"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Was Merrick Garland AWOL during required training on legal and judicial ethics? Judging from how he runs “America’s worst court system” — where due process, fundamental fairness, and best practices go to die — we have to assume that that he thinks he has “risen above” the need to comply with ethical requirements! PHOTO: Wikipedia Commons
These are very graphic examples of Garland’s inexcusable failure to end the “haste makes waste, anything goes culture” @ EOIR — encouraged by Sessions and Barr but completely unaddressed by Garland!And, I guarantee this is just “the tip of the iceberg.” For every one of these outrageous errors caught by a Circuit, dozens are probably wrongfully denied relief and illegally ordered deported in Garland’s dysfunctional, due process denying, deportation assembly line!
But, beyond that, Garland’s failure to “clean house” at EOIR and hire qualified, expert, professional leaders, judges, and administrators is an ongoing national disgrace — one that is eating away the foundations of our justice system.
Here’s a “real life snapshot” from my “Morning Mailbox:”
I got 15 individual hearing notices in two days for October 2022. Right now the firm has 47 [Individual Hearings] in October for 4 attorneys to handle. A lot of the hearings we never even got notice for, we just randomly have been checking the portal and that’s how we are finding out. Once we do find out we are always about a month or less away from the hearing date. We are going to try to file motions to continue but who really knows what they are going to do about it. Also, I had an [Individual Hearing] with Judge _________ the other day, and he said that Respondents’ attorneys are having a hard time. He said he had a master that he had to schedule for an [Individual Hearing], and the Respondent’s counsel told him if he scheduled her Individual Hearing within the next 6 months she was going to commit suicide. He seemed really concerned for the attorneys. Hopefully this calms down, because the hearings are piling on and quite honestly no one has the manpower to do all of the [Individual Hearings] in especially such short notice.
This is insane, inexcusable, and totally uncalled for! Aimless Docket Reshuffling gone wild!
In what real “court” system is a judge “required” to schedule a hearing that he knows is beyond the ability of the lawyer to handle at the appointed time. That’s an ethical violation! Who is behind this mess? If the “buck stops at the top,” why isn’t Garland under under investigation for “operating a system” that clearly violates judicial and professional ethics?
Q: What happens when comedy 🎭morphs into tragedy☠️?
Gary Sampliner is a director of JAMAAT (Jews and Muslims and Allies Acting Together) and a member of the Bethesda Jewish Congregation, which with Bradley Hills Presbyterian Church and the Maqaame Ibrahim Islamic Center is working to assist arriving migrants and asylum seekers. JAMAAT is a member organization of the Interfaith Immigration Coalition.
Gratitude might not be the reaction Texas Gov. Greg Abbott (R) was expecting when he began sending frequent busloads of migrants and asylum seekers to the greater D.C. area. But gratitude, warmth and a renewed sense of collective responsibility are the responses I have seen as D.C.-area organizations and faith communities (and, most recently, its government) have stepped up to welcome and support newcomers.
With Abbott’s bus initiative — a costly venture likely to be funded in large part by Texas taxpayers — we’ve seen an apparent strategy to inflict maximum pain on our region and score political points, using vulnerable people as weapons aimed at pressuring the Biden administration into taking more drastic measures to seal our nation’s southern border.
But, despite the deeply cynical nature of Abbott’s plans, we might actually owe him a debt of gratitude.
We know that providing transportation is one part of establishing a dignified reception system for people seeking safety, and we’ve witnessed repeatedly the long-term payoffs to our communities and nation when we offer support to those in need of refuge.
The D.C. area has been generous in welcoming migrants fleeing persecution. With community and government support, Virginia has been the third-highest recipient of recent Afghan refugees to the United States, and Maryland is not far behind. My own synagogue and the church and mosque with whom we share our building have been active in helping welcome Afghan refugees to the area since 2017. The Jewish-Muslim community organization I help to direct has been working to get other interfaith partnerships involved in similar efforts.
Afghan arrivals are not the only ones receiving a warm reception. With the help of some heroic community and faith groups — many of which are part of the Migrant Solidarity Mutual Aid Network — our area has mobilized quickly to welcome the migrants being bused here from the southern border. These tremendous efforts have demonstrated, yet again, the area’s commitment to extending welcome and hospitality to those in need.
As with the public-private, multisector approach used in Afghan and other refugee resettlements, we need all hands on deck to welcome new arrivals to the area. We need as many available resources as possible, including the support of local, state and federal governments, faith groups, nonprofit organizations and community volunteers.
It is heartening to see D.C. Mayor Muriel E. Bowser (D) now stepping up to the challenge and opportunity posed by the arriving migrants. On Thursday, she announced the establishment of an Office of Migrant Services, with an initial allocation of $10 million, to meet the needs of the migrants who are moving elsewhere or intending to reside here. As an official “Welcoming City,” D.C. government assistance should be an essential element of the response to welcome migrants to our region — especially considering that, as a majority of the D.C. Council has told Bowser, D.C. is expected to have a surplus of around $500 million in fiscal 2022 — even though D.C. has good reason to request Federal Emergency Management Agency reimbursement to help satisfy the overriding federal responsibility over immigration matters.
But the need for private and community support for the incoming migrants remains critical for their successful integration into our community. Though my organizations’ work with the Afghan community continues, we’ve begun to provide various types of assistance to the newcomers being bused here. We are pleased to see and strongly encourage fellow faith communities and groups around the area to join us in this important work of welcome and are pleased when they do. This is an opportunity to demonstrate the best of who we are in the face of unprecedented levels of forced dislocations worldwide.
The bottom line is this: If we want to continue to live up to our values, many more of us need to step up to assist the new arrivals. And if we can meet this challenge, we will set an example for the rest of our country to follow.
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One frequent mistake is to view this situation as “an emergency” or “temporary.” That leads to “short-term thinking” — throw some money at it, energize volunteers, and “hold the fort” until the so-called “crisis” subsides.
Problem is, money runs out, volunteers burn out or get called to pitch in on other issues, and the media turns its attention elsewhere. But, refugees and asylees will continue to come.
And, the better we treat our new arrivals, the more who will develop ties here and choose the DMV as their U.S. residence. While nativists like Abbott view this as a “crisis” and an “invasion,” I agree with Gary that it’s a great opportunity for us and these migrants. We’ve lived the DMV area for almost 50 years. Most of the growth and prosperity over that time can be linked, directly or indirectly, to recent immigrants, both with and without documents!
In many ways, the situations in other countries that drive migration are worse than at any time since the end of the Cold War. And, it’s not getting better, at least in the short run. Meanwhile, our legal refugee and asylum systems remain a shambles, despite the Biden Administration’s promise to do better than the Trump White Nationalist kakistocracy.
For example, oneof the largest, probably the largest, flow of refugees in the Western Hemisphere is from Venezuela. And, contrary to the restrictionist blather, the vast majority of the six million who have fled Venezuela are NOT in the U.S. Colombia has received at least 1.8 million, where the U.S. has fewer than 350,000.
But, there is no immediate prospect that most Venezuelans will return or stop coming. Nor is there any chance that countries like Colombia are going to “up their share” so that the U.S. can take fewer!
Yet, the Biden Administration has failed to provide consistent, helpful, guidance on Venezuelan asylum at either DHS or DOJ. An improved and better BIA, with expert judges committed to a proper application of asylum law, should have issued appropriate precedents that could have been a basis for getting tens of thousands of grantable Venezuelan asylum cases off the endless backlogs and on the road to green cards.
But, Garland continues to mismanage asylum law at all levels. He employs unfocused politicos, unqualified Trump-era bureaucrats, and judges who got or retained their jobs under Sessions or Barr because of their actual or perceived willingness to unlawfully deny asylum. Nor has DHS implemented any semblance of the necessary, realistic, robust overseas refugee program for Venezuela, Haiti, and the Northern Triangle!
Mayorkas has “beefed up” the TPS program for Venezuela. But, by its own terms, that’s not a long-term solution. They extended TPS for Haitians while denying recent arrivals their legal rights to seek asylum and inexplicably returning thousands to the dangerous, failed state without any process at all. It’s a farce — but one with ugly racial overtones and a horrible message! To say that Biden’s refugee and asylum programs are screwed up would be an understatement!
Refugee flows, including asylum, are both inevitable and continuing. They are an important, beneficial, and essential component of legal immigration.
Those seeking legal refuge can be forced largely into the underground system, as Trump tried to do; largely admitted in an orderly legal fashion as progressive experts urge; or there can be a haphazard “combination of the two” which is what we have now!
Undoubtedly, refugees and asylees are good from America. They will get jobs, make contributions, and have families of U.S. citizens. The tax base and U.S. institutions will benefit.But, that’s the “long view.”
In the short run, migrants need food, affordable housing, orientation, and education. Kids will need more teachers with specialized skills in a time of nationwide teacher shortage and politicized demonization of educators and administrators. School populations will increase. That takes money. Taxpayers and the politicians answerable to them are notoriously focused on the now, rather than the whenever.
So, the pressing issue is how to institutionalize, regularize, and fund successful migrant resettlement. In other words, how do we get from here to there in the absence of effective government leadership, planning, and funding – often on multiple levels?
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NYT: Under a pandemic-driven public health rule, migrants have been turned away at the U.S. border 1.7 million times since Mr. Biden took office, a figure that includes some people who have attempted to cross multiple times. But the United States has allowed others to stay temporarily for a range of reasons, including because Mexico or their own countries will not take them back. Nearly 300,000 of those who have been allowed in — including many heads of families — have been outfitted with tracking devices so that Immigration and Customs Enforcement can keep tabs on their whereabouts while they await their day in court. See also ‘Tale of two borders’: Mexicans not seen at busy crossings.
WaPo: The oldest recipients were in their early 30s when DACA began and are in their early 40s today. At the same time, fewer people turning 16 can meet a requirement to have been in the United States continuously since June 2007.
Reuters: The agency found that since late last year, 57 unaccompanied migrant kids had been reported missing in Houston, the HHS official, and two additional sources familiar with the situation, said. Included in the count were nine kids who ran away from HHS shelters in the Houston area, the official said.
WaPo: The exodus from Venezuela has grown to the point that its refugee numbers are now close to those displaced by the conflict in Ukraine — but the European crisis has drawn disproportionately more financial support, according to an advocacy group. See also Ecuador begins regularization process for thousands of Venezuelan migrants.
CA: California would be the first U.S. state to ban solitary confinement in private civil detention centers used for immigrants who are under threat of deportation, under a bill that advanced Tuesday.
Law 360: Federal prosecutors accused a Texas contractor of misappropriating hundreds of thousands of dollars worth of funding from the U.S. Department of Health and Human Services that was intended to be used for housing unaccompanied migrant children.
Law 360: The Biden administration will focus on bringing over Afghans who have U.S. families in the next stage of its effort to relocate those fearing for their lives under the Taliban’s rule, a State Department spokesperson said Thursday.
Law 360: The American Samoa government told the U.S. Supreme Court Monday that imposing birthright citizenship on American Samoans would deprive them of the right to decide their status, going against American Samoa-born individuals who earlier appealed to the high court.
Law 360: The First Circuit was bound Wednesday to stand by an immigration appeals board decision that ordered a Guatemalan man removed from the country despite the hardship it would cause his children, saying the call was in line with the “hard-hearted” and “stringent statutory requirement.”
Law 360: The Board of Immigration Appeals was wrong when it refused to consider a psychological report explaining why an El Salvadoran teen seeking asylum had trouble remembering the details of sexual assaults that occurred when she was a child, a split First Circuit has ruled.
LexisNexis: [U]nder the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection…The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.
LexisNexis: This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause.
LexisNexis: [T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.”
Law 360: The Ninth Circuit revived a Sikh man’s second attempt at obtaining asylum in the United States, finding that the Board of Immigration Appeals should have considered new information he presented in his later bid about the dangers of living as a Sikh in India.
Law 360: A Ninth Circuit panel on Monday ruled that Arizona’s drug possession laws can support federal immigration removal orders despite banning a broader list of substances than the federal drug schedule because the Grand Canyon State requires juries to determine the specific drug type involved in each conviction.
Law 360: The U.S. Department of Health and Human Services’ Office of Refugee Resettlement must notify young detained migrants and their counsel when it decides against releasing them to their parents or relatives and provide reasons for withholding release, a California federal judge has ordered.
Law 360: U.S. Immigration and Custom Enforcement has agreed to pay $4.8 million to resolve a class action claiming the government routinely failed to consider safer options before transferring teens to adult detention facilities after they turned 18, according to a proposed settlement filed Thursday in D.C. federal court.
Law 360: Immigrants suing New York’s Suffolk County and its sheriff’s office over their practice of holding people past their release date by request of U.S. Immigration and Customs Enforcement have won over a federal judge, who recommended their proposed class be certified.
Law 360: Two California chapters of a national Muslim civil liberties group and 159 Iranian diversity visa applicants have sued the Biden administration in federal court, claiming they have been “skipped over” and “unreasonably delayed” in the processing of their applications “for no explicable reason.”
USCIS: U.S. Citizenship and Immigration Services (USCIS) today published a Federal Register notice for the extension and expansion of eligibility for Deferred Enforced Departure (DED) for Liberians and explaining how eligible Liberians may apply for Employment Authorization Documents (EADs).
USCIS: U.S. Citizenship and Immigration Services (USCIS) is resuming operations under the Cuban Family Reunification Parole (CFRP) program, beginning with pending CFRP program applications.
USCIS: U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to reorganize and expand on existing guidance related to special immigrant and nonimmigrant religious workers.
EOIR: The Executive Office for Immigration Review (EOIR) today announced it will open a new immigration court in Sterling, Virginia, on Oct. 3, 2022. The Sterling Immigration Court will include 19 immigration judges. It will be the second immigration court to open in the National Capital Region this calendar year.
CAIR: Peter Alfredson from CAIR Coalition’s Immigration Impact Lab is seeking examples of problems related to how IJs are using boilerplate addenda/statements of law in oral decisions. Please contact him at peter@caircoalition.org with any specific issues you’ve experienced with the addenda, including, but not limited to: IJs referring to the addenda but never actually providing them; addenda misrepresenting the law in a prejudicial way; and IJs using the addenda and engaging in little/no actual legal analysis in a particular case.
NIJC: If you have examples of prosecutorial discretion you are willing to share (anonymously to your client if you wish), please fill out this form: Amicus Stories. Also: if you are a nonprofit and would be interested in signing on as an amici, please fill out this form: Joining Amici. In particular, we are thinking of cases that fit into the following categories: Grants or Denials under the Mayorkas Memo of PD for the purpose of seeking some non-EOIR benefit, such as: Eligibility for U visa, Eligibility for adjustment of status, Eligibility for SIJS. Grants or Denials under the Mayorkas Memo of PD based on particular humanitarian or unique considerations: Military service (self or family), Undercover or confidential informant situation, Family separation. DACA / DREAMers, MPP, Old convictions / rehabilitation. Stories (even if they predate the Mayorkas Memo) involving: Circumstances where individuals who would have been subject to 236(c) were not placed in removal proceedings, and the person was able to pursue relief with USCIS because no proceedings were ever initiated. Circumstances where individuals who could have been subject to reinstatement of a prior removal order did not have that order reinstated and were able to do things like pursue a U or T visa before USCIS, without being detained or placed in removal proceedings.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Lack of analysis, prejudged cases, overt anti-immigrant bias, and absence of “applied” immigration, human rights, and due process expertise is an endemic problem at EOIR. Using canned law (some of it flat out wrong or at least questionable) in “addenda” appears to be another “built to fail,” due process denying, haste make waste “gimmick.”
Lousy analysis and basic mistakes appear in Federal Court rebukes of EOIR highlighted here, on LexisNexis, on ImmigrationProfblog, and other resources on an almost daily basis. And, we by no means are able to catalogue all of the abject failures being cranked out by Garland’s EOIR — many of which would embarrass an L-1! Why not get 1) better judges, 2) a better BIA, and 3) better training?
Garland has been “nibbling around the edges,” at best. A few enlightened appointments of well-qualified “practical scholars” to newly created judgeships in a failed system of some 600 judges nationwide with a fatally flawed “Trump holdover” appellate body, the BIA, won’t cut it.
EOIR needs new, exceptionally well-qualified, dynamic, due process oriented expert leadership and a new BIA that will begin solving the problems rather than aggravating them and shuffling them on to the Circuits. Hopefully, the CAIR effort will lead to “dialing up the pressure” on Garland and his lieutenants to “get their collective heads out of the clouds and kick some tail at what (despite the efforts of Article III right wing hacks like Judge Aileen “Loose” Cannon to claim the title) remains “America’s worst court system” — where due process, fundamental fairness, legal scholarship, and best practices “go to die.” 🪦
I don’t dispute that America’s judicial system is failing from top to bottom. But, unlike theArticle IIIIs, where there are long-term structural issues with constitutional roots that make “quick fixes” impossible, EOIR is “wholly owned and operated” by the Executive.
Systemic institutional reforms like replacement or reassignment of unqualified judicial and administrative personnel could, and should, have been a top priority for the Biden Administration. But, instead the tone deaf “it’s only immigration not a real priority” approach by Garland has allowed life-threatening legal malfeasance at EOIR to fester, spread, and undermine confidence in the ability of our democracy to survive.
News flash for Garland:EOIR is where the “rubber meets the road” for American justice. You continue to ignore and downplay the need for bold decisive corrective action at your own peril —and our nation’s!
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Raed Gonzalez ESQUIRE Chairman, Gonzalez Olivieri LLP Houston, TX PHOTO: best lawyers.com
From Dan:
Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)
“[T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478, 1486 (2021). That did not occur in this case, as the Notices to Appear served on Parada and her daughter did not contain the time or date for their removal proceedings. Thus, because “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule,” Pereira, 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)), the deficient Notices to Appear received by the Paradas did not stop the clock for the Paradas. … [O]ne of two keys must fit before the stop-time rule can be unlocked: service of a valid Notice to Appear or commission of an enumerated offense. The latter has not occurred here as no one has asserted that either of the Paradas has committed such an offense. And we have already concluded that the former has not occurred because the Notices to Appear served on the Paradas lacked the time and date of their hearing. Thus, the stop-time-rule box remained locked, the Paradas’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical-presence requirement for cancellation of removal. In so concluding, we agree with the Ninth Circuit [emphasis added] which also held that “[b]y its terms . . . the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither.” Quebrado Cantor, 17 F.4th at 871. … To return to the analogy above, when Congress provided the two exceptions to the physical-presence requirement, it created all the keys that would fit. It did not additionally create a skeleton key that could fit when convenient. To conclude otherwise “would turn this principle on its head, using the existence of two exceptions to authorize a third very specific exception.” Quebrado Cantor, 17 F.4th at 874. Instead, “the ‘proper inference’ is that Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident’s period of continuous physical presence and settled, in its legislative judgment, on only two.” Id. (quoting Johnson, 529 U.S. at 58). Lacking either here, the BIA committed a legal error in concluding otherwise and finding that the Paradas did not satisfy the physical-presence requirement to be eligible for cancellation of removal. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … IT IS FURTHER ORDERED that respondent pay to petitioners the costs on appeal [emphasis added] to be taxed by the Clerk of this Court.”
[Yet another victory for Superlitigator Raed Gonzalez! Who else could persuade CA5 to agree with CA9, and get an award of costs?]
Due Process Superheroes like Houston’s Raed Gonzalez are standing up for the rights of EVERYONE in America! PHOTO: Creative Commons
Kudos to Raed for “taking it to” America’s worst “courts” in America’s most “immigrant-unfriendly” Circuit!
Tons of “rotten tomatoes” to Garland for his horrible mismanagement of EOIR, OIL, and the legal aspects of immigration policy at DOJ!
Rotten Tomatoes Garland & his lieutenants deserve appropriate recognition for failing to bring long-overdue reforms to America’s most dysfunctional “parody of a court system” — EOIR! PHOTO: Creative Commmons
Immigration expert Professor Richard Boswell of UC Hastings College of Law asks: “Can someone explain why the government has been so obstinate on these cases?I like the fee award but I doubt that it has much impact on their behavior.”
Professor Richard Boswell UC Hastings Law PHOTO: LinkedIn Professor Boswell asks the right question. So far, “Team Garland” has no answers!
I wish I knew, my friend, I wish I knew! There is no rational excuse for Garland’s abject failure to: put EOIR and OIL under progressive expert leadership committed to human rights and due process; replace the many weak “Trump holdover appointees” at the BIA with expert real, professionally competent judges; weed out more of the “deadwood” on the immigration bench; bring in qualified experts as EOIR Judges who could potentially create an existential improvement in the composition, performance, and procedures of the entire Federal Judiciary that would go even beyond the essential task of saving the lives of migrants; and finally make Constitutional Due Process and equal justice for all real at the “retail level” of our American Justice system!
If our democracy fails — certainly an unhappy possibility at this point in time — future historians will undoubtedly dissect the major responsibility stemming from Garland’s inexplicably weak, disconnected, and inept performance in ignoring the dangerous dysfunction in our Immigration Courts and Immigration Judiciary.
The scurrilous attack on our democracy by far-right demagogues started with racist lies about immigrants, continued with the weaponizing of the Immigration Courts, and evolved with the compromising of the Article III Judiciary! But, it certainly hasn’t ended there!
Getting rid of the leftovers of the “Trump Kakistocracy” at DOJ and EOIR should be one of the top priorities of the Biden Administration’s “campaign to save American democracy!” Why isn’t it?
The unconscionable failure of Garland’s chief lieutenants, Lisa Monaco, Vanita Gupta, Kristen Clarke, and Elizabeth Prelogar — all of whom supposedly have some experience and expertise in constitutional law, human rights, civil rights, racial justice, and legal administration (talk about a shambles at EOIR!) — to get the job done for immigrant justice at DOJ also deserves to go “under the microscope” of critical examination.
How do they glibly go about their highly paid jobs daily while migrants suffer and die and their attorneys are forced to waste time and struggle against the absurdist disaster at EOIR? Can any of these “out of touch” bureaucrats and politicos even imagine what it’s like to be practicing at today’s legally incompetent, insanely mal-administered, intentionally anti-due-process, overtly user unfriendly EOIR?
By the grace of God, I’m not practicing before the Immigration Courts these days! But, after recent conversations with a number of top practitioners who are being traumatized, having their precious time wasted, and seeing their clients’ lives threatened by EOIR’s stunning ongoing incompetence and dysfunction, I don’t understand what gives high-level political appointees and smug bureaucrats the idea that they are entitled to be “above the fray” of the godawful dysfunction, downright stupidity, and human trauma at EOIR for which they are fully accountable!
One practitioner opened their so-called “EOIR Portal” to show me how they were being mindlessly “double and triple booked,” sometimes in different locations, even as we spoke. Cases set for 2024 were “accelerated” — for no obvious reason — to October 2022 without advance notice to or consultation with the attorney — a clear violation of due process! Asylum cases that would require a minimum of three hours for a fair hearing were being “shoehorned” into two-hour slots, again without consulting the parties!
Long a backwater of failed technology, the “powers that be” at EOIR and DOJ are misusing the limited, somewhat improved technology they now possess to make things worse: harassing practitioners, discouraging representation, and further undermining due process with haste makes waste “Aimless Docket Reshuffling.” Because of EOIR’s gross mismanagement, more Immigration Judges are actually producing more backlog, issuing more wrong decisions, and generating more unnecessary non-dispositive time-wasting motions. It’s an abuse of power and public funding on a massive, mind-boggling scale that undermines our entire justice system!
It seems that the “malicious incompetence” of the Trump DOJ has been exchanged for “just plain incompetence and intransigence” at Garland’s DOJ. Is this “change we should embrace?” Hell no!
Let’s hope that the real superheroes like Raed Gonzalez, folks working in the trenches of our failed justice system, can bail the rest of us out and inspire others to use all legal and political means at our disposal to rise up against Garland’s intransigence on immigration, human rights,and racial justice at DOJ!
I agree with President Biden that the extreme, insurrectionist far-right is the greatest threat to American democracy at this moment. But, it is by no means the ONLY one! It’s time for everyone committed to our nation’s future as a constitutional democracy to look closely at the deadly EOIR farce that threatens humanity, undermines the rule of law in America, and squanders tax dollars and demand positive change! Now!
It’s not rocket science, 🚀 even if it is inexplicably “over Garland’s head!”
Has Alfred E. Neumann been “reborn” as Judge/AG Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
Bonifacio Fernandez Sanchez, a Mexican citizen who migrated to the United States
illegally as a minor in 2006, was deported in 2011 following a four-minute removal hearing. During that hearing, the immigration judge neglected to advise Fernandez Sanchez about his eligibility for voluntary departure or inform him of his right to appeal. Then, in his written summary order, the immigration judge indicated that Fernandez Sanchez had waived his right to appeal—even though this was never discussed during the hearing.
In the years since, Fernandez Sanchez has returned to the United States and been deported multiple times. Upon discovering him in the country once again in 2018, the Government opted to arrest and charge him with illegal reentry in violation of 8 U.S.C. § 1326(a). Fernandez Sanchez moved to dismiss his indictment, arguing that the 2011 deportation order underlying his § 1326 charge was invalid.
The district court agreed, finding that the immigration judge’s failure to advise Fernandez Sanchez regarding his eligibility for voluntary departure rendered his 2011 removal fundamentally unfair. However, while this appeal was pending, we effectively rejected the district court’s reasoning in United States v. Herrera-Pagoada, 14 F.4th 311 (4th Cir. 2021). Fernandez Sanchez nevertheless maintains that the district court’s decision must be affirmed on an alternative basis: that the immigration judge’s denial of his right to appeal also prejudiced him. We agree, and therefore affirm the dismissal of Fernandez Sanchez’s indictment.
. . . .
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To me, it sounds like the 4th Circuit having “buyer’s remorse” about their questionable decision in United States v. Herrera-Pagoada, There, the court found that an IJ’s erroneous failure to advise a respondent of the availability of pre-hearing voluntary departure (“VD”)was not a constitutional violation because there was no constitutional right to be advised of potential relief from deportation, even though a DOJ regulation required it! Huh?
But, here the court finds that the IJ’s improper failure to advise of the availability of prehearing VD combined with his failure to advise of appeal rights WAS a due process violation. Why? Because, if properly advised, the individual probably would have appealed, been successful, received a remand from the BIA, and then received VD from the IJ, thus avoiding deportation. Huh?
The problem here is that as currently staffed and operated by the Executive, EOIR is one “walking, talking violation of due process.” If Congress won’t solve the problem by enacting a long overdue Article I Immigration Court, then the Article IIIs need to “take the bull by the horns!”
They should place this entire, festering conflict of interest, and hotbed of substandard quasi-judicial performance OUT of the control of the nation’s Chief Prosecutor, the AG. Until Congress acts to establish a constitutionally compliant system, EOIR should be placed under the supervision of an independent, expert “Special Master” qualified to fairly administer one of the nation’s most important, yet totally dysfunctional and highly unfair, court systems!
Interestingly, much of the court’s reasoning is based on the premise that on appeal the BIA would have corrected the IJ’s clear errors. But, as those who follow Federal immigration litigation are aware, the BIA’s “assembly line” appellate review, sensitivity to due process, and willingness to apply precedent favoring the respondent are often as slipshod and driven by undue haste as this 4-minute IJ hearing.
Ironically, the IJ who mishandled this case is generally regarded as one of the “best in the business” — experienced, knowledgeable, fair, and sensitive to the rights of individuals coming before him. So, while this screw-up might be an aberration for this particular IJ, it’s clearly not a systemic rarity.
In the haste makes waste, hopelessly backlogged, “anything goes” “world of EOIR” goofs like this are likely happening every hour of every day that the Immigration Courts are in session. But, since many folks are unrepresented or underrepresented, some mistakes are simply buried or deported.
Indeed, I had my share of 4-minute (or less) “hearings” during 13 years on the bench. Inevitably, I made some mistakes — some were caught, some inevitably weren’t. Hopefully, I learned from the ones brought to my attention. With “Master Calendars” often consisting of upwards of 50 cases in a 3-hour “slot” in a courtroom overflowing with humanity — and the need to provide stressed out interpreters court clerks, counsel, and me with suitable “breaks” — you can do the math!
Once I did a 100 case Televideo Master in Ohio where 1) I had no files; 2) the ICE ACC who had been detailed to the hearing location had no files; and 3) the interpreter spoke a language other than the one of the majority of the respondents on the calendar. Afterwards, I told the then Chief IJ that I had spent the day in “Clown Court!’” 🤡 He was not amused.
To quote my friend and former colleague retired Judge Wayne Iskra: “This system is broken!”“Numbers,” “final orders,” “expediency,” and “productivity” to satisfy bureaucratic enforcement goals or to support Government myths about immigrants drive the EOIR system. Due process, fundamental fairness, compliance with the statute and regulations, and meaningful analysis are not this dysfunctional system’s focus. But, they must be!
Clearly, “dedicated dockets,” regulatory time frames, form orders, remote “Adjudication Centers,” and other “designed to fail” gimmicks tried under Garland are NOT going to solve the chronic quality-control and due process problems plaguing EOIR!
In other words, EOIR as currently constituted and “operated” is a “due process sham!” The 4th Circuit and other Article IIIs need to “dig deeper” into the glaring constitutional and professional quality problems plaguing Garland’s broken Immigration Courts! If neither he nor Congress will solve the problems, somebody must!
Given our familiarity with the record at this point, we are prompted to note that it is not at all apparent to us how an application of the Frentescu factors to Dor’s case would lead to a particularly-serious-crime determination. For instance, consider again the June 1 incident — the BIA relied on a police officer’s assessment that Dor had a “large amount” of marijuana on him, but this on-the-scene appraisal by an officer is largely irrelevant to an immigration-law-driven determination that a crime is particularly serious pursuant to the guiding statutes, especially when the actual amount (25 grams, a small amount) is available. See Matter of Castro Rodriguez, 25 I. & N. at 703; Moncrieffe, 569 U.S. at 194 n.7. Consider, too, that while the BIA identified the type of sentence imposed as a Frentescu factor but never mentioned (or weighed) Dor’s sentences, we observe that
– 23 –
Dor received lenient sentences with respect to both offenses (a two-year probation and a one-year suspended sentence that never went into effect since Dor completed a violation-free probation period).
As to Dor’s involvement in trafficking as part of the calculus here, based on the amount in question, and again on the face of this record, this characterization seems ambitious. The May 20 offense officers observed Dor sell “20 bucks[‘ worth]” of marijuana to another individual; the June 1 incident revealed Dor had in his possession a digital scale, a large amount of U.S. currency, and 25 grams of marijuana.
Bottom line: The BIA’s particularly-serious-crime conclusion is devoid of any actual application of the Frentescu factors, and even if we considered it a solid application of the law to Dor’s case, we still do not have a sufficiently rational explanation of the BIA’s particularly-serious-crime conclusion as to Dor’s minor marijuana offenses, and a rational explanation is necessary to ensure Dor was appropriately precluded from obtaining the humanitarian relief he seeks.
DEAN’S LIST: A+‘s go to :
Edward Crane, with whom Philip L. Torrey, Crimmigration Clinic, Harvard Law School, Shaiba Rather, Lena Melillo, and Katie Quigley, Law Student Advocates, Crimmigration Clinic, Harvard Law School, were on brief, for petitioner.
In sum, the Government has identified no evidence that supports divisibility. The statute, the case law, and the available state court documents all support the opposite conclusion.11 Because Pennsylvania’s stalking statute is indivisible as to intent, we apply the categorical approach. And under the categorical approach, Section 2709.1(a)(1), which sweeps more broadly than its generic counterpart in the INA, is not a categorical match. Vurimindi’s offense of conviction therefore does not qualify as a removable offense.
The Dor case also presents a familiarly outrageous characteristic of American immigration policy — still going strong in the era of Biden, Harris, and Garland — “Dred Scottification” — that is systemic injustice — directed at Black Haitian refugees. Indeed, Dor is lucky to be in the “system” at all — no matter how biased and poorly functioning. Following in the footsteps of the overtly racist and xenophobic Trump Administration, under Biden more than 25,000 potential Haitian refugees have been arbitrarily returned under Title 42 with no process at all — not even the “veneer of due process” provided by EOIR! Seehttps://www.wola.org/2022/05/weekly-u-s-mexico-border-update-title-42-ruling-family-self-separations-more-drownings-haiti-expulsion-flights/.
The cases described above have been pending for three and six years, respectively. EOIR presents the worst of both worlds: lengthy delays and backlogs without due process and careful expert consideration of the issues involved. Injustice at a high cost, in more ways than one!
After trips to three levels of our broken immigration justice system, countless hours of legal time, and untold trauma and uncertainty for the individuals subjected to this dysfunctional system, these cases remain far from final resolutions. Now they go back into Garland’s incredible nearly two million case backlog!
Sometimes, the BIA uses this as an opportunity to invent a new “bogus theory of denial.” Other times, the files get lost or reassigned. In other words, they are subject to EOIR’s “specialty:” “Aimless Docket Reshuffling!”
Garland doesn’t lose any sleep over it because: 1) not his life on hold, 2) not his time and money being wasted, and 3) he isn’t paying attention! This is unacceptable public service! Plain and simple! And, there appear to be few, if any, real consequences for anybody except the individuals whose lives and futures are at stake and their (often pro bono) lawyers!
How completely “out of touch” is Garland? He has put bogus, “Mickey Mouse” time limits on new asylum adjudications. Doing incompetent and biased adjudications faster isn’t going to solve the problem. It will actually make backlogs worse and more importantly, increase the number of defective asylum denials — already at beyond unacceptable levels.
You can’t fix a broken system by making it “pedal faster!” Why, after all these years, Garland doesn’t understand that “fundamental rule of Goverment bureaucracy” is totally beyond me!
The obvious solution: Put emphasis on getting these cases right at the first instance. That means “canning” the “anti-immigrant default and assembly line process” and getting expert IJs willing to rule in favor of individuals where appropriate and a revamped BIA of expert judges willing to issue precedents favorable to individuals and insure that IJs properly follow them. It also means a BIA who will follow precedent even where it doesn’t produce a “DHS Enforcement-friendly result.”
Additionally, “lose” OIL’s often-dilatory or quasi-frivolous arguments designed to cover up EOIR failures and block justice! (HINT: The Assistant AG, Civil, one of the key sub-cabinet positions at DOJ, and OIL’s “boss,” remains unfilled approaching the halfway point of the Biden Administration.) This system is broken from top to bottom, including the litigation “strategy” that attempts to shield unfair and legally incorrect EOIR decisions from critical substantive review by Article III judges independent from the Executive.
Yes, Garland recently has “pruned” some of the deadwood at EOIR and brought in a few widely-respected expert “real judges.” That’s some progress.
But, he’s barely scratched the surface of the anti-immigrant culture, “haste makes waste” atmosphere, and shoddy decision making at EOIR and the poorly conceived litigation strategies at OIL! In particular, the dysfunctional DOJ immigration bureaucracy glaringly lacks inspired progressive due-process-committed, human-rights-focused, racial-justice-sensitive leadership willing to stand up for individual rights against Government overreach and abuses!
Of course, the “real” solution is to get the Immigration Courts out of DOJ and into an independent Article I structure. But, unfortunately, that isn’t going to happen tomorrow.
In the meantime, there is plenty that Garland could be doing to improve due process and professionalism and to “pave the way” for the eventual transition to Article I. The more dysfunctional Garland makes his system the more difficult and rocky that transition will be.
Garland isn’t getting the job done! Everyone who cares about the future of our nation and the rule of law should be asking why and demanding better from Garland and his “asleep at the switch” lieutenants!
High-powered lawyers like Courtney Saleski, National Co-Chair of DLA’s White Collar Practice, who successfully litigated Vurimindi in the 3rd Circuit have some “juice.” They need to team up with the ABA, FBA, AILA, ACLU, Human Rights First, NIJC, the NAACP,Catholic Conference, HIAS, and other human rights and civil rights groups and “camp on Garland’s doorstep” until he “pulls the plug” on his dysfunctional, unprofessional EOIR and brings in due-process-focused competence! How many resources and human lives can our nation afford to waste on Garland’s EOIR disgrace?
Individuals whose lives are subject to systemic injustice and their hard-working, often pro bono, attorneys might “dissent” from Garland’s dilatory approach to long overdue due process reforms and key personnel changes in his stunningly dysfunctional Immigration Courts!
PHOTO: Wikipedia Commons
Would you want this guy as your Immigration Judge or BIA “panel?” If not, tell Garland to “pull the plug” on his deadly and incompetent BIA! Public Domain
Sorto-Guzmán v. Garland, 4th Cir., 08-93-22, published
PANEL:KING and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.
OPINION: Judge FLOYD
KEY QUOTE:
In sum, we hold that the IJ’s decision, which the BIA adopted, blatantly ignored our long line of cases establishing that the threat of death alone establishes past persecution. This was legal error, and therefore, an abuse of discretion. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). We hold that Sorto-Guzman has established she was subjected to past persecution in El Salvador.2 She is thereby entitled to the presumption of a well-founded fear of future persecution. Li, 405 F.3d at 176; 8 C.F.R. § 208.13(b)(1). The IJ and the BIA erred in not affording Sorto-Guzman this presumption, which would
2 Sorto-Guzman argues, in the alternative, that the IJ and the BIA erred in finding that she failed to establish a well-founded fear of future persecution. We will not answer that question today. Because we hold that she properly established past persecution, the proper remedy is to remand the case to the BIA to consider the question of whether DHS can rebut the presumption that Sorto-Guzman has a well-founded fear of future persecution.
11
have then shifted the burden to DHS to rebut the presumption. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004); 8 C.F.R. § 1208.13(b)(1)(i).
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Sorto-Guzman is a life-long Catholic who regularly attended Catholic services in El Salvador. In December 2015, about five members of the Mara 18 gang accosted Sorto- Guzman in the street as she was leaving church. At the time, she was wearing a crucifix medallion around her neck. The gang members tore the chain from her neck, hit and kicked her, and threatened to kill her if she ever wore it or attended church again. Sorto-Guzman stopped attending church after the attack, fearing the gang and their threats.
A few weeks later in January 2016, a group of Mara 18 gang members—including some of the gang members from the December 2015 assault—stopped Sorto-Guzman, along with her sister and Rivas-Sorto, as she was coming home from a shopping trip. One of the men attempted to sexually assault Sorto-Guzman and had started to forcefully kiss her. He only stopped when her screams caught the attention of a neighbor. The gang members threatened to kill Sorto-Guzman and Rivas-Sorto if Sorto-Guzman did not join the gang and start living with them.
3
On February 13, 2016, some of the gang members from the prior incidents tracked where Sorto-Guzman lived and broke into her house carrying guns. The gang members viciously beat Sorto-Guzman, threatened her life, and robbed her. Sorto-Guzman’s neighbors called the police, but they did not come until several hours after the assault. Sorto-Guzman reported the assault and robbery to the officers who arrived at the scene. She also went to the local police station the next day to report the attack. The police made one attempt to investigate, but Petitioners were not home when the police arrived, and the officers never followed up. The day after, a gang member called Sorto-Guzman, warning her she would regret making the report to the police and that they would soon kill her, her son, and her sister.
Absurdly, an Immigration Judge found that this gross abuse and death threats by a gang with the ability and willingness to carry them out did not amount to “persecution.” Worse yet, on appeal, rather than reversing and directing the judge below to follow the law, the BIA agreed — invoking the outlandish “theory” that the death threats, on top of the savage beating, weren’t so bad because they had never come to “fruition.” In other words, the applicant hadn’t hung around to be killed. Then, to top it off, attorneys from the DOJ’s Office of Immigration Litigation (“OIL”) unethically defended this deadly nonsense before the Fourth Circuit! This is “justice” in Garland’s disgraceful, deadly, and dysfunctional “court” system!
Garland’s BIA Judges applying the “fruition” test. If she lives, it’s not persecution! Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
NOT, a “mere mistake.”
EOIR’s performance is this case, particularly the BIA’s absurdist conclusion that, essentially, death threats must result in death to constitute past persecution, is a contemptuous disregard for binding circuit precedent, a demonstration of gross anti-asylum bias, misogyny, and a clear example of judicial incompetence.
Would a heart transplant surgeon who “forgot” to install a new heart or neglected to sew up the patient’s chest be allowed to continue operating? Of course not! So, why is the BIA still allowed to botch life or death cases — the equivalent of open heart surgery?
If Garland allows his “delegees” to perform in this dangerous and unprofessional manner, in his name, what is he doing as Attorney General? This is a farce, not a “court system?” Those responsible need to be held accountable! And, OIL’s unethical defense of this deadly nonsense is indefensible!
“What are legal ethics? Not my friends or relatives whose lives as being destroyed by these ‘Kangaroo Courts.’ Just ‘the others’ and their dirty immigration lawyers! So, who cares? Why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
We’ve heard lots lately from Garland about “accountability.” Why doesn’t it apply to his own, wholly owned, totally dysfunctional, legally deficient, contemptuous, unprofessional “court system” that builds astounding, self-created backlogs while causing pain, suffering, and sometimes sending innocents to death?☠️
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Additionally, in Kansas this week, women have shown the power of their just demand to be treated as humans, with rights, rather than dehumanized pawns just there to re-populate the world for the men in charge. So, why not unleash the same passion and rightful fury on Garland and his ongoing, illegal, misogynistic treatment of women (primarily women of color) at EOIR!
“She struggled madly in the torturing Ray” — AG Garland has failed miserably to engage with the plight of women, mostly those of color, being denied fundamental rights and abused daily by his lawless, anti-immigrant, anti-asylum, misogynistic “holdover” EOIR! Why are women putting up with his bad attitude and dilatory approach to justice? What happened to Lisa Monaco, Vanita Gupta, and Kristen Clarke? Are they “locked in a dark closet” somewhere in Garland’s DOJ? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where “judges” operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world! The Twilight Zone Billy Mumy 1961.jpg :PHOTO: Public Realm
Another timely report from Dan Kowalski @ LexisNexis:
“Perez-Vasquez is correct that the BIA erred by failing to address key evidence. See Cabrera v. Sessions, 890 F.3d 153, 162 (5th Cir. 2018). Specifically, the BIA did not consider several factors he raised in his motion to reopen as to whether exceptional circumstances prevented his appearance at his removal hearing, including evidence of: (1) Perez’s multiple attempts to contact both the Portland and El Paso immigration courts; (2) the fact that he filed two change of address forms because the El Paso immigration court sent the notice of hearing to the wrong address after he filed his first one; (3) the fact that his hearing was set in El Paso—where his son was detained—as opposed to Portland despite informing officials that he was going to reside in Oregon; (4) his financial constraints in travelling to El Paso with three-days notice. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. 318, 321 & n.4 (BIA 2021); see also Magdaleno de Morales v. INS, 116 F.3d 145, 148 (5th Cir. 1997) (considering whether alien attempted to contact the immigration court prior to hearing). Additionally, the BIA failed to address evidence of Perez’s regular check-ins with immigration officials and his diligence in filing a motion to reopen, which tend to show an incentive to appear. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. at 321. … Perez-Vasquez’s petition for review is GRANTED in part, DISMISSED in part, and DENIED in part. His case is REMANDED to the BIA for the limited purpose of considering—in light of the totality of the circumstances of his individual case—whether exceptional circumstances prevented his appearance at his removal hearing.”
[Hats off to NIPNLG Director of Legal Resources and Training Michelle N. Méndez!]
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
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The facts of this case are somewhere out there in the “twilight zone.” Would any other tribunal in America waste two decisions denying an individual a fair hearing in this situation?
But, sadly, it’s what we have come to expect from a failing organization that is more interested in denying the right to be heard than in conducting hearings! Of course, EOIR is building record backlogs with “Aimless Docket Reshuffling,” lousy leadership, bad, often anti-immigrant, jurisprudence, and infinite tolerance for substandard performance within its ranks! Enough!
Congratulation Michelle, my friend, to you and your all-star team over at NIPNLG. Perhaps the worst mistake that Garland has made as AG was not immediately “cleaning house” at EOIR and appointing folks like Michelle and others from the NDPA to fix the system: At long last, bring practical scholarship, creative thinking, “experience in the trenches,” and an unswerving commitment to due process into a dysfunctional organization and “take names and kick tail” of those judges and others who are still “with” the mindless, immoral, counterproductive, and wrong-headed “any reason to deny/courts as a soft deterrent” approach of the former Administration.
The EOIR system needs real, dynamic intellectual leaders and widely-respected, innovative, courageous “practical scholars” like Michelle! A few such folks exist in today’s EOIR. But, they are essentially buried in the “forest of intellectual and moral deadwood” that Garland has not yet cleared out!
We are well into the Biden/Harris Administration; but, bad and poorly qualified judges and weak or inept administrators from the Trump and Obama Administrations (or even Bush II) are still wreaking havoc on American justice and threatening our democracy.
By contrast, if not invited to fix the broken EOIR system “from the inside” Michelle and the other members of the NDPA are going to force change from the outside! You can count on it! They will keep at it until this dysfunctional, unfair, and mal-administered system either reforms or collapses under the weight of its own incompetence, cruelty, inefficiency, and just plain stupidity!
Consistently getting these cases right (an MTR, for Pete’s sake) isn’t “rocket science.” A competent IJ would have taken about 5 minutes or less to mark this “granted” and change venue to Portland. A competent appellate tribunal would have reversed and rocketed it back to the IJ with instructions to “cut the BS.”
But, it continues to be elusive for Garland’s “gang that can’t shoot straight!” This system “coddles” poorly performing judges at both levels!
Meanwhile, they “throw the book” at desperate individuals trying their best to navigate EOIR’s broken, irrational, and intentionally “user unfriendly” parody of a “court system.” It is truly the “Twilight Zone of American Justice!”
Think of it: Four years, three tribunals, at least five Federal Judges, and a bevy of lawyers and clerks have spent time on this case. And, EOIR is no nearer to getting to the merits than the day the NTA was issued! This system needs “practical problem solvers” like Michelle, NOT “stuck in the mud” bureaucrats masquerading as judges, professional judicial leaders, and role models.
Tell Garland it’s time for a better, smarter approach to justice at EOIR! The real talent is out here! What’s he waiting for?
U.S. watchdog says pressure from patent officials affected agency rulings
Blake Brittain July 21, 20224:11 PM EDTLast Updated a day ago
(Reuters) – U.S. Patent and Trademark Office administrators improperly influenced decisions by the office’s patent-eligibility tribunal for years, the U.S. Government Accountability Office said in a preliminary report released Thursday.
The report said two-thirds of judges on the PTO’s Patent Trial and Appeal Board felt pressure from higher-ups at the office to change aspects of their decisions, and that three-quarters of them believed the oversight affected their independence.
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While the report said management “rarely” influenced decisions on whether to cancel a patent, it said it did affect judges’ rulings on questions like whether to review a patent.
A PTO spokesperson said the report “reflects GAO’s preliminary observations on past practices,” and that current director Kathi Vidal has “prioritized providing clear guidance to the PTAB regarding the director review process” since taking office in April.
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The U.S. Supreme Court decided last year that the PTO director should be able to review board decisions.
The PTAB allows parties to challenge the validity of patents based on preexisting inventions in “inter partes review” proceedings.
A committee of volunteer judges began peer reviewing decisions in such cases for style and policy consistency and flagging them for potential management review in 2013, the report said. PTAB management began informally pre-reviewing board decisions on important issues and offering suggestions in 2017, and management review became official PTO policy in 2019.
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Some PTAB judges said their decisions had been affected by fears of negative career consequences for going against the suggestions. One judge said in the report that the review policy’s “very existence creates a preemptive chilling effect,” and that management’s wishes were “at least a factor in all panel deliberations” and “sometimes the dominant factor.”
The report said the internal review policies were not made public until May.
Republican Congressman Darrell Issa of California said during a U.S. House of Representatives subcommittee hearing Thursday that the report of officials influencing PTAB decisions “behind closed doors” was “disturbing.”
Andrei Iancu was appointed PTO director by former President Donald Trump and took charge of the office in 2018. Iancu, now a partner at Irell & Manella, had no comment on the report.
Issa, the subcommittee’s ranking member, and its chairman, Democratic Congressman Hank Johnson of Georgia, called on the GAO last year to investigate the PTO director’s potential influence on PTAB cases.
(NOTE: This story has been updated with comment from the U.S. Patent and Trademark Office.)
Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com
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While it might once have seemed like a great idea, after more than a half-century the so-called “Administrative Judiciary” has proved to be a failure. It often delivers watered-down, sloppy, political, expedient, or “agency friendly” decisions with the “window dressing” of due process and real judicial proceedings.
Moreover, contrary to the original purpose, in most cases it is neither truly “expert” not “efficient.” Indeed, the Immigration Courts have built “one of the largest backlogs known to man!” That just leads to more misguided “gimmicks” and pressure to “speed up the quasi-judicial assembly line!” Individual lives and rights are the “big losers.”
To make matters worse, under the “Chevron doctrine” and its “off the wall” progeny “Brand X,” the Article IIIs “cop out” by giving “undue deference” to this deficient product.
It’s time for all Federal Judicial tribunals to be organized under Article III or Article I of the Constitution and for the legal profession and law schools to take a long, critical look at the poor job we now are doing of educating and preparing judges. We need to train and motivate the “best, brightest, and fairest” to think critically, humanely, and practically. Then, encourage them to become judges — out of a sense of public service, furthering the common good, promoting equal justice for all, and a commitment to vindicating individual rights, not some “ideological litmus test” as has a become the recent practice.
⚡️🔌 SHORT CIRCUIT! — TOTALLY UNQUALIFIED TRUMP HOLDOVER & ANTI-IMMIGRANT ZEALOT TRACY SHORT FINALLY FORCED OUT @ EOIR — Notorious Member Of Sessions-Hamilton-Barr “Atlanta Xenophobic Mafia” 🏴☠️ Resigns 😎⚖️🗽👍🏼
By Paul Wickham Schmidt
Special to Courtside
July 21, 2022
Multiple sources report that now-former Chief Immigration Judge Tracy Short resigned today. This long overdue action ends one of the most grotesque ongoing farces in the American legal system.
This total travesty saw the Trump holdover member of the Sessions-Hamilton “Atlanta Xenophobic Mafia” — appointed by former AG Barr without any judicial experience or qualifications — continue to drag down the Immigration Courts with increased due-process-denying backlogs and anti-immigrant shenanigans during the first 18 months of the Biden Administration. As a “Senior Executive,” Short could and should have been reassigned long ago by AG Merrick Garland to a position where he no longer could undermine American justice.
Short’s appointment by Barr two years ago stunned and outraged experts and practitioners. https://wp.me/p8eeJm-5HB. ICE Atlanta and the Atlanta Immigration Court were generally held in low professional regard by practitioners and observers not part of the nativist cabal with which both have long been associated.
Short’s appointment was particularly galling to those committed to due process and fundamental fairness because he replaced then Acting Chief Immigration Judge Christopher Santoro, a far more qualified candidate who had been an outspoken force for fairness and impartiality. That’s actually what the Immigration Courts are supposed to be about, but clearly were not during the Trump era at DOJ.
Short’s resignation comes as the National Association of Immigration Judges (“NAIJ”) seeks “re-recognition” from the Biden Administration. Short helped spearhead Barr’s inexplicably successful effort to “de-certify” the NAIJ as thinly disguised “punishment” for speaking out for judicial independence and exposing the many ongoing abuses of due process at EOIR.
Predictably, nativist/restrictionist groups and their “GOP cheerleaders” like Sen. Chuck Grassley (R-IA) and insurrectionist apologist Rep. Jim Jordan (R-OH) raised absurdist claims of a “political vendetta.” That’s ironic considering that the Trump group improperly “weaponized”EOIR to serve not as a legitimate quasi-judicial arbiter, but rather as an overtly biased and unqualified “enforcer” of their racially-charged “gonzo” enforcement policies.
The latter combined illegality, incompetence, and gratuitous cruelty in a toxic brew directed at migrants. It particularly targeted those of color, women, and children.
This apoplectic response by the radical right in and of itself should assure Garland that he is finally on the right track with getting unqualified judges and administrators out of EOIR and replacing them with competent judges with reputations as fair-minded experts in due process, human rights, and immigration. Perhaps the curtain is finally beginning to come down on the long-running “clown show” at EOIR!
During the Trump Administration, appointment of former prosecutors as Immigration Judges outnumbered appointments from the ranks of private and academic sector practitioners by approximately nine to one. At first, Garland curiously did little to change that — actually elevating some of his predecessors’ questionably-qualified candidates. Now, this very modest long overdue effort to rid the system of “deadwood” and bring in at least some experts from outside the world of government prosecutors is sending “shockwaves” through “restrictionist world.” Restrictionists ran roughshod over the Immigration Court system during the days of White Nationalist Stephen Miller and his cronies! They obviously hate the idea that the Biden Administration belatedly is acting like the 2020 election actually had consequences!
No immediatereplacement for Short was named by EOIR. Garland must not pass up this opportunity to bring true expertise and dynamic due-process-focused leadership into his broken EOIR court system! It’s up to everyone committed to fairness and due process for all at EOIR to make sure that Garland “gets it right” this time around!
Jarndyce v. Jarndyce: “The suit does not sleep; we wake it up, we air it, we walk it about. Thats something.” From “Bleak House” by Charles Dickens (1895). Garland has created a “Dickensonian” nightmare @ EOIR — including rushing some arbitrarily selected poor souls through his broken system to deportation orders with little or no process at all, let alone due process of law!
TRAC Immigration reports:
Transactional Records Access Clearinghouse
Pace of Immigration Court Processing Increases While Backlog Continues to Climb
The latest case-by-case records show that the Immigration Court backlog reached 1,821,440 at the end of June 2022. This is up 25 percent from the backlog just at the beginning of this fiscal year. These figures are based on the analysis of the latest court records obtained through Freedom of Information Act (FOIA) requests by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
New Immigration Court cases continue to outstrip the number of cases being closed. So far during the first nine months the court received 634,594 new cases, but has only managed to dispose of 287,711. These closures took 1,130 days on average or more than three years from the date of the Notice to Appear (NTA) to the court’s disposition. Part of the delay represents the time it took from the Department of Homeland Security to actually file the NTA after it was issued. This delay reached record levels during the Trump administration three years ago, but NTAs are being filed much more promptly under the current administration.
The pace of court closures also has been accelerating. After the partial government shutdown in March 2020, court closures averaged just 6,172 per month for the remainder of that fiscal year. During FY 2021, court closures roughly doubled to 12,055 on average per month. By the end of the first six months of FY 2022, monthly closures had again doubled to an average of 23,957 per month. And this last quarter covering just the three-month period from April – June 2022, monthly closures doubled again to 47,991 on average each month.
According to court statistics, immigration judges on board at the beginning of this past quarter had increased just 6 percent over levels at the beginning of FY 2022. Thus, the increase in judge hiring only accounts for some of this speedier pace. A more important factor appears to be the many changes implemented by the Biden administration to increase the speed that court cases get scheduled and decided. However, as TRAC has reported, the increase in speed has come with heightened due process concerns, increasing the number of asylum seekers unable to secure legal representation which then greatly diminishes their opportunity to adequately prepare and present their asylum claims.
For more highlights on the Immigration Court, updated through June 2022, go to:
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Wendy Young President, Kids In Need of Defense (“KIND”)
Dear Paul –
The entire team at Kids In Need of Defense is devastated by the news that at least 46 people were found dead in an abandoned tractor-trailer in Texas and more than a dozen others in the truck, including children, were taken to local hospitals for treatment. While we wait for more details to emerge, we wanted to share the following statement from our President, Wendy Young.
“As rising violence, natural disasters, and other threats force migrants to make impossible choices in their quest to find safety, our nation’s response cannot be to place families and children in further harm by indefinitely closing our borders to people seeking protection and ignoring the dangers they face in their home countries. This most recent tragedy and the disturbing rise in migrant deaths globally underscore the need to create safer pathways to protection for refugees. The Biden Administration should see this heartbreaking tragedy for what it is, a clarion call to abandon deeply flawed and dangerous immigration policies. It must reinstate humane and orderly processing, including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims. It is time for the United States to regain its footing as a leader in the protection of migrant families and children.”
– The KIND Team
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The key part of Wendy’s statement: “including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims.”
Denial rates for recent arrivals who manage to get hearings (see, e.g., Garland’s bogus “dedicated dockets,” — actually “dedicated to denial” and nothing else), many of them children and unrepresented, hover around 100%. They are “guided” by a “largely holdover,” anti-asylum BIA that lacks true asylum expertise and issues no positive precedents instructing judges on how to consistently and legally grant asylum. Consequently, there is no “fair adjudication” of asylum claims. That feeds the toxic nativist myth that nobody at the Southern Border is a “legitimate” asylum seeker.
Unless and until Garland tosses the unqualified jurists at EOIR and replaces them with experts committed to due process, fundamental fairness, and correct, generous, practical precedents and proper applications of asylum law, the system will remain in failure. It’s a monumental mistake by the Biden Administration not to fix that which they absolutely control — starting with the Immigration Courts at EOIR.
Refugees will continue to die at the hands of smugglers who were given control of our immigration system by the Trump Administration and remain empowered by Garland’s & Mayorkas’spoor performance combined with biased, White Nationalist, Federal Judges appointed by Trump at all levels of our failing justice system!
Today’s WashPost editorial described how far-right nativists have basically turned our immigration system over to smugglers:
The absence of any workable legal system that would admit migrants systematically, in numbers that would meet the U.S. labor market’s demand, is the original sin of the chaos at the border. That is Congress’s bipartisan failure, a symptom of systemic paralysis for many years. More recently, a public health rule has had the effect of incentivizing unauthorized migrants to make multiple attempts to cross the border. The rule, imposed by the Trump administration, retained for more than a year by the Biden administration, and now frozen in place by Republican judges, allows border authorities to swiftly expel migrants, but with no asylum hearings or criminal consequences for repeated attempts to cross the border. That has been a boon to migrant smuggling networks.
I take issue with the term “bipartisan failure” in the legislative context. It’s true that the Dems inexplicably squandered a golden chance to fix many immigration problems when they had 60 votes in the Senate in Obama’s first two years. But, before and after that time, the failure to achieve realistic, humane, robust legal immigration reform legislation has been on the nativist right of the GOP that now dominates the party. Pretending otherwise is useless and dishonest.
All of these proposals would have made long-overdue, common sense reforms to eliminate hopeless backlogs, benefit our economy, strengthen our legal system, and facilitate better allocation of Government resources. Yet, there has been scant GOP interest in improving the system. The GOP appears to believe that promoting a dysfunctional immigration system, denying human rights, and guaranteeing a large “extralegal population” available as scapegoats and exploitable labor best serves their parochial political interests.
And, speaking of useless and dishonest, here’s Leon Krausze, WashPost Global Opinions Contributor, on how the disingenuous performance of Texas Governor Greg Abbott and Mexican President Andres Manuel Lopez Obrador has helped fuel both resurgent Mexican migration and unnecessary deaths at or near the border. https://www.washingtonpost.com/opinions/2022/06/29/san-antonio-migrant-deaths-trailer-mexico-amlo/.
The “good guys” — those committed to due process, fundamental fairness, individual rights, equal justice, scholarship, and human dignity — need to fight back at every level of our political and judicial systems — while they still exist! Because if the GOP has its way, that won’t be for long!🏴☠️
Anti-Asylum Judges In Action! Factual distortions, ignoring evidence, and misapplications of the law are some of the “weapons” wielded by some EOIR judges to stop asylum seekers from getting the life-saving legal protections they deserve! Article III Courts can compound the problem by mis-using “deference” to avoid critical examination of the frequent abuses of humanity and the rule of law inflicted by this parody of a court system. Albrecht Dürer, Public domain, via Wikimedia Commons
ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!
By Paul Wickham Schmidt
Courtside Exclusive
June 25, 2022
Over the last few weeks the long overdue and essential process of weeding out poorly qualified Immigration Judges — still on “probation” at EOIR — finally got off to a very modest start.
Imagine yourself as a refugee fighting for your life in an asylum system that’s already stacked against you and where the “judges” work for the Attorney General, part of the Executive Branch’s political and law enforcement apparatus.
How would you like your life to be in the hands of (now) former Immigration Judge Matthew O’Brien. He was appointed in 2020 by former AG Bill Barr — a staunch defender of the Trump/Miller White Nationalist, xenophobic, anti-immigrant agenda.
Nativism A “Qualification?”
What made O’Brien supposedly “qualified” to be a “fair and impartial” administrative judge?
Thankfully, O’Brien will pass into history. But, the damage inflicted by the “official policy of child abuse” will adversely affect generations.
Or, perhaps it was O’Brien’s intimate connection with a leading nativist group. Immediately prior to his appointment, he was the “Research” Director for the Federation for American Immigration Reform (“FAIR”) — a group renowned for sloppy to non-existent “research” and presenting racially-motivated myths and fear mongering as “facts.”
As noted by Nowrasteh, that’s not the only example of FAIR providing “bogus research papers” designed to “rev up hate” and demean the contributions of immigrants both documented and undocumented.
The Anti-Defamation League (“ADL”), one of America’s most venerable anti-hate, anti-misinformation groups, founded more than a century ago “To stop the defamation of the Jewish people and to secure justice and fair treatment to all,” had this to say about O’Brien’s former employer:
While the majority of the extreme anti-immigrant sentiment in the U.S. emanates from fringe groups like white supremacists and other nativists, there are a number of well-established anti-immigrant groups such as Federation for American Immigration Reform (FAIR), Center for Immigration Studies (CIS), NumbersUSA and The Remembrance Project which have secured a foothold in mainstream politics, and their members play a major role in promoting divisive, dangerous rhetoric and views that demonize immigrants. A number of these groups have attempted to position themselves as legitimate advocates against “illegal immigration” while using stereotypes, conspiracy theories and outright bigotry to disparage immigrants and hold them responsible for a number of societal ills. A decade ago, most of this bigotry was directed primarily at Latino immigrants, but today, Muslim and Haitian immigrants, among others, are also targeted.
. . . .
There is a distinct anti-immigrant movement in this country, whose roots can be traced back to the 1970s. Groups such as the Federation for American Immigration Reform (FAIR) and Center for Immigration Studies (CIS) hope to influence general audiences with somewhat sanitized versions of their anti-immigrant views. In their worldview, non-citizens do not enjoy any status or privilege, and any path to citizenship for undocumented immigrants or refugees is portrayed as a threat to current citizens. Like some other problematic movements, the anti-immigrant movement also has a more extreme wing, which includes border vigilante groups, as well as groups and individuals that seek to demonize immigrants by using racist, sometimes threatening language.
So, perhaps, you say, once actually “on the bench,” Judge O’Brien was able to overcome his biases and knowledge gaps and function as a fair and impartial judicial officer. Nope! Not in the cards!
According to TRAC, O’Brien denied almost every asylum case he heard (96.4% denials). That was, astoundingly, nearly 40% above the average of his colleagues in Arlington and nearly 30% higher than the nationwide asylum denial rate of approximately 67%.
But, to put this in perspective, we have to recognize that this denial rate had already been intentionally and artificially increased by a expanded,”packed,” politicized, “weaponized,” and intentionally “dumbed down” EOIR during the Sessions/Barr era at DOJ. For example, approximately 10 years ago, more than 50% of asylum, cases were being granted annually nationwide, and approximately 75% of the asylum cases in Arlington were granted. See, e.g., https://trac.syr.edu/immigration/reports/judge2014/00001WAS/index.html. And, even then, most asylum experts would have said that the nationwide grant rate was too low.
Gaming The System For Denial
It’s not that conditions in “refugee/asylum sending” countries have gotten better over the past decade! Far from it! The refugee situation today is as bad as it has ever been since WWII and getting worse every day.
So, why would legal refugee admissions be plunging to record lows (despite a rather disingenuous “increase in the refugee ceiling” by the Biden Administration) and asylum denials up dramatically over the past decade?
It has little or nothing to do with asylum law or the realities of the worldwide refugee flow, particularly from Latin American and Caribbean countries. No, it has to do with an intentional move, started under Bush II, tolerated or somewhat encouraged in the Obama Administration, but greatly accelerated during the Trump-era, to “kneecap” the legal refugee and asylum processing programs. Indeed, the “near zeroing-out” of refugee and asylum admissions and the illegal replacement of Asylum Officers by totally unqualified CBP Agents by the Trump Administration are two of the most egregious examples.
Ironically, the EOIR backlog tripled. Under the “maliciously incompetent management” of the Trump group at DOJ, more judges actually meant more backlog! How is that giving taxpayers “value” for their money?
Some of the new judges, like O’Brien and some of the Immigration Judges “elevated” to the BIA, were appointed specifically because of their established records of anti-asylum bias, rude treatment of attorneys, and dehumanizing treatment of asylum seekers and other migrants.
“Ignorance And Contempt”
It’s not like O’Brien was just your “garden variety” “conservative jurist.”(I’ve actually worked with many of the latter over the years). No, he was notorious for his lack of scholarship, rudeness, and bias!
Here are a few of the comments he received on “RateYourJudge.com:”
“Rarely grants cases. No knowledge of the law, only there to deny cases. He needs to be removed.”
“Biased judge, hates immigrants and even kids of immigrants.”
“Incompetent.”
“One of the most condescending and self-righteous judges I have had the displeasure to hear. His word choice and tone left absolutely no doubt that he considered the Respondent to be beneath his notice, even to the point of referring to her as “the female Respondent” and to her domestic partner as a “paramour”. I have heard other judges’ oral opinions on very similar sets of facts, and they were accomplished in a fifth of the time with no loss of dignity to anyone.”
“This guy’s ignorance about immigration law and contempt for the people who appear before him is staggering. The way he threatens lawyers is reprehensible. EOIR is a disgrace.”
“Horrible human being with no business being on the bench. Shame on EOIR for allowing him to continue adjudicating cases.”
“Late, abusive, made up his mind before the case even started, frequently interrupted testimony, yelled at immigrants and their lawyer, and refused to listen to anything we said. Ignorant of the law and facts of the case. He should go back to directing hate groups.”
Among the stream of negative comments there were three “positive” comments about O’Brien;
Most of the comments both positive and negative were “anonymous” or apparent user “pseudonyms;”
“RateMyImmigrationJudge” is neither comprehensive nor transparent.
Flunking the “Gold Standard”
So, was O’Brien really as horrible as most experts say? Let’s do another type of “reality check.”
Among the other IJs at the Arlington Immigration Court, two stand out as widely respected expert jurists who have served for decades across Administrations of both parties. Judge John Milo Bryant was first appointed as an Immigration Judge in 1987 under the Reagan Administration. Judge Lawrence Owen Burman was appointed in 1998 under the Clinton Administration. With 66 years of judicial service between them, they would be considered more or less the “gold standard” for well-qualified, subject matter expert, fair and impartial Immigration Judges.
Significantly, according to the last TRAC report, O’Brien’s asylum grant rate of 3,6% wasapproximately 1/15th of Judge Bryant’s and approximately 1/22 of Judge Burman’s. https://trac.syr.edu/immigration/reports/judgereports/. Case closed! O’Brien should never have been on a bench where asylum seekers lives were at stake and expertise and fairness are supposed to be job requirements!
“Worse Than O’Brien”
What about now former Arlington Immigration Judge David White who was removed at the same time as O’Brien? Apparently, during his relatively short tenure (appointed by Barr in 2020), White was unable to deny enough asylum to qualify for TRAC’s system (100 decisions minimum).
Yet, he made an indelible impression on those “sentenced” to appear before him. Here are comments from RateMyImmigrtionJudge.com:
“This judge is absolutely terrible. Unfair and biased. He is only here to deny asylum cases regardless of what the person has been through. Completely misstates the facts, doesn’t know the law so goes after credibility (using those misstated facts) as an excuse to say there’s no past persecution. Absolute disgrace.”
“Worst judge ever. The clerks at the Immigration Court told the private bar attorneys that they have NEVER seen this judge approve an asylum case. Not one. They have running bets and jokes about him, but he never grants. He writes the denial during the trial instead of listening to the person testify. He is insulting and rude and not at all compassionate about trauma.”
“This is the worst immigration judge in Arlington, hands down. He’s even worse than O’Brien, and O’Brien is an former hate-group director.”
“Terrible immigration judge. Had his mind made up well before our hearing. Came in with a prewritten denial that misstated the law. Was rude and dismissive about my client’s trauma.”
Wow! Worse than O’Brien. That’s quite an achievement.
GOP Court Packing
Fact is, the overt politicization, “weaponization,” and “dumbing down” of the Immigration Courts goes back nearly two decades to AG John Ashcroft and the Bush II Administration. Ashcroft reduced the size of the BIA as a gimmick to “purge” the supposedly “liberal” judges — those, including me, who voted to uphold the legal rights of migrants against government overreach. In other words, our “transgression” was to stand up for due process and the individual rights of immigrants — actually “our job” as properly defined.
And, the downward spiral has continued. The DOJ Office of Inspector General (“OIG”) actually confirmed some of the Bush II improper Immigration Judge hires. But, they avoided dealing with the “BIA purge” that got the ball rolling downhill at EOIR! The GOP has been much more skillful than Dems in reshaping the Immigration Courts to their liking.
During the Trump Administration, putting clearly unqualified IJs who were some of rudest highest denying in America on the BIA was certainly “packing” and “stacking” EOIR against legitimate asylum seekers. Again, however, the OIG failed to “seal the deal” regarding this outrageous conduct that has undermined our entire justice system, fed uncontrollable backlog, and cost human lives that should and could have been saved.
Trump’s “court packing scheme” was no “small potatoes” matter, even if some in the Biden Administration are willfully blind to the continuing human rights and due process disaster at EOIR.
Removing two of the most glaringly unqualified Barr appointees in Arlington is a very modest step by AG Garland in the right direction. But, it’s going to take more, much more, decisive action to clean out the unqualified and the deadwood, bring in true expertise and judicial quality, and restore even a modicum of legitimacy and integrity at EOIR.
Reactionaries’ Predictably Absurdist Reaction
Meanwhile, even this long overdue, well justified, and all too minimal change at EOIR produced totally absurdist reactions from O’Brien and fellow nativists (including some still “hiding out in plain sight” at DOJ) which were picked up by the Washington Times (of course). Don’t believe a word of it!
The removal of guys like O’Brien and White — who never had any business being placed in “quasi-judicial” positions where they exercised life or death authority over refugees of color whose humanity and legal rights they refused to recognize, is just a beginning. The ethical, competence, and judicial attitude rot at EOIR goes much deeper.
Garland has been dilatory in “cleaning house” at EOIR. Vulnerable individuals who were wrongly rejected rather than properly protected have needlessly suffered, and probably even died, as a result. Poor Immigration Judging and lack of effective, correct, courageous, positive asylum guidance by the BIA has helped fuel a human rights disaster and rule of law collapse at the border!
Perhaps, at long last, Garland has slowly started fixing the unconscionable and unnecessary dysfunction andintentionally ingrained institutional bias at EOIR. But, I’ll believe it when I see it!
Keep Up The Pressure
In the meantime, it’s critical that NDPA members: 1) keep applying for EOIR judgeships; and 2) ratchet up the pressure and demand the removal of all unqualified Immigration Judges and Appellate Immigration Judges who are undermining sound scholarship, due process, fundamental fairness, and human dignity at EOIR!
Human rights matter! Individual rights matter! Immigrants’ rights matter! Good judges matter!
Today, we are surrounded by too many bad judges, at all levels of our justice system, who reject the first three in favor of warped far-right ideologies, dangerous myths, and disregard for human dignity. The existential battle to get good judges into our system has begun. And, Immigration Courts are the primary theater of action!
“Petitioner Mario Rajib Flores Molina (“Flores Molina”) participated in demonstrations against the ruling regime in his native Nicaragua, where he witnessed the murder of his friend and fellow protester by police and paramilitary members. Thereafter, he was publicly marked as a terrorist, threatened with torture and death by government operatives, and forced to flee his home. Flores Molina, however, was tracked down at his hideaway by armed paramilitary members, and was forced to flee for his life a second time. Flores Molina still was not safe. He was discovered, yet again, assaulted, and threatened with death by a government-aligned group. Flores Molina ultimately fled a third time— from Nicaragua altogether—out of fear for his safety. He eventually presented himself to authorities at the United States border and sought asylum and other relief. When Flores Molina sought asylum, withholding of removal and protection under the Convention Against Torture (“CAT”), an Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) determined that his past experiences in Nicaragua did not rise to the level of persecution. They also determined that Flores Molina did not establish a well-founded fear of future persecution. The IJ and BIA denied all forms of relief and ordered Flores Molina’s removal to Nicaragua. Flores Molina petitions for review of the BIA’s denial of his appeal of the IJ’s decision, as well as of the BIA’s subsequent denial of his motion to reopen proceedings. Because the record compels a finding that Flores Molina’s past experiences constitute persecution and because the BIA erred in its analysis of the other issues, we grant the first petition and remand for further proceedings. Accordingly, we dismiss the second petition as moot.
[Hats off to Mary-Christine Sungaila (argued) and Joshua R. Ostrer, Buchalter APC, Irvine, California; Paula M. Mitchell, Attorney; Tina Kuang (argued) and Natalie Kalbakian (argued), Certified Law Students, Loyola Law School!]
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EOIR’s deadly, incorrect approach to sending refugees back to face persecution is legally incorrect, factually erroneous, and morally bankrupt. But, it does have one huge fan. Recently appointed Trump Ninth Circuit Judge Lawrence VanDyke:
In the Immigration and Nationality Act (INA), Congress codified the highly deferential substantial evidence test and established what should be our court’s guiding star in the review of immigration decisions: that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” INA § 242(b)(4)(B) (codified as 8 U.S.C. § 1252(b)(4)(B) (emphasis added)). Congress later amended the INA by passing the REAL ID Act, further reining in our role and discretion as a reviewing court and stripping federal courts of jurisdiction to hear certain immigration claims. See Nasrallah v. Barr, 140 S. Ct. 1683, 1698 (2020) (Thomas, J., dissenting). Over time, however, this court’s decisions have chipped away at these statutory standards—broadening the scope and standard of our review far beyond the limited and deferential posture that Congress unmistakably set out in the INA. See id.
To properly apply our deferential standard of review, we are supposed to scour the record to answer a single question: could any reasonable adjudicator have agreed with the agency’s result, or does the record as a whole compel a different conclusion? See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (explaining that substantial evidence review requires that we review “the record considered as a whole” and reverse the agency only if no reasonable factfinder could agree with its conclusion); see also Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (describing Elias-Zacarias as “the touchstone” and “definitive statement of ‘substantial evidence’ in the context of . . . factual determinations in asylum cases”). On its face, this is an exceptionally deferential standard of review. But there’s more.
“Scour the record” to defeat asylum claims that should have been granted below, huh?That clearly defective, biased, one-sided approach is “due process and fundamental fairness” for a “person” under our Constitution? Or maybe asylum seekers of color aren’t “persons” to VanDyke and his righty cronies? That’s how VanDyke would like the Constitution applied if his life were at stake?
He’d like to use legal mumbo-jumbo to allow refugees to have their lives ended or threatened by non-expert decision makers making it up as the go along to deny meritorious claims. Under his “standard of review,” judicial review would be no review at all. Just scour the record for any obscure reason to deny asylum or, failing that, just make one up. Doesn’t matter as long as the individual loses and gets removed! That’s pretty much what too many EOIR judges and BIA “panels” (which can be a single judge) are already doing. Why add another layer of intellectual dishonesty, moral corruption, and absence of judicial ethics to the mess?
Mr. Flores-Molina is not buy any means the only one subjected to Judge VanDyke’s loony right-wing legal nonsense.You can “meet” the judge right here:
“The Rude Trump Judge Who’s Writing the Most Bonkers Opinions in America.”
One might legitimately ask why already vulnerable asylum seekers and their courageous lawyers are being subjected to such judicial abuse at all levels of our system. Why doesn’t Garland just appoint “real, expert, fair EOIR Judges” who will do the right thing at the “retail level” without having to enter the “appellate circus” 🤡 that Trump and the GOP have created?
“[T]he BIA upheld an adverse credibility determination that the IJ reached in part based on an inconsistency in Reyes’s story that simply was not an inconsistency. Nor can we say that absent the adverse credibility finding, Reyes’s CAT claim would necessarily fail. We therefore must vacate the BIA’s ruling affirming the IJ’s denial of that claim. … Reyes’s petition for review is granted, the ruling of the BIA is vacated, and we remand for further proceedings consistent with this opinion.”
Here’s a key sentence from the preamble to the L.A. Declaration on Migration and Protection:
We are committed to protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers, and displaced and stateless persons regardless of their migratory status.
So I’d like to know how the following fit within our solemn commitment to “protecting the safety, dignity, human rights, and fundamental freedoms of all migrants, refugees, asylum seekers?”
Falsely finding that systematic assaults, death threats, being driven from your home, and being tracked down after fleeing, carried out by a Nicaraguan Government so repressive that it wasn’t even invited to the L.A. Conference, do not constitute persecution; and
Inventing a bogus inconsistency in an asylum seeker’s testimony and using it to wrongfully deny asylum.
Clearly they don’t! And, this kind of official misconduct goes on somewhere at EOIR on both levels every day! Just ask any experienced asylum practitioner! So, why hasn’t Garland replaced the EOIR judges who are not qualified to be deciding asylum claims with readily available expert talent?
Asylum seekers face systematically unfair treatment by “judges” who serve at Garland’s pleasure. Many of those judges, particularly at the BIA, were appointed or “elevated” by Garland’s openly xenophobic, virulently anti-asylum predecessors during the Trump regime. Yet, inexplicably, they continue to inflict bad decisions and sloppy, legally defective, morally vapid work on the most vulnerable? Why?
What if we had an expert, due-process-oriented Immigration Court that uniformly interpreted asylum law correctly and actually granted much-needed and well-deserved protection? What if asylum seekers didn’t have to enter the “Circuit Court crap shoot” — or deal with bad “no review is judicial review” judges like Judge VanDyke — to get life-saving justice? What if the rule of law and human rights were honored and advanced in Immigration Court rather than being mocked and disparaged? What if Immigration Courts modeled good judicial behavior instead of operating as a shockingly dysfunctional parody of due process, fundamental fairness, and best practices?
Wouldn’t it be better for everyone?
Perhaps there is some modest movement in the right direction. I’ve received reports from at least two Immigration Courts that unqualified Trump-era appointees have been removed over over the past week. That’s a start! But, it will take lots more “removals or reassignments” and a complete “redo” of the mal-functioning BIA to get due process, expertise, fundamental fairness, and best (as opposed to worst) judicial practices back on track at EOIR!
Check out this Federal Bar Association interview with Hon. Mimi Tsankov, President of the National Association of Immigration Judges. She explains on how she was drawn to a career in immigration law. Earlier this year, Judge Tsankov testified before Congress about the immigration court system backlog, necessary reforms, and related topics.
Here is an ABA panel discussion led by Tsankov on judicial independence.
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Judge Mimi Tsankov is “living proof” that there are leaders currently at EOIR with good ideas and a dynamic vision who could lead a due process/best practices reform effort. The question is why Garland and his lieutenants haven’t paid attention to them!
