt these constraints prevented them from being able to do the job they signed up to perform.

It is supremely discouraging and, frankly, quite a challenge to remain behind in that climate. But as I write these reflections, I know I am not ready to leave quite yet. We must learn from history. We must do better for ourselves and the public we serve. Our American ideal of justice demands no less. When we canaries in the immigration courtrooms began to sing of our need for independence decades ago, we were seen as paranoid and accused of reacting to shadows in the mirrors of our cages. Finally now, we are seen as prescient by thousands of lawyers, judges, and legislators across the country, as reflected by proposals by the ABA, Federal Bar Association, National Association of Women Judges, Appleseed Foundation, and American Immigration Lawyers Association. There are signs that these calls are being heeded by lawmakers, although the legislative process seems both glacial and mercurial at best. The creation of an Article I Immigration Court is no longer a fringe view, but rather the solution to the persistent diminution of essential safeguards our system must have, clearly acknowledged by experts and stakeholders alike.

The challenges our nation faces as we struggle to reform our immigration law to meet modern needs are many, but a single solution for a dramatic step towards justice has become crystal clear: we must immediately create an Article I Immigration Court. We cannot afford to wait another 40 years to do it. Besides, I want to see it happen in my professional lifetime so that the chapter can be complete and the clock is ticking…

[1] See INS v. Cardoza-Fonseca, 480 US 421 (1987).


DISCLAIMER:  The author is President Emeritus of the National Association of Immigration Judges and a sitting judge in San Francisco, California.  The views expressed here do not necessarily represent the official position of the US Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

*******************************************

Here’s a somewhat abbreviated version by
Dana published as an op-ed in the Washington Post:

https://www.washingtonpost.com/opinions/im-an-immigration-judge-heres-how-we-can-fix-our-courts/2019/04/12/76afe914-5d3e-11e9-a00e-050dc7b82693_story.html

*********************************

Thanks, Dana, my friend and colleague, for the memories.

Because she successfully argued INS v. Cardoza-Fonseca before the Supremes, establishing the generous “well-founded fear” standard for asylum, I often refer to Dana as one of the “Founding Mothers” of U.S Asylum Law. *

One thing is for certain:  The current immigration mess can’t be resolved until we have an independent Article I U.S. Immigration Court.

Given the inappropriate, unethical, and frankly idiotic, regulatory proposals just made by the DOJ under Barr, guaranteed to further screw up appellate review at EOIR, the Article III Courts of Appeals are soon going to be bearing the brunt of more sloppy, unprofessional, biased decision-making by EOIR on a widespread, never before seen, scale. Unless the Article III’s completely tank on their oaths of office, there will have to be “massive pushback” that will eventually bring the removal system close to a halt until Congress does its job and restores Due Process under our Constitution.

Last time a similarly overt attack on Due Process in the appellate system happened under Ashcroft, the results at the Article III level weren’t pretty. But, guys like Barr are too dense, biased, and committed to the White Nationalist restrictionist program to do anything constructive.

Given the increased volume and the “malicious incompetence” of this Administration, as well as a much better prepared and even more talented and highly motivated private bar and NGO community (the “New Due Process Army”), the DOJ should continue to set new records for court losses and squandering of taxpayer funds on what would be deemed “frivolous litigation” if brought by any private party.

That’s not to say, however, that thousands of human beings won’t have their rights denied and be screwed over by the Trump Administration in the process. Some will die, some will be tortured, some will be maimed, some disfigured, some damaged for life.  That’s the human toll of the Trump scofflaws and their malicious  incompetence.

* HISTORICAL FOOTNOTE: At the time of Cardozoa-Fonseca, I was the Deputy General Counsel and then Acting General Counsel of the “Legacy INS.” I helped the Solicitor General develop the agency’s (ultimately losing) position and was present in Court the day of the oral argument sitting with the SG’s Office.

So, I was an “eyewitness to history” being made by Dana’s argument! We went on to become great friends and worked together on NAIJ issues and
“negotiating teams” during my time as an Immigration Judge.

PWS

04-15-19

 

GONZO’S WORLD: JUDICIAL REBELLION – Less Than One Year Into Gonzo’s Reign at The DOJ, One of America’s Most Conservative Judiciaries Seeks Protection From His Plans to Politicize The U.S Immigration Courts!

http://www.asylumist.com/2017/12/19/immigration-judges-revolt-against-trump-administration/

Jason “The Asylumist” Dzubow writes:

“In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts.” “Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before 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 authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.”

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“Extraordinary” to be sure! Folks, this isn’t the Ninth Circuit or even the Seventh, Second, or Fourth Circuit, all of which from time to time have “stood tall” for the Due Process rights of migrants.
For those unfamiliar with the process, the U.S. immigration Court is a “captive Administrative Court” functioning as part of the U.S. Department of Justice (“DOJ”) rather as an independent judiciary established under Article III or Article I of the U.S. Constitution.
For the past 17 years, the DOJ (with the exception of an ill-fated move by the Bush II Administration to hand out Immigration Judgeships as political rewards to their faithful) has gone out of its way to insure that those selected as Immigration Judges have a record demonstrating a “commitment to achieving agency priorities.” Translated from bureaucratese, that means that they understand the DHS immigration enforcement objectives and will not “rock the boat” by expanding or recognizing any new rights for migrants unless given permission to do so by the DOJ or DHS.
Not surprisingly, this has resulted in a judiciary where the overwhelming number of new U.S, immigration Judges appointed since 2000 — nearly 90% — come from “safe” government backgrounds, primarily from the DHS. Moreover, no “Appellate Immigration Judge” (or, “Board Member”) at the BIA has been appointed directly from outside the U.S. Government since the pre-21st Century “Schmidt Era” at the BIA. (For “EOIR trivia buffs,” the last two outside appointments to the BIA in 2000 were the late Hon. Juan P. Osuna and the Hon. Cecelia M. Expenoza who was exiled along with me and others during the “Ashcroft Purge” of 2003.)
So, we’re dealing with a basically conservative, government-oriented judiciary of  “non-boat rockers” who mostly achieved and retained their present judicial positions by “knowing and doing what the boss wanted” and making sure that any “deviations” were within limits that would be tolerated.
Yes, it’s OK to grant some asylum cases, particularly from Africa or the Middle East, over DHS objections; but “watch out” if you start granting lots of asylum to folks from the Northern Triangle or Mexico for whom the big “NOT WELCOME SIGN” has been hung out by the last three Administrations, or if you accept any new “particular social groups” which Administrations tend to view with fearful eyes as potentially “opening the floodgates” of protection to those who sorely need and can easily access it (in other words, to those whom the Geneva Refugee Convention actually was intended to protect.)
So, this isn’t a judiciary that normally would be expected to “buck the system.” Indeed, although the world has probably never been worse for refugees since World War II, the Immigration Courts seem to have inexplicably but dutifully reduced asylum grants since the clearly xenophobic, anti-refugee, and anti-asylum Trump Administration assumed office and Gonzo began delivering his anti-asylum, anti-lawyer, anti-immigrant rants.
Therefore, the threat to the limited judicial independence that U.S. Immigration Judges possess under the regulations (which haven’t prevented occasional “reassignments” for ideological or political reasons in the past) has to be presumed both real and immediate to prompt this group to take the risky action of publicly seeking protection. After all, Gonzo could potentially “retaliate” by further limiting the judges’ authority, further jacking up the already astronomically high stress levels under which the judges operate, or “reassigning” “unreliable” judges to more mundane or unattractive positions within the DOJ (sometimes known as “hallwalker” positions).
It’s definitely a further sign of an unhealthy judicial system on the verge of collapse. Before that happens, and 650,000+ additional cases spew forth into other parts of our justice system, it would be wise of Congress to make at least some immediate reforms to preserve independence and due process within the U.S. immigration Courts.
I also agree with Jason that attorneys and respondents are not the major problem driving uncontrolled backlogs in the U.S. immigration Courts. No, it’s all about “Aimless Docket Reshuffling” (“ADR”) generated by EOIR itself at the behest of its political handlers at the DOJ.
But, I don’t agree with Jason’s statement that EOIR has merely “misdiagnosed” the problem. No, EOIR and DOJ know exactly what the problem is, because they created it (egged on, no doubt by DHS and sometimes the White House).
Gonzo and EOIR are intentionally misrepresenting and misusing data to hide the truth about how screwed up the system has become because of the DOJ’s toxic combination of administrative incompetence with improper political and enforcement motives. In other words, DOJ is attempting to cover up its own “fraud, waste, and abuse” of public funds.
Even worse, and more reprehensible, Gonzo is attempting disingenuously to shift the blame to respondents and their overworked attorneys who are more often than not the actual victims of the scam being pulled off by the DOJ as part of the Trump Administration’s xenophobic, White Nationalist campaign to reduce the precious rights of asylum seekers and others. We can’t let him get away with it!
JUST SAY NO TO GONZO!
PWS
12-21-17

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

U.S. IMMIGRATION COURTS: Judge Lawrence O. “Burmanator” Burman (SOLELY In His NAIJ Officer Capacity) Gives Rare Peek Inside U.S. Immigration Courts’ Disaster Zone From A Sitting Trial Judge Who “Tells It Like It Is!”

Judge Burman appeared at a panel discussion at the Center for Immigration Studies (“CIS”). CIS Executive Director Mark Krikorian; Hon. Andrew Arthur, former U.S. Immigration Judge and CIS Resident Fellow; and former DOJ Civil Rights Division Official Hans von Spakovsky, currently Senior Legal Fellow at the Heritage Foundation were also on the panel entitled “Immigration Court Backlog Causes and Solutions” held at the National Press Club on Aug. 24, 2017.  Here’s a complete transcript furnished by CIS (with thanks to Nolan Rappaport who forwarded it to me).

Here’s the “meat” of Judge Burman’s remarks:

“First, the disclaimer, which is important so I don’t get fired. I’m speaking for the National Association of Immigration Judges, of which I am an elected officer. My opinions expressed will be my own opinions, informed by many discussions with our members in all parts of the country. I am not speaking on behalf of the Department of Justice, the Executive Office for Immigration Review, the chief judge, or anybody else in the government. That’s important.

What is the NAIJ, the National Association of Immigration Judges? We’re a strictly nonpartisan organization whose focus is fairness, due process, transparency for the public, and judicial independence. We’re opposed to interference by parties of both administrations with the proper and efficient administration of justice. We’ve had just as much trouble with Republican administrations as Democratic administrations.

It’s been my experience that the people at the top really don’t understand what we do, and consequently the decisions they make are not helpful. For example, the – well, let me backtrack a little bit and talk about our organization.

Immigration judges are the – are the basic trial judges that hear the cases. Above us is the Board of Immigration Appeals, who function as if they were an appellate court. We, since 1996, have been clearly designated as judges by Congress. We are in the statute. We have prescribed jurisdiction and powers. Congress even gave us contempt authority to be able to enforce our decisions. Unfortunately, no administration has seen fit to actually give us the contempt authority. They’ve never done the regulations. But it’s in the statute.

The Board of Immigration Appeals is not in the statute. It has no legal existence, really. It’s essentially an emanation of the attorney general’s limitless discretion over immigration law. The members of the Board of – Board of Immigration Appeals are – in some cases they’ve got some experience. Generally, they don’t have very much. They’re a combination of people who are well-respected in other parts of the Department of Justice and deserve a well-paid position. Very often they’re staff attorneys who have basically moved up to become board members, skipping the immigration judge process. Very few immigration judges have ever been made board members, and none of them were made board members because they had been immigration judges. If they were, it was largely a coincidence.

The administration of the Executive Office for Immigration Review in which we and the BIA are housed is basically an administrative agency. We are judges, but we don’t have a court. We operate in an administrative agency that’s a lot closer to the Department of Motor Vehicles than it is to a district court or even a bankruptcy court, an Article I type court.

Our supervisors – I’m not sure why judges need supervisors, but our supervisors are called assistant chief immigration judges. Some of them have some experience. Some of them have no experience not only as judges, but really as attorneys. They were staff attorneys working in the bowels of EOIR, and gradually became temporary board members, and then permanent board members.

Interestingly, when a Court of Appeals panel is short a judge, they bring up a district judge. EOIR used to do that, by bringing up an immigration judge to fill out a panel at the board. They don’t do that anymore. They appoint their staff attorneys as temporary board members, a fact that is very shocking when we tell it to federal judges. They can’t imagine that a panel would be one member short and they’d put their law clerk on the panel, but that’s what goes on.

The top three judges until recently – the chief judge and the two primary deputies – had no courtroom experience that I’m aware of. Two of them have gone on. Unfortunately, one of them has gone on to be a BIA member. The other retired.

Our direct supervisors are the assistant chief immigration judges. Some are in headquarters, and they generally have very little experience. Others are in the field, and they do have some experience – although, for example, the last two ACIJs – assistant chief immigration judges – who were appointed became judges in 2016. So they don’t have vast experience. Well, they may be fine people with other forms of experience, but this agency is not run by experienced judges, and I think it’s important to understand that.

There’s a severe misallocation of resources within EOIR. I think Congress probably has given us plenty of money, but we misuse it. In the past administration, the number of senior executive service – SES – officials has doubled. Maybe they needed some more administrative depth, although I doubt it. The assistant chief immigration judges are proliferating. I think there’s 22 of them now. These are people who may do some cases. Some of them do no cases. They generally don’t really move the ball when it comes to adjudicating cases. Somehow, the federal courts are able to function without all of these intermediaries and supervisory judges, and I think that we would function better without them as well.

To give you a few examples – I could give you thousands of examples, and if you want to stick around I’ll be happy to talk about it. Art was talking about the juvenile surge. I think it was approximately 50,000 juveniles came across the border. To appear to be tough, I guess, they were prioritized. The official line is, you know, we’re going to give them their asylum hearings immediately. I’m not sure what kind of asylum case that a 6-year-old might have, but we would hear the case and do it quickly, and then discourage people from coming to our country. But, in fact, what’s actually happened is the juvenile docket is basically a meet-and-greet. The judges are not – first of all, I’m not allowed to be a juvenile judge. The juvenile judges are carefully selected for people who get along well with children, I guess. (Laughter.) Really, what they do is they just – they see the kids periodically, and in the meantime the children are filing their asylum cases with the asylum office, where they’re applying for special immigrant juvenile status, various things. But judge time is being wasted on that.

Another example is the current surge. I have a really busy docket. Art was talking about cases being scheduled in 2021. The backlog for me is infinite. I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020. So they’re just piling up in the ether somewhere.

As busy as I am, they send me to the border, but these border details are politically oriented. First of all, we probably could be doing them by tele-video. But assuming that they want to do them in person, you would think that they would only send the number of judges that are really needed. But, in fact, on my last detail of 10 business days, two-week detail, two days I had no cases scheduled at all. And back home having two cases off the docket, which almost never happens – or two days off the docket, which almost never happens, would be useful because I could work on motions and decisions. But when I’m in Jena, Louisiana, I can’t really work on my regular stuff. So I’m just reading email and hanging out there.

The reason for that is because there’s been no attempt to comply with the attorney general’s request that we rush judges to the border with, at the same time, making sure that there’s enough work or not to send more judges than is really necessary to do the work. I assume the people that run our agency just want to make the attorney general happy, and they send as many judges to the border as possible.

One particularly bizarre example was in San Antonio. The San Antonio judges were doing a detail to one of the outlying detention facilities by tele-video. But they wanted to rush judges to the border, so they assigned a bunch of judges in the country that had their own dockets to take over that docket by tele-video on one week’s notice. Well, one week’s notice meant that the judges in San Antonio couldn’t reset cases. You’ve got to give at least 10 days’ notice of a hearing by regulation. So we had judges taken away from their regular dockets to do that; judges who normally would have done that who already were on the border – San Antonio is pretty closer to the border – didn’t have anything to do.

Now, those may be extreme cases, but this happens all too much, and it’s because of political interference. And like I say, it’s got nothing to do with party. We’ve had the same problem with Democratic and Republican administrations. It comes from political decisions animating the process and people who don’t really understand what they’re managing, just attempting to placate the guy on the top. So that’s basically what’s been happening.

Am I over my 10 minutes here?

MR. KRIKORIAN: Yeah. Well, I mean, you’re right at it. If you’ve got a couple more minutes, that’s fine.

JUDGE BURMAN: Well, let me just go over some possible suggestions.

Let judges be judges – immigration judges that control their own courts and their own dockets. We should be able to supervise our own law clerks and our own legal assistants, which currently we don’t. And the contempt authority we were given in 1996 should eventually – should finally get some regulations to implement it.

EOIR’s overhead needs to be reduced. There’s too many positions at headquarters and too few positions in the field. When EOIR was originally set up, the idea was that each judge would need three legal assistants to docket the cases and find the files and make copies and all that. At one point last year we were down to less than one legal assistant per judge in Arlington, where I am, and in Los Angeles it was even worse. When you do that, the judge is looking for files, the judge is making copies, the judge doesn’t have the evidence that’s been filed. There’s nothing more annoying than to start a hearing and to find that evidence was filed that I don’t have. The case has to be continued. I have to have a chance to find the evidence and review it.

It would be nice if our management were more experienced than they are, or at least have some more courtroom experience.

We need an electronic filing system like all the other courts have. Fortunately, that’s one thing that Acting Director McHenry has said is his top priority, and I think that he will take care of that.

The BIA is a problem. The BIA doesn’t have the kind of expertise that the federal courts would defer to. Consequently, I think a lot of the bad appellate law that Art was referring to is caused by the fact that the BIA really doesn’t have any respect in the federal court system. They’re not immigration experts. They want their Chevron deference, but they are not getting it. They’re not getting it from the Court of Appeals. They’re not getting it from the Supreme Court, either.

The BIA also remands way too many cases. When we make a decision, we send it up to the BIA. We don’t really care what they do. They could affirm us. They could reverse us. We don’t want to see it back. We’ve got too much stuff to see them back. And this happens all the time. If they remand the case, they don’t ever have to take credit for the decision that they make. I assume that’s why they’re doing it, to try to make us do it.

We need a proper judicial disciplinary system. Starting in 2006, which is where the backlog problem began, the attorney general first of all subjected us to annual appraisals, evaluations, which previously OPM had waived due to our judicial function. So that’s a waste of time. Judges were punished for the – for things that are not punishment. Judges were punished because a Court of Appeals would say that you made a mistake or he was rude or – it’s just crazy. Judges were punished or could be punished for granting – for not granting continuances. No judge was ever punished for granting a continuance. So it’s no surprise that, as I pointed out, continuances have been granted at a much greater level – in fact, too great a level. But when in doubt, we continue now because if we don’t do that we’re subject to punishment, and nobody really wants that.

And finally, the ultimate solution, I think, is an Article I court like the bankruptcy court – a specialized court, could be in the judicial branch, could be in the executive branch – to give us independence, to ensure that we have judges and appellate judges who are appointed in a transparent way, being vetted by the private bar, the government, and anybody else.

And I’m way over my 10 minutes, so I’ll be – I’ll be sure to babble on later if you want me to. Thank you.”

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Judge Arthur’s kind opening words about the late Juan Osuna were a nice touch. One of Juan’s great strengths as person, executive, judge, and teacher was his ability to maintain good friendships with and respect from folks with an assortment of ideas on immigration.

Judge Burman’s “no BS” insights are as timely as they are unusual. That’s because U.S. Immigration Judges are not encouraged to speak publicly and forthrightly about their jobs.

The Supervisory Judge and the EOIR Ethics Office must approve all public appearances by U.S. Immigration Judges including teaching and pro bono training. A precondition for receiving permission is that the judge adhere to the DOJ/EOIR “party line” and not say anything critical about the agency or colleagues. In other words, telling the truth is discouraged.

As a result, most Immigration Judges don’t bother to interact with the public except in their courtrooms. A small percentage of sitting judges do almost all of the outreach and public education for the Immigration Courts.

While EOIR Senior Executives and Supervisors often appear at “high profile events” or will agree to limited press interviews, they all too often have little if any grasp of what happens at the “retail level” in the Immigration Courts. Even when they do, they often appear to feel that their job security depends on making things sound much better than they really are or that progress is being made where actually regression is taking place.

In reality, the system functioned better in the 1990s than it does two decades later. Due Process protection for individuals — the sole mission of EOIR — has actually regressed in recent years as quality and fairness have taken a back seat to churning numbers, carrying out political priorities, not rocking the boat, and going along to get along. Such things are typical within government agency bureaucracies, but atypical among well-functioning court systems.

I once appeared on a panel with a U.S. District Judge. After hearing my elaborate, global disclaimer, he chuckled. Then he pointedly told the audience words to the effect of  “I’m here as a judge because you asked me, and I wanted to come. I didn’t tell the Chief Judge I was coming, and I wouldn’t dream of asking his or anyone else’s permission to speak my mind.”

I hope that everyone picked up Judge Burman’s point that “Aimless Docket Reshuffling” or “ADR” is still in full swing at EOIR. Cases are shuffled, moved around, taken off docket, and then restored to the docket to conceal that the backlog in Arlington goes out beyond the artificial “2020 limit” that Judge Burman has been instructed to use for “public consumption.” But there are other cases out there aimlessly “floating around the ether.” And, based on my experience, I’m relatively certain that many courts are worse than Arlington.

Judge Burman also makes another great  “inside baseball” point — too many unnecessary remands from the BIA. Up until the very ill-advised “Ashcroft Reforms” the BIA exercised de novo factfinding authority. This meant that when the BIA disagreed with the Immigration Judge’s disposition, on any ground, they could simply decide the case and enter a final administrative order for the winning party.

After Ashcroft stripped the BIA of factfinding  authority, nearly every case where the BIA disagrees with the lower court decision must be returned to the Immigration Court for further proceedings. Given the overloaded docket and lack of e-filing capability within EOIR, such routine remands can often take many months or even years. Sometimes, the file gets lost in the shuffle until one or both parties inquire about it.

The Immigration Courts are also burdened with useless administrative remands to check fingerprints in open court following BIA review. This function should be performed solely by DHS, whose Counsel can notify the Immigration Court in rare cases where the prints disclose previously unknown facts. In 13 years as an Immigration Judge, I had about 3 or 4 cases (out of thousands) where such “post hoc” prints checks revealed previously unknown material information. I would would have reopened any such case. So, the existing procedures are unnecessary and incredibly wasteful of limited judicial docket time.

I agree completely with Judge Burman that the deterioration of the Immigration Courts spans Administrations of both parties. Not surprisingly, I also agree with him that the only real solution to the Courts’ woes is an independent Article I Court. Sooner, rather than later!

PWS

09-03-17

 

 

 

 

 

 

PROFESSOR STEVE YALE-LOEHR’S MOVING TRIBUTE TO JUAN OSUNA: “A LIFE WELL-LIVED BUT CUT TOO SHORT!”

Juan Osuna: A Life Well-Lived But Cut Too Short

AILA Doc. No. 17082230 | Dated August 22, 2017
By Stephen Yale-Loehr*

Death felled a giant of immigration law and policy last week when Juan P. Osuna, age 54, died unexpectedly of an apparent heart attack. Juan worked for seventeen years as a senior immigration legal advisor in the Justice Department for both Democratic and Republican administrations. Juan had recently resigned as director of the Justice Department’s Executive Office for Immigration Review and was contemplating the next chapter of his remarkable life when he passed away.

Juan was an immigrant from Colombia, and his career is an immigrant success story. I hired Juan in 1988 while he was a law student to summarize federal immigration decisions for Interpreter Releases, a weekly immigration newsletter. When Juan graduated he joined the Interpreter Releases staff as assistant editor. After I left DC to practice immigration law and teach at Cornell, Juan became managing editor. We both worked with the legendary Maury Roberts, former chair of the Board of Immigration Appeals (BIA).

Juan’s government service began in 2000 as a BIA member. He rose rapidly through the ranks at the Justice Department, serving at various times as BIA board chair, Deputy Assistant Attorney General, and Associate Deputy Attorney General in charge of immigration policy and other issues. He was a frequent public speaker and testified several times before Congress about the immigration court system.

Read Steve’s full tribute at this link:

http://aila.org/about/announcements/in-memoriam/juan-osuna-a-life-well-lived-but-cut-too-short

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PWS

08-23-17

Continue reading PROFESSOR STEVE YALE-LOEHR’S MOVING TRIBUTE TO JUAN OSUNA: “A LIFE WELL-LIVED BUT CUT TOO SHORT!”

MEMORIAL SERVICE ARRANGEMENTS FOR JUAN OSUNA ANNOUNCED

From Hon. Jeffrey Chase:

“Hi Paul: Juan’s memorial service will be held on Sunday, Aug. 27 at noon at the National Funeral Home, 7482 Lee Highway, Falls Church, VA 22042. Friends and family are invited to celebrate Juan’s life. In lieu of flowers, donations can be made in Juan’s memory to the Huntley Meadows Park in Fairfax County or the Lost Dog & Cat Rescue Foundation in Arilington. (Per Wendy’s Facebook; just sent to me by Mark Cappello).”

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PWS

08-20-17

BREAKING: IN MEMORIAM: HON. JUAN P. OSUNA, LEGENDARY IMMIGRATION FIGURE, DIES SUDDENLY — Was Chairman of BIA, Director of EOIR, High-Ranking DOJ Executive, Editor, Professor — Will Be Remembered As Kind, Gentle, Scholarly, Dedicated!

I have just learned that my friend and former colleague Juan P. Osuna tragically died suddenly of a heart attack last night. Until May of this year, Juan was the Director of EOIR. But, he was much more than that to those of us in the immigration world.

I first met Juan when he was an Editor for Interpreter Releases, the leading weekly immigration newsletter, working with one of my mentors, the late legendary Maurice A. Roberts. Juan later succeeded Maury as Editor-In-Chief and rose to a major editorial position within the West Publishing legal empire. He was serving in that position when I recommended him for a position as an Appellate Immigration Judge/Board Member of the Board of Immigration Appeals during my tenure as BIA Chair. Juan was appointed to that position by Attorney General Janet Reno in 2000.

While serving together on the BIA, Juan and I often joined forces in seeking full due process and legal protections for migrants. Sometimes, our voices were heard together in dissent. In one of those cases, Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) we joined in finding that our colleagues in the majority were interpreting the Convention Against Torture (“CAT”) in an overly restrictive way. In another, Matter of Andazola, 23 I&N Dec. 219 (BIA 2003), we joined in finding that our colleagues in the majority had significantly undervalued the Immigration Judge’s careful findings of “exceptional and extremely unusual hardship” to U.S. citizen children.

Following my reassignment from the BIA to the Arlington Immigration Court, Juan became the Vice Chair and eventually the Chair of the BIA after the departure of Lori Scialabba. But, Juan’s meteoric rise through the DOJ hierarchy was by no means over. In 2009, Attorney General Eric Holder appointed Juan to the position of Deputy Assistant Attorney General for the Civil Division with responsibility for the Office of Immigration Litigation. Later, he was promoted to Associate Deputy Attorney General with responsibility for the Department’s entire “immigration portfolio.”

Not surprisingly, following the departure of EOIR Director Kevin Ohlson, Attorney General Eric Holder named Juan Director of EOIR. In that position, Juan shepherded the U.S. Immigration Courts through some of the most difficult times in EOIR history, involving astronomically increasing caseloads and resource shortages. Throughout all of it, Juan remained calm, cool, and collected.

He was a frequent public speaker and testified before Congress on a number of occasions. He was known for his honesty and “straight answers.” Indeed, in one memorable television interview, Juan confessed that the Immigration Court system was “broken.”

One of my most vivid recollections of Juan’s sensitivity and humanity was when he occasionally stopped by the Arlington Immigration Court to “find out what’s happening at the grass roots.” After lunching with or meeting the judges, Juan invariably went to the desk of each and every staff member to ask them how their jobs were going and to thank them for their dedicated service. He understood that “the ship goes nowhere without a good crew.”

Shortly before I retired, Juan called me up and said he wanted to come over for lunch. We shared some of our “old times” at the BIA, including the day I called to tell him that he was Attorney General Janet Reno’s choice for a Board Member. We also batted around some ideas for Immigration Court reform and enhancing due process.

Back in my chambers, I thought somewhat wistfully that it was too bad that we hadn’t had an opportunity to talk more since my departure from the BIA. Little did I suspect that would be the last time I saw Juan. At the time of his death, he was an Adjunct Professor at Georgetown Law, where I am also on the adjunct faculty. Ironically, Juan took over the “Refugee Law and Policy” course that I taught from 2012-14.

Juan will always be remembered as a gentleman, a scholar, and an executive who appreciated the role that “ordinary folks” — be they migrants, staff, interpreters, or guards, — play in building and sustaining a successful justice system. He will be missed as a friend and a leader in the immigration world.

My thoughts and prayers go out to Juan’s wife, Wendy Young, President of Kids In Need of Defense (“KIND”), and the rest of Juan’s family and many friends. Rest in peace, my friend, colleague, and champion of due process for all!

PWS

08-16-17

 

 

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