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

 

 

 

Another Installment In The Schmidt Making America Really Great Series: “Refugees And Due Process Make America Really Great” — Read My Speech From Last Night’s “Refugee Ball”

REFUGEES AND DUE PROCESS MAKE AMERICA REALLY GREAT

 

Remarks by Paul Wickham Schmidt,

Retired United States Immigration Judge

 

The Refugee Ball

 

Sixth & I Synagogue 600 I Street, N.W. Washington, DC 20001

Tuesday, January 17, 2017 from 5:00 to 9:00 PM

 

Good evening, everyone. I’m honored to be here. Lets have a big round of applause for Jason Dzubow and his staff for coming up with the idea and putting this together!

As you can probably tell, it was a battle getting into my “Jones Day Spring Prom Era Tux” tonight. As I walked out the door, my wife Cathy said: “Are you actually going to be able to breathe, let alone speak, in that thing?”

As a “regular” at the Arlington Immigration Court, Jason obviously is quite familiar with my habits. I noted that on the advance program he took the extreme precaution of not only putting me in a “10-minute slot” near the end of the program, but also adding in parentheses in big bold letters “10 minutes max.” So, I get the picture, Jason. I’m going to briefly address two things that make America great: refugees and due process.

I’m pleased to back in the old ‘hood, although it’s hard to recognize. For about twelve years in the 1970s and 1980s I worked in the General Counsel’s Office of the “Legacy INS” in the famous Chester Arthur Building – the only monument in Washington to our great 21st President –at 425 Eye St., NW, just down the street. And, one of my most memorable accomplishments during that time was being part of the “team” that helped the Refugee Act of 1980 become law. It was a chance to make a positive difference in America’s future, indeed in the world’s future, while coming into contact with some of the finest intellects in the business: David Martin, Alex Aleinikoff, Doris Meissner, the late Jerry Tinker, and the late Jack Perkins come immediately to mind. So, I have what you might call a “vested interest” in U.S. refugee and asylum system.

I worked with refugees and their cases almost every workday for more than 21 years during my tenure as a trial and appellate judge with the United States Immigration Courts. And, I’ll admit that on many of my “off days” the challenges, stories, human drama, triumph, and trauma of refugees and refugee law bounced around in my head, much to the dismay of my wonderful wife, Cathy.

Although I have the greatest respect and admiration for the inspiring life stories of refugees and their contributions to the United States, I have never, for even one second, wanted to be a refugee. Like all of the speakers tonight, I see refugees as a huge asset to our country. It says something about us as a nation that so many great people from all over the world want to make this their home and to contribute their talents, some of which were on display here tonight, to the greatness of America. So, to all of you out there who came as refugees or asylees, thank you for coming, for your service, and for your dedication to making our great country even greater.

The other topic I want to address briefly, that is near and dear to me personally, is the overriding importance of due process in our refugee and asylum system. Each of you who came as a refugee or asylee is here because an adjudicator at some level of our system carefully and fairly gave you a chance to state your claim, listened to and reviewed the support you provided for your claim, and made a favorable decision in your case.

For some of you, that decision was made by a DHS Refugee Officer or an Asylum Officer. Others of you had to rely on different levels of our system – a U.S. Immigration Judge, the Board of Immigration Appeals, or in some cases, a U.S. Court of Appeals to have your status granted. In all of these instances you received something very precious under our Constitution: due process of law.

Unfortunately, there currently is a “due process crisis” in our overloaded Immigration Court System.   With over one-half million pending cases and waiting times of many years in some courts for final hearings to be held, our Immigration Court System is under intense pressure.

Sometimes, that results in approaches that generally have a favorable impact for individuals seeking protection.   For example, grants of Temporary Protected Status and work authorization take many cases off the Immigration Court docket and legislation such as NACARA for Central Americans or HIRIFA for Haitians permanently resolves many cases favorably at the DHS without requiring a full-blown asylum hearing before an U.S. Immigration Judge.

But, when backlogs build up and enforcement pressures mount on our Government, less benign approaches and suggestions sometimes come to the fore. Adjudicators can be pressured to do counterproductive things like decide more cases in less time, limit evidence to shorten hearings, and make “blanket denials” based on supposed improvements in country conditions.

Other times, placing more individuals in civil immigration detention is looked at as a way of both expediting case processing and actively discouraging individuals from coming to the United States and making claims for refuge under our laws in the first place. Or, moving cases though the system so quickly that applicants can’t find pro bono lawyers to represent them is sometimes incorrectly viewed as an acceptable method for shortening adjudication times, thereby reducing backlogs.

Another method far too often used for discouraging asylum claims and inhibiting due process is placing asylum applicants in DHS Detention Centers, often privately operated, with “imbedded” Immigration Courts in obscure out of the way locations like Dilley, Texas and Lumpkin, Georgia where access to pro bono attorneys, family members, and other sources of support is severely limited or nonexistent.

When these things happen, due process suffers. So, while I’m always hoping for the best, it is critical for all of us in this room to zealously protect the due process rights of all migrants and insist on full due process being maintained, and, ideally, even enhanced. This includes both supporting individuals in the system by helping them obtain effective legal representation and, where appropriate, vigorously asserting the due process rights of refugees, asylum seekers, and other migrants in the Article III Federal Courts.

Only by insisting on due process for those already in the system will we be able to insure a fair and effective system for future refugees. And, welcoming and fairly treating future refugees is a key to making and keeping America great.

So, that’s my message: due process can’t be taken for granted! It must be nurtured, protected, expanded, and vigorously and proudly asserted! Thanks for listening, good luck, do great things, and due process forever!

(Rev. 01/18/17)